the Defendant wage his Law the Oath of the Eleven which are Sworn de credulitate may be dispensed with by the Plaintiffs assent Vid. Mag. Charta c. 28. Note It was Adjudged in the King's Bench 19 Car. II. That if a Prisoner escape by the permission of the Sheriff yet he may be taken by the party at whose Suit he was condemned for it may be the Sheriff is Insufficient and it is no reason that his own Act should damnifie the Plaintiff Vide Hob. 202. Termino Sancti Hillarij Anno 20 21 Car. II. In Banco Regis Barnes versus Bruddel ACtion for these Words alledged to be spoken of the Plaintiff viz. She was with Child by J. S. whereof she Miscarried and concludes That by reason thereof she was so brought into her Fathers displeasure that he turned her out of Doors and that she was brought within the Penalty of the Statute of 18 Eliz. And in Maintenance of this Action a Case was cited out of Roll's 1st Part 35. inter Meadows Boyneham an Action was brought for calling of one Whore Per quod consortium amisit Vicin ' suorum and held it would lye And in Anne Davie's Case 4 Co. 17. it is held That since the Statute of the 18 Eliz. cap. 3. to say One had a Bastard would bear an Action But notwithstanding the Opinion of the Court was That such an Action would not lye unless a special Damage had been alledged as to say She had lost her Marriage as in Anne Davies's Case and the Reason upon the Statute alledged in the Case was said by Twisden to be of my Lord Coke's putting in for Iustice Jones affirmed to him there was nothing said thereof in the Case Anonymus IF a Tradesman contract Debts and after gives over Trading he may be afterwards a Bankrupt within the Statute in respect of the Debts contracted before And so it was said to be Ruled in Sir Job Harvies Case Anonymus A Warren may pay Tythes by Custom So of Doves in a Dove-house or Fish in a River Note It was said by Twisden That if a Libel be in the Ecclesiastical Court for a thing whereof they have cognisance altho' the party intitles himself to it by Custom no Prohibition lies Anonymus A Prohibition was prayed for that they Cited him to answer Articles in the Ecclesiastical Court and did not deliver a Copy of the Articles and it was granted quousque they should deliver the Copy But the Prohibition which was taken out was absolute which the Court being informed of they did not think fit to grant a Consultation but to discharge that Prohibition by a Supersedeas Whereupon they proceeded and Excommunicated the party for default of Answering Who again moved the Court for a Prohibition and one was granted with a Mandamus in it to absolve him if it were for not Answering before they gave him a Copy of the Articles Bains Biggersdale ERror to Reverse a Judgment in an Action of Debt upon a Bond in Rippon Court because it was entred upon the Record Assid ' damna ultra misas custagia ad 10 l and doth not say Occasione detentionis debiti or Occasione praedicta and the Iudgment was Quod recuperet damna praedicta and doth not say Per Juratores assessa Yet notwithstanding the Judgment was affirmed Billingham Vavasor ERror to Reverse a Judgment in Debt in the Court of York Assigned First In the Variance between the Count and Plaint for the Plaint was Entred Ad hanc Curiam venit queritur de Placito deb ' super demand ' 14 l and the Count was for 12 l but it was Answered That the certainty of the Sum needed not to be expressed in the Plaint and so Surplusage But otherwise it is of a Variance between the Original and the Count for the Writ must comprehend the certainty of the Debt and 2 Cro. 311. was cited where Debt was brought in the Common Bench for 40 s and after the Return of the Pluries Capias the Entry was Quod Querens obtulit se in plito deb ' 40 l and assigned for Error and disallowed But to that it was said That that was but a Misprision in the Entry of a Continuance which had a former Record to warrant it And here tho' the certainty of the Sum need not to have been expressed Vid. 3 Cro. 619. yet when it is the Plaint must not vary from it Et adjornatur Bourne versus Mason al' IN an Assumpsit the Plaintiff declares That whereas one Parrie was indebted to the Plaintiff and Defendants in two several Sums of Mony and that a Stranger was indebted in another Sum to Parrie that there being a Communication between them the Defendants in Consideration that Parrie would permit them to sue in his Name the Stranger for the Sum due to him they promised they would pay the Sum which Parrie owed to the Plaintiff and alledged that Parrie permitted them to Sue and that they Recovered After Non assumpsit pleaded and a Verdict for the Plaintiff it was moved in Arrest of Judgment That the Plaintiff could not bring this Action for he was a Stranger to the Consideration But in maintenance thereof a Judgment was cited in 1658. between Sprat and Agar Vid. 3 Cro. 619. in the Kings-Bench where one promised to the Father in Consideration that he would give his Daughter in Marriage with his Son he would settle so much Land After the Marriage the Son brought the Action and it was Adjudged maintainable And another Case was cited of a Promise to a Physician That if he did such a Cure he would give such a Sum of Mony to himself and another to his Daughter and it was Resolved the Daughter might bring an Assumpsit Which Cases the Court Agreed For in the one Case the parties that brought the Assumpsit did the Meritorious act tho' the Promise was made to another and in the other Case the nearness of the relation gives the Daughter the benefit of the consideration performed by her Father but here the Plaintiff did nothing of trouble to himself or benefit to the Defendant but is a mere Stranger to the Consideration wherefore it was adjudged quod nihil capiat per billam Herbert versus Merit A Prohibition was prayed to the Ecclesiastical Court for that the Defendant Libelled against the Plaintiff there for calling of her Impudent Whore which was said to be only a word of Passion and the later Opinions have been that unless some Act of Fornication were expressed that Prohibitions should be granted But the Court denied it in this case it being an offence of a Spiritual Cognizance and Eaton and Ailoffes Case 1 Cro. 78. and Pewes Case 329 were cited The Sheriff may Sell Goods he takes in Execution by a Fieri facias at any Rates if the Defendant denies to pay the Money Nota No Action of Debt lies against the Sheriff when the Party escapes who is taken upon a
a Jury But the Court inclined to grant the Writ for it did not appear that it was parcel of his Tenure but rather imposed upon him by the Custom of the Mannor and if Attorneys shall be discharged of the Service of the Common-wealth à fortiori of any private Service Vid. postea The King versus Webb IN an Action brought against him for imbesiling of the Kings Goods which was laid in the Declaration to be in London it was moved for the King that the County might be changed And the Court held the King might choose his County and might wave that which he had seemed to have elected before as he may wave his Demurrer and joyn Issue contra Perries Case IN an Information of Forgery against him being an Attorney of the Common Pleas it was alledged That he had framed a certain Writing in the Form of a Release at Sherborn and that he published and gave it in Evidence at Dorchester and the Venue came out of Dorchester whereas it was said it ought to have come out of both places To which it was answered That the publishing and not the framing was the Crime But notwithstanding it was held to be a Mis-trial and being in an Information it was not aided by any Statute Postea Anonymus IN Trover and Conversion amongst other things the Plaintiff declared de sex bovibus instead of bobus Vpon Not guilty pleaded and found for the Plaintiff and entire Damages assessed It was moved in Arrest of Judgment That the Jury ought to have given no Damages for bovibus being a word insensible and entire Damages being given it was naught for all To which it was answered That if the word be insensible notwithstanding the Anglice the Jury shall not be intended to have regarded it in the giving of Damages and if it hath a signification then it is well enough And it was said bovibus was an old Latin word and is found in Plautus and 't is bobus only by contraction It was also said That the Plaintiff brought this Action as Executor and the Trover was laid in the Testators time which was not sufficient tho' the Conversion was alledged in his own But the Court held neither of these Exceptions sufficient to Arrest Judgment Rumsey versus Rawson IN Replevin The Defendant Avowed for Damage Feasant The Plaintiff replies That the Parson of such a Parish and all his Predecessors have had time out of mind Common in the place where c. belonging to his Glebe and that the Beasts of the Plaintiff were Levant and Couchant upon the Glebe and he put them into the Common by the Licence of the Parson The Defendant Traverses that they were Levant and Couchant and found for the Plaintiff And it was moved in Arrest of Judgment That the Plaintiff had not alledged matter sufficient to justifie his Beasts going in the Common for no other Beasts ought to be put in the Common but those of the Tenant of the Land to which it is appendant or those which he takes to Compester his Land Fitz. N. Br. 180. b. and that tho' the Common be claimed for a certain number And the Opinion of the Court was That the Defendant might have demurred in this case But after a Verdict the Court shall intend they were Beasts which the Parson procured to Compester his Land and the right of the case is tryed so aided by the Statute of Oxford But they gave further time to shew cause Postea Anonymus AN Action was brought for these words Thou hast received Stoln Goods and knew they were Stoln Alice S. Stole them and thou wert partner with her For the first words the Court held them not Actionable for they might admit for a justifiable construction as if the Goods were waived But the last were holden sufficient for Partner with her must intend Partner in the Felony Skinner versus Gunter al. THe case was moved again by Pomberton and alledged in maintenance of the Action that it was but in the nature of an Action upon the Case for at the Common Law no Writ of conspiracy lay but for indicting one of a capital Crime and that after an acquittal by Verdict But since the Statute of 33 Edw. 1. de Conspiratoribus Actions have been brought for conspiring to Indict one of Trespass or to Sue one maliciously without cause of Action as this case is and so is Br. tit Consp pl. 2. and by F.N.B. 116. Such an Action in the nature of Conspiracy lies against one And the Title of the Action in this Case is In placito transgr super casum and for these Reasons all the Court were of Opinion for the Plaintiff Vid. Ante. Braithwaites Case BRaithwaite brought a Mandamus to the Mayor Bailiffs and Burgesses of the Town of Northampton to be restored to his place of Alderman there They make a Return and in their Return set forth the Letters Patents of 16 Car. by which they were Incorporated and power is given them of holding a Common Council consisting of a Mayor 2 Bailiffs and 48 Burgesses and that the Mayor Bailiffs and such Burgesses as had been Mayors commonly called Aldermen should have power upon just Cause to amove any Common Council Man from his place there and then they set forth how Braithwaite was a Member of the Common Council and had committed divers Offences which they expressed in particular Whereupon the 18 of Dec. 17 Car. the Common Council assembled together summoniri procuraverunt the said Braithwaite and he not coming to answer was the same day amoved ab officio suo loco suo in Communi Concilio per Majorem Burgenses authoritate secundum Chartam praedictam It was also set forth That they had a command from the Kin and Council to amove him Vpon this Return there were four Exceptions taken First That it did not appear that he was summoned for it ought to have been qui quidem Braithwaite postea summonitus fuir and not summoniri procuraverunt Sed non allocatur for it was held clearly to be all one Otherwise if it had been quod procuraverunt J.S. eum summonire A Second Exception was That their proceedings were too quick for they amoved him the same day wherein he was summoned Sed non allocatur for it appearing he lived in the same Town and refused to come to make his defence they might immediately amove him A Third Exception was That they had exceeded their power which was only to amove him from his place in the Common Council and they had amoved him from his Office Sed non allocatur for 't is that wherein his Office consists and indeed it was so averred in the Return But the main Exception was For that they had not as was alledged pursued their Authority for the Mayor and such Burgesses who had been Mayors have power given them to amove And here the Amotion is said to be per Majorem Burgenses so that it might be by
the Mayor and Burgesses which never had been Mayors and if in regard it was indefinite it should be intended that all the Burgesses were there and it may be the Amotion was by the Vote of such Burgesses as have not been Mayors they being the greater number and the others might dissent as if the Mayor and Court of Aldermen in London were impowered to do a thing and this is done per Cives Londini it cannot be good Sed non allocatur For First it shall be intended That all the Burgesses were there and that they all agreed in the amoving of Braithwaite And if the truth were that the Burgesses which were qualified dissented which must not be presumed they might bring an Action upon the Case for the false Return And further to enforce the intendment as before it is said to be per Majorem Burgenses secundum Chartam If it had been returned that he was amoved secundum Chartam generally that had not been good for there must be the manner returned That the Court may adjudge whether the Authority be pursued Nota hoc It was further declared by Keeling Rainsford and Moreton That the King and Council might Disfranchise any Member of a Corporation And it was said by Rainsford that the Walls of Northampton were ordered to be pulled down by the King and Council à fortiori an Alderman might be displaced upon just Cause and here was no Exception to the Causes returned But to this Twisden said nothing Anonymus Vid. 5 Co. 32. UPon a Fieri facias to Levy a Debt recovered against an Executor the Sheriff returned nulla bona whereupon after a Testatum c. a Writ was awarded to the Sheriff to enquire c. who returned that Goods to the value of the Debt came to the Executors hands elongavit vendidit disposuit ad proprium usum suum convertit And Issue was taken by the Party who came in upon a Scire facias quod non elongavit c. and the Iury found for the Plaintiff And it was moved by Saunders in Arrest of Judgment That there was no proper Issue neither did it appear that there was any Devastavit for the Executor may eloigne and sell the Goods therefore the Return and Issue ought to have been quod Devastavit Sed non allocatur for this tantamounts and the Presidents are so as 't is a good Warrant for a Capias in Withernam when the Sheriff returns that the Defendant in Replevin hath eloigned the Beasts so the Executor ought to be charged de bonis propriis upon his Return Wharton and Brooke IN an Action for Words the Plaintiff declared That she was and had been a long time a Midwife and got divers Gains and that the Defendant to scandalize her in her Profession said of her She is an Ignorant Woman and of small Practice and very unfortunate in her way There are few that she goes to but lye desperately Ill or die under her hands The Court held the Action maintainable But Twisden said this hath been Adjudged Where one brought an Action declaring she was a Schoolmistress and taught Children to Write and Read by which she got her Livelyhood and that the Defendant said of her She was a Whore and that J. S. kept her as his Whore That to slander one in such a Profession was not maintainable without special Damage Sir Thomas Player Chamberlain of London and Jones REsolved by the Judges That the By-Law in London whereby the Number of Carts were restrained was a good By-Law Walter and Chauner IN Trespass the Defendant Iustifies for Damage feasant The Plaintiff in his Replication prescribes for Common in the place where c. in this manner Until the Field was sown with Corn and after it was sown post blada illa messa until it was sown again To which the Defendant Demurs And it was said That this Prescription was unreasonable viz. To have Common in Land sown To which it was Answered and Resolved by the Court That as the Prescription was laid the Common was not claimed until after the Corn was reaped Nota Vpon a Fieri facias the Sheriff Returned That he had taken Goods and that they were rescued from him by certain Persons And it was held to be no Return and that he was to be Amerced Anonymus ONe recovers Debt and then brings a new Action of Debt upon the Judgment The Defendant pleads Tender of the Money before the Action brought uncore prist and the Plaintiff could have no Costs If the Defendant plead in Abatement of the Writ and the Plaintiff Demurs and 't is Adjudged against the Defendant it shall be only quod respondeat ulterius But if he alledge any thing in Abatement whereupon Issue is joyned and tryed and found against the Defendant there the Plaintiff shall have his Judgment to recover his Debt Skier and Atkinson IN an Action upon the Statute of 8 H. 6. of Forcible Entry the Secondary craved the direction of the Court before he could tax Costs and they were doubtful in it and rather inclined that the Plaintiff was to have no Costs But upon the view of Pilford's Case in 10 Co. and the Books there cited they resolved that he should have Treble Costs Crosse and Winter IN an Action for these Words Thou art of Thievish Rogue and didst steal Plate from Wadham Colledge in Oxford The Defendant Iustified for that he did steal the Colledge Plate The Plaintiff Replied De injuria sua propria The Words were alledged to be spoken in London and thither the Venire facias was awarded and there was a Verdict for the Plaintiff It was moved in Arrest of Judgment That there was a Mis-Trial for the Iury ought to have come out of Oxford for the Issue is joyned upon the Matter in the Justification and the Words are confessed Hob. 76. And with this agrees Ford and Brooke's Case in 3 Cro. 361. expresly But it was Resolved by the Court That this was aided by the late Statute made at Oxford being tried by a Jury of the proper County where the Action is laid tho' the Issue upon pleading may arise out of another place and County Note An Act of Parliament was made to continue for Three years and from thence until the end of the next Session of Parliament Vid. Hob. 78. and no longer And it was Resolved that this must be intended a Session which commences after the Three years expired For if a Session should be within the Three years and continue for many years after the Act would continue Note It cannot be called a Session of Parliament unless the King passes an Act. The King and Serjeant UPon a Certiorari to remove a Conviction of Forcible Detainer by the View of two Iustices upon the Statute of 15 R. 2. The Record Returned was Questa est nobis Jana Wood Vid ' quod quidem pacis Domini Regis perturbatores in domum mansional '
Award After nullum fecere Arbitrium pleaded The Plaintiff replies and sets forth That they submitted to the Award of 4 so that they made it by the 16th of Nov. and signified it under the Hands and Seals of two of them and then alledges the Award under two of their Seals to which the Defendant demurred conceiving the Award to be void because the submission was to four But the Court gave Iudgment for the Plaintiff according to the Cases in 2 Cro. 276. and 400. Anonymus IN an Indictment for the using of a Trade contrary to the Statute of 5 Eliz. It was said That to keep a Shop within a Country Village was not within the Statute and it were very inconvenient that the Inhabitants must go to some great Town upon every occasion And it was also Juratores dicunt super Sacramentum suum and not adtunc ibidem jurati If a Statute appoints an Indictment to be taken at the Quarter Sessions the Caption must be Entred ad Quaterial ' Session ' c. for ad General ' Session ' pacis will not serve Jackson versus Gabree JAckson took out a Capias ad satisfaciend ' against Gabree and his Wife the Gaoler lets the Husband escape The Court was moved that the Wife might be discharged alledging that the Husband took no care of her but let her lie there in a very necessitous Condition They were doubtful what to do in it at the first motion but did afterwards resolve That unless the Plaintiff would get the Husband taken again as he might do they would discharge the Wife and they said the Escape of the Husband was the Escape of the Wife Anonymus AN Infant brought an Assumpsit by his Guardian and declared That whereas the Defendant entred into his Close and cut his Grass that in consideration that he would permit him to make it Hay and carry it away he promised to give him six pounds for it and he also declared for six pounds Debt more that he ought him Vpon this Declaration the Defendant demurred supposing it to be no Consideration for the Infant was not bound by his permission but might Sue him notwithstanding and then the promise to pay six pounds Debt was not good because not declared how indebted But the Court gave Iudgment for the Plaintiff Sir Henry Frederick Thynne versus Sir James Thynne PAsch 13 Car. 2. B.R. Rot. 448. Vpon a Special Issue directed out of Chancery the Case was thus One was seized in Tayl of the Mannor of B. and of two Closes which in reality were not part but reputed part thereof and suffered a Recovery only of the Mannor with the Appurtenances and whether the Recovery was a Bar as to the two Closes was the Question And in the 16 year of this King it was resolved by all the Court and Hide Chief Justice delivered the Opinion of the Court That the Lands reputed parcel of the Mannor should pass by reason of the Deed of Covenants to lead the uses which explained the intent Dier 223. 1 Cro. Sir George Symond's Case Hob. 177. Dier 376. Long 5 to E. 4. 303. 6 Co. Sir Moyle Fynch's Case Modern Rep. 250. Termino Sancti Hillarij Anno 21 22 Car. II. In Banco Regis Wilbraham versus Snow IN an Action of Trover the Plaintiff declares That he was Owner and possessed of certain Goods and sets them forth particularly and that they came to the Defendants Hands who converted them c. The Defendant pleaded Not guilty and the Jury find this Special Verdict That the Plaintiff was Sheriff and that he took the Goods into his Possession by force of a Fieri facias and that the Defendant who was also Defendant in the Execution took them away And then they demand the Iudgment of the Court if the Plaintiff could maintain this Action It was said that he might Because he was answerable over to the Plaintiff in the Execution at whose Suit he took them and could not return that they were taken away And if he returns that he hath taken Goods sufficient and after looses them he is bound to answer the value as returned A Bailée of Goods shall bring Trespass quare bona sua cepit And Rolls 5. a Carrier from whom Goods are taken may bring Trover But it was argued on the other side That the property is in the Defendant notwithstanding the seizure Dier 99. a. and Yelverton 44. And the Sheriff had but an Authority in Law to Sell as Commissioners of Bankrupt have of the Estate of the Bankrupt per 13 Eliz. 7. or Executors upon a Devise that they shall Sell Land c. but Trespass he might bring because of the Possession but Trover cannot be maintained without property But the Court held that the Action was maintainable And that the reason was the same as in the Case of the Carrier and also held that the Defendants Property ceased by the Seisure And also that if a Man becomes a Bankrupt after that the Commissioners have granted over his Goods he cannot meddle with them 1 Cro. 106. So by the Opinion of Keeling Rainsford and Moreton haesitante Twisden Iudgment was given for the Plaintiff Gavell and his Wife versus Burket AN Action was brought for these Words spoken of the Wife You are a Pimp and a Bawd and fetch young Gentlewomen to young Gentlemen and Declared of a Special Damage The Jury gave a Special Verdict and found the Words spoken but not the Damage as the Plaintiff had Declared Now whether the Words were Actionable of themselves was the Question And it was Agreed that no Action would lye for calling one Bawd or Pimp 1 Cro. 286 Dimock's Case Rolls 44. pl. 10. But to say one keeps a Bawdy-house it will lye 27 H. 8. 14. an Indictment lies for Keeping of a Bawdy-House because it is a Common Nusance but here the subsequent words expound in what sense the former words should be taken that is To bring Gentlewomen to Gentlemen for Bawdry which is as much as keeping a Bawdy-house and 1 Cro. was cited where Judgment was given for these words Thou keepest a House worse than a Bawdy-house and keepest a Whore in thy House And in 3 H. 7. it is said that Constables ought to apprehend Bawds But the Court inclined that the Action would not lye for a Bawd was not punishable in our Law unless for Keeping of a Bawdy-House it being a Crime of Ecclesiastical Conusans Sed Adjornatur Thomlinson versus Hunter TRespass Quare clausum fregit arbores succidit ad valentiam decem librarum 5 Co. Player's Case To which the Defendant Demurred generally The Plaintiff prayed Judgment for Breaking of his Close but as to the other the Declaration was Insufficient because not expressed what kind of Trees Anonymus A Writ of Error was brought upon a Judgment given in Ireland It was held that a Day ought to be given by Rule of Court to the Plaintiff to assign his Errors or else to
Berwick is part of Scotland and bound by our Acts of Parliament because Conquered in Edward the Fourth's time But the course is to name it expresly because 't is out of the Realm and not like to Wales where the Trials in such Cases shall be out of the prochein County 19 Hen. 6.12 for that is a Member of England Vid. 7 Co. Calvin's Case But two Presidents being shewn where the Trials were as it is here and one of them affirmed in a Writ of Error also the Case in Rolls tit Trial 597. A Writ of Error was brought to Reverse a Judgment given in Ireland and an Error in Fact was assigned and tryed in a County next to Ireland The Court Ruled the Venire to be well awarded Twisden said The Reason why an Ejectment would not lye of Lands in Jamaica or any of the Kings foreign Territories was Because the Courts here could not command them to do Execution there for they have no Sheriffs This Case having remained two or three Terms since the Postea was Returned and no Continuances Entred one of the Plaintiffs died and it was doubted whether Judgment could be now Entred And the Secondary said That they did Enter up Judgments two Terms after the Day in Bank as at the Day in Bank without any Continuances And of this Matter the Court would be Advised Postea Anonymus IF one upon Complaint to two Justices 1 Cro. Prigeon's Case be Ordered to keep a Bastard Child and this upon an Appeal to the Sessions is revoked that Person is absolutely discharged and unless a Father can be found the Court said the Justices of Peace must keep it themselves The Earl of Peterborough versus Sir John Mordant IN an Action upon the Statute de Scandalis Magnatum for speaking these Words of the Plaintiff I do not know but my Lord of Peterborough sent Gybbs to take my Purse After Judgment by Default and a Writ of Enquiry of Damages returned it was moved in Arrest of Judgment that no Action would lye for these Words First He doth not positively charge him with it Again The Words do not import a Felonious taking Hob. 326. Mason's Case I charge him with Felony for taking Money out of the Pocket of H. Stacie adjudged not Actionable And in 1 Cro. 312. Thou didst set upon me and take my Purse go before a Justice and I will charge you with Felony It was held there that no Action would lye But the Court gave Iudgment for the Plaintiff As to the first it was held as much as a direct Affirmation for otherwise one might slander another and by such a slight Evasion escape an Action Twisden said He knew these Words adjudged Actionable He hides himself for Debt and for ought I know is a Bankrupt And for the Words the Court said Three was difference between an Action grounded upon the Statute de Scandalis Magnatum and a Common Action of Slander The Chief Justice said The Words in the one case shall be taken in mitiori sensu and in the other in the worst sense against the Speaker that the Honour of such Great Persons may be preserved More 55. The Earl of Leicester had Judgment for these words My Lord of Leicester is a Cruel Man an Oppressor and an Enemy to Reformation Leon. 33. The Lord Abergavenny sued for these words My Lord Abergavenny sent for us and put some of us into the Stocks some to the Coal-house and some to the Prison in his House called Little Ease And Recovered Vide Crompton's Jurisdiction of Courts 13. and Leonard 336. Anonymus AN Indictment was Compertum fuit per Sacramentum duodecim proborum legalium hominum c. and quashed because it was not jurat ' onerat ' And the Clerk of the Crown-Office Informed the Court that that was always the Course also it must be Adtunc ibidem jurat ' where the Caption is recited to be taken Williams versus Gwyn ERror to Reverse a Judgment given in Dower in the Grand Sessions in Wales It appeared by the Record that the Tenant appeared upon the Summons Returned and Day was given over adtunc venit per Attornatum nihil dicit in barram Whereupon Consideratum est quod tertia pars terr' tenemen ' capiatur in man ' Domini Regis and Day was given ad audiend ' Judicium at which Day Iudgment was given quod recuperet It was Assigned for Error that the Court here had awarded a Petit Cape and yet the Defendant appeared whereas they should have given Iudgment upon the Nient dedire for a Petit Cape is always upon default after appearance and only to answer the Default The Grand Cape is before appearance to answer the Default and the Demand Vet. N. B. 97. So it was said the Court had erred in Judgment and tho' it were in advantage of the Tenant by the delay yet not being by his Prier as an Essoign granted where none ought to be is not Error but the act of the Court as if they should Enter a Misericordia for a Capiatur it were Erroneous But the Court answered That the reason of that was Because it is parcel of the Judgment and the King should lose his Fine But this was only the awarding of Process more than should be and in advantage of the Tenant wherefore they resolved that they could not Reverse it for Error And Twisden said Admitting it were Erroneous they might then give Iudgment in this Court Anonymus A Prohibition was prayed to the Arches for Libelling against one there for calling Whore and Baud because they were but words of Heat also the Party lived in the Diocess of London so against 23 H. 8. to Cite him there But the Court would not grant it for though formerly there hath been divers Opinions touching these words yet Twisden said ever since 8 Car. the Law hath been taken that they may punish such words pro reformatione morum And for the other it appeared Sentence was given and that it was too late to pray a Prohibition when it appears they have Iurisdiction of the Cause as the Superiour Court and he that would have the benefit of the Statute against citing out of the Diocess must come before Sentence 1 Cro. Anonymus FInch Solicitor moved for a Prohibition to the Ecclesiastical Court to stay a Suit for Tythes of Hopps commenced there by the Vicar upon a Suggestion that they had paid for all Tythe Hopps so much an Acre to the Parson time out of mind But it was denied for there could be no such Composition time out of mind Hopps not being known in England until Queen Elizabeths time for then they were first brought out of Holland though Beer is mentioned in a Statute in Henry the Fourth's time But it was said by the Court That perhaps the Vicaridge was Endowed time out of mind of the small Tythes of which nature Hopps were Then the prescription of paying of Modus to
warranted by the Writ so to do and if Iudgment be given after the Teste and before the Return of the Writ of Error the Record shall be removed but if Iudgment be entred after the Writ is returnable the Writ is only to be returned and that no Iudgment is yet given and here was an omission in the Plaintiff that he did not see that Iudgment was entred for after a Writ of Enquiry of Damages returned the Court is to give Iudgment at the prayer of either Party and not without Note If the Record vary from the Writ of Error yet the inferiour Court ought to remove it The King versus Ledgingham IN an Inormation against him for the King the Court took a privy Verdict and so it was said was the usual course at the Assizes But it cannot be so in case of Felony and Treason as is said in the 1 Inst 227. b. In cases of Life and Member if the Jury cannot agree before the Judges depart they are to be carried in Carts after them so they may give their Verdict out of the Country Polus versus Henstock IN Trespass for impounding of 11 Oxen. The Defendant Pleads That Sir H. Vernon was seized of a Close called the Cowes Lesowe in Fee and Let it to him for 99 years and that the Cattel came upon the Close and so justifies for Damage Feasant The Plaintiff Replies confessing Sir H. V's Estate and the Lease and saith that Sir H. V. was seized of another Close adjoyning called Browns Close and alledges a Custom in Peplow in which Town both the Closes are that all the Occupiers of the Cowes Lesowe had maintained a Fence against Bowmers and that the Cattel came upon the Land in default of the Fence c. and Issue taken upon the Custom and found for the Plaintiff It was moved in Arrest of Judgment First That this was in the nature of a Prescription and not of a Custom for a Custom cannot be laid in a Ville and applied to a particular place or Inhabitant therein unless in case of a Coppyholder where it is necessary in regard he cannot prescribe 4 Co. 113. Secondly If it had béen alledged by way of Prescription it should be laid in him that had the Inheritance And if it be objected that it is hard to drive a Stranger to discover that then it ought to be alledged quod omnes Tenentes but not as it is here omnes Occupatores 1 Cro. Baker and Breremans Case Thirdly By the Vnity this Duty of Fencing is extinguished and shall not revive though the Closes come after into several Hands In Dier 295. b. it is left a Quaere But in Popham 172 it is clearly held so where it is said things of necessity shall revive as a Way to Market or Church but not so of Easments 1 Cro. Baker and Breremans Case And of this Oppinion were the Court. Jones versus Powell THe Plaintiff declared that he was an Attorney and the Defendant to Scandalize him in his Profession said of him That he could not read a Declaration By reason of which many of his Clients left him And the Opinion of the Court inclined against the Plaintiff For the Allegation of Special Damages will not maintain the Action unless the words import some Slander which these did not unless brought in by some words precedent touching his knowledge in his Profession for the Declaration might be so written that he might not be able to read it without any Imputation of Ignorance Sard versus Ford. MIch 21. Car. 2. In an Action upon the Case the Plaintiff declared That he was seized of the Mannor of Newton Abbot and that he c. had kept a Market there every Wednesday and used to have the profits of Stallage c. That the Defendant had erected a new Market at a place 7 miles distant from the Plaintiffs held every Tuesday c. Jones excepted to this Declaration for that it could not be to the hindrance of the Plaintiff's Market which was 7 miles off and kept upon another day 22 H. 6. 14. 2 Rolls 140. It appears that an Action was brought against one that levied a Market not above 5 miles distant and upon the same day Curia contra The Writ of ad quod damnum doth not express the Market to be erected the same day and notwithstanding it will hinder recourse to the other Market Anonymus A Dean and Chapter made a Lease of Tythes for years the Lessée assigned over his Interest and afterwards the Dean and Chapter bring Debt against him for the Rent Who Pleads That the Plaintiffs accepted the Rent due since the Assignment from the Assignee to which the Plaintiffs Demurr Jones This is no Rent but a méer Sum in gross due upon the Contract therefore in the 5 Rep. in Jewells Case it appears that such a Rent cannot go to the Successor of a Bishop for the Successor of a Sole Corporation cannot Sue upon a Personal Contract to his Predecessour If the Reversion be granted over the Grantee cannot bring Debt 2 Rolls 447 451. 1 Inst 47. a. By the same Reason the Assignée of the Lease is not liable Again The Acceptance is not well pleaded for it is only Acceptaverunt Whereas a Corporation aggregate cannot accept but by Bayliff and an Acquittance must be given Saunders contra This is not a meer Sum in gross but in the nature of a Rent as is held in Valentine and Dentons Case 2 Cro. 111. If it were a sum in gross no Action could be brought until all the days of payment were incurred 1 Inst as upon a Bond to pay Money at several days Also the pleading of Acceptaverunt is good for it being such a Corporation as can accept necessary circumstances are ever implied as Livery in a Feoffment such a Corporation in an Assumpsit shall declare of a Promise made to them which yet must be by means of their Bayliff or Attorney The Court held this last Matter to be most doubtful And Twysden and Rainsford said it might be questioned whether after acceptance of the Assignée the Lessor might not resort to his Lessee for his Rent It is delivered in Walkers Case thus fuit dit not as a Resolution 3 Co. Et Adjurnatur Catterel versus Marshal ERror to Reverse a Judgment in an Assumpsit brought by Marshal in the Common-Pleas wherein he declared that he being sued in the Kings Bench retained Catterel for his Attorney who in Consideration of 30 s given him and that he would enter into a Bond with sufficient Penalty to save him harmless promised to get Bail filed for him and Avers that he did give him Bond with a great and sufficient Penalty c. The Defendant Pleads Non Assumpsit and found for the Plaintiff and he had his Iudgment Now it was assigned for Error that he did not express of what Penalty the Bond was that it might appear to the Court to be sufficient as if one avow for a
Entitle him to the Penalty and here the declaring that he broke the Covenants without shewing which or how is altogether insufficient though the Defendant who pleads in the Negative might have pleaded non infregit conventiones Vid. Rastals Entries 162. Pl. Com. 5. A President just agreeing to this Case But the Opinion of the Court inclined for the Plaintiff here Sed Adjornatur Vide Postea Anonymus A Mandamus was prayed to the Ecclesiastical Court to Swear two Churchwardens elected by the Parish surmising that so was the Custom in that place but that the Bishops Officers had refused to admit them upon pretence that the Parson ought to chuse one And it was granted Vid. 2 Rolls 106 107. 3 Cro. 551 589. such a Writ granted The Case of the City of London and Coates COates who was Imprisioned in Newgate by the Court of the Lord Mayor and Aldermen brought an Habeas Corpus and the Sheriffs returned that the Custom of the City was That if any Freeman hath Forestalled any Fish coming to any Market within the City and complaint made thereof to the Court of Aldermen and he appearing there confessing the same and they ordain that he shall desist from such Forestalling and he will not promise to obey but declares in Court That he will not obey their Order That the Court there had time out of mind used to Commit such Freeman until he signified to the said Court that he would conform himself Then it is Returned That complaint was made to the said Court that this Coates had Forestalled a great number of Lobsters whereupon they caused him to appear which he did and confessed the same and they ordained that he should desist from such Forestalling but he said Obstinately and in Contempt of the Court That he would not obey their Order whereupon they committed him to Newgate until he should signifie to the Court that he would conform himself or otherwise he delivered by due course of Law The Return being Filed It was moved by the Attorney General That is was insufficient for a Custom to commit a man for Forestalling is void and that Offence was always Bailable and so it appears by the Register But here the Commitment is to remain in Prison without Bail or Mainprise Also the Commitment is upon a Complaint without Oath which ought not to be neither ought they to extort a Promise from him to observe their Order admitting it to be Legal for an Oath cannot be imposed upon a Man to keep the Law Besides The Custom is absurd to Commit a Man to Prison until he submits to the Court whereas a Man in Prison cannot come into Court to make such Submission and then suppose they will keep no Court must a Man lie in Prison whilest they do Then the Custom as it is laid reserves the discharge of him only to themselves for it is said or by due course of Law This Imprisonment looks in the Face of Magna Charta which saith nullus liber homo Imprisonetur c. in all Offences Finable the Imprisonment is only to be until the Fine is paid if the Fine be tendred there is to be no Imprisonment at all and so resolved in Parliament Br. tit Imprisonment 100. To this it was answered by Jones on the other side That the Imprisonment in this case was not for Forestalling but for the Contempt to the Court. It is returned that he confessed the Fact and yet declared that he would not conform himself to the Order of the Court the Proceeding is very mild not to punish for an Offence unless committed after an Admonition in Court It is implied in the Custom That he may be delivered by due course of Law it is sufficient to express that in the Commitment and so it is Also he cannot be prejudiced by the deferring of Courts for the Custom is returned to keep the Court of Aldermen twice a Wéek It is not that he shall come in person and submit to the Court but that he shall signifie his conformity to the Court which may be done by Letter or Message and it is returned that he did not by any means submit himself Twisden The Custom doth not here come in Question The Commitment is returned to be for a Contempt to the Court It must be allowed they have such power for they are a Court of Record Langham was Committed for refusing to take the Oath usually administred to Sheriffs and resolved to be good because it concerned the Government The City hath the Regulation of Trade and Orders made by them that one Man should not use the sign of another and for distinguishing Trades Viz. That a Plaisterer should not use the Trade of a Bricklayer and such like have béen allowed Wherefore the Court remanded the Prisoner he promising to make submission at the next Court and the Sheriff promising he should be discharged thereupon Phillips versus Kingston HIll 22 23 Car. 2. In an Action of Slander the words were He hath broke three or four of his Fathers Ribbs of which he shortly after died and I will complain to a Justice of him He may be hang'd for the Murder altho' it were done twenty years since After Verdict for the Plaintiff it was moved in Arrest of Judgment that he did this hurt to his Father against his will as it might be intended and tho' the Defendant said he might be Hanged for it that is but his Iudgment and Collection thereupon As Jacob and Mills's Case 2 Cro. 343. where the words were Thou hast poysoned Smith and it shall cost me an hundred pounds but I will have you hanged for it And it was Resolved that an Action did not lye because it might be unwillingly done Hob. 6. Also it is not averred that the Father was dead and that is necessary for otherwise it shall be taken that he is alive and then 't is no Slander and so is Yelverton 21 and Hob. 6. But the Court held That the Plaintiff must have his Judgment for taking all the words together the Defendant must necessarily intend a murdrous Killing and for the not averring that he was dead Twisden said the latter Opinions have all been that this is not necessary and the Action lies unless it appears upon the Record that the party is alive Anonymus IN an Action for Words the Plaintiff declared that he was a Woollen Draper and the Defendant said of him You are a cheating Fellow and keep a false Book After Verdict for the Plaintiff it was moved in Arrest of Judgment that the words might not be intended to relate to his Trade for they were capable of another sense and there was no colloquium of his Trade Sed non allocatur For they must be intended of a Debt-Book which Shop-keepers keep and to say such an one keeps a False Book it is a great slander to him in his Trade Vid. 1 Cro. 403. Twisden cited a Case Where Roberts an Attorney brought an
not to be removed out of Corporation Courts where they are held before an Utter Barrister so that 't is far better for the Corporation to have such an one their Recorder Twisden said The case of Bernardiston differed besides that he apprehended he had much of the favour of the times in it for he that was tried before him for having two Wives was arraigned before him not as Recorder of Colchester but as a Commissioner of the Gaol delivery neither was it returned That he was Summoned which was said not to be material because they could not have examined the matter It was returned also That he absented himself for nine Months but not set forth that any Court was held during that time or any occasion for it He said That Cholmley Recorder of Lincoln was turned out of his place for trying the Accessory before the Principal and altho' there be no Special Fact returned here yet it may be tried in an Action upon the Case The Court said They would look upon Bernardistons Case Et Adjornatur Anonymus A Prohibition shall not go to the Admiralty to stay a Suit there for Mariners Wages tho' the Contract were upon the Land For First It is more convenient for them to sue there because they may all joyn Again according to their Law if the Ship perish by the Mariners default they are to lose their Wages therefore in this special Case the Suit shall be suffred to proceed there Dier versus East WHere by the Statute of Ed. 6. It is ordained That striking in the Church-yard shall be Excommunication Ipso facto this tho' it takes away the necessity of any Sentence of Excommunication yet he that Strikes doth not stand Excommunicated until he be thereof convicted at Law and this transmitted to the Ordinary Theodore Morris's Case HE was indicted of Murther in Denbigh and obtained a Certiorari to remove it into this Court in order to have it tryed in an adjacent English County And it was moved whether by Law it might be The Statute of 26 H. 8. cap. 6. empowers the next English County to take Indictments of Treasons and Felonies committed in Wales and to try them but here the Indictment was taken in a Welsh County Herbets Case in Latch was cited who was indicted at Montgomery and tryed at Salop and Plowden Matters del corone avenants a Salop and Southley and Prices Case 3 Cro. is That the Statute doth not extend to a Tryal upon an Appeal In Chedleys Case a Certiorari was granted as here to remove an Indictment found in Anglesy which was afterwards tryed in the next English County 3 Cro. 331. And the Court held that so it might be here Large versus Cheshire HIll 22. and 23 Car. 2. Rot. 520. In Covenant the Plaintiff declared upon Articles of Agreement between him and the Defendant whereby the Defendant covenanted to pay him such a Sum the Plaintiff making to him a sufficient Estate in such Lands before the Feast of St. Thomas next ensuing the date of the Deed and then he saith that licet he the Plaintiff semper a tempore confectionis scripti paratus suit ad performand ' all the Agreements of his part usque ad diem Exhibitionis bille the Defendant had not paid the Money The Defendant pleaded quod ipse obtulit solvere the Money aforesaid apud Derby si le Plaintiff faceret ei bonum sufficient ' Statum de in Premissis c. The Plaintiff replied Protestando That the Defendant did not offer the Money pro placito that he the 21 of Decemb. apud Derby fecit sigillavit quandam Chartam Feoffamenti whereby he conveyed the Premisses to the Defendant and that he came to the Premisses an hour before Sun-set the same day paratus ad deliberand ' seisinam c. quod Desendens nec aliquis ex parte illius venit ad recipiend ' c. to which the Defendant demurred and adjudged for him It was held That these words ipso faciente bonum statum were a Condition precedent to the payment of the Money therefore the Plaintiff in his Declaration should have averred the performance of it particularly and not by such general words that he had done all on his part And it differs from the Case where in Assumpsit the Plaintiff declared That the Defendant in Consideration the Plaintiff should permit him to enjoy such Land for seven years that he would pay him pro quolibet anno 20 s and the Action was held well brought within the seven years for that it was Executory contract for every of the years according to the intention of the Parties It was resolved also That the Replication was insufficient for that the Plaintiff having Election to make what Conveyance he pleaded he ought to have given notice to the Defendant that he would execute this Charter of Feoffment by Livery for it might have béen by Enrollment But Hale said The time when in this Case was not necessary to be in the notice because the Charter was sealed and delivered upon the extream day limited by the Agreement so the Defendant knew it must be upon that day so for the place because it is a local thing and must be done upon the Land But because he had set forth no notice given to the Defendant that he would make Livery the Replication is insufficient as if a Man be bound to Levy a Fine he must shew whether he will do it in Court or by Dedimus and the Court said if the Defendant had refused to accept of Livery the Plaintiff might as well have brought the Action as if he had actually made it Sacheverel versus Frogate IN Covenant the Plaintiff declares That Jacinth Sacheverel was seized in Fee and demised to the Defendant certain Lands for 21 years rendring to him his Executors Administrators and Assigns 120 l Annually during the Term By force of which Lease the Defendant entred and that J. S. Devised the Reversion to the Plaintiff and died and for Non-payment of Rent accrued since his Death he brought the Action and to this Declaration the Defendant demurred And it was argued by Winnington That the Rent determined by the Death of the Lessor as where the Lessor reserves the Rent only to himself 1 E. 4. 18. 27 H. 8. 19. Dier 45. Com. 171. the Heir shall not have it for reservations are taken strongliest against the Lessor so where the reservation is to the Lessor his Executors and Assigns it continues but for his Life Co. Lit. 47. a. 'T is true Here is also added Durante Termino and in Mallories Case 5 Co. where the reservation was to the Abbot or his Successors during the Term it went to the Successor but that was because they expounded or as a Conjunctive for if Successor had béen left out I suppose it would have been resolved otherwise Richmond and Butchers Case 1 Cro. 217. is in point that the Heir shall not have it So 2 Rolls 451.
an one carries an Evidence of fraud yet is not upon that account only always to be reckoned fraudulent or to be avoided by a Purchaser upon a valuable Consideration Thirdly Whereas it was objected That the Trust of the Term which was but a Chattel could not be Entailed and therefore the Term was liable to the Rent notwithstanding the Assignment of it and limiting the Trust as before It was answered and resolved by the Court that if it had béen a Term in Gross in F. D. the Trust of it could have been no more Entailed than the Term it self but F. D. having the Term in Point of Interest and at the same the Trust of the Inheritance might Entail the Trust of the Term to wait upon the Inheritance and that the Chancery does every day allow which they should take notice of But then it was objected that he ought to have limited the Trust of the Inheritance and of the Term both together but F. D. by a distinct Clause in the Deed limits the Trust of the Term which divides it and makes it independent upon the Inheritance the Trust of which he limits by another Clause To that it was said by the Court that tho' the Limitations were by several Clauses yet all must be taken as one entire Conveyance And Hale said that in 1646 a Lease for years was assigned and the Trust of it Entailed and two days after the Trust of the Inheritance Entailed in the same manner and it was held by the best Counsel then in England that tho' this were done by several Deeds and at several times yet being in pursuance of one Agreement that all was to be taken as one entire Act according to the Case of 17 Jac. where a Fine was levied to Lessee for years with an intent that he should suffer a Recovery which was had the Term following and resolved that his Term was not drowned The Jury hearing the Opinion of the Court found for the Plaintiff for all save a 12th part for so much was drowned and surrendred by the Assignment of F. D. to Sir W. S. one of the six Joynt-tenants of the Reversion Wood versus Coat AN Action for words That the Defendant being indicted of a forcible Entry at the Sessions and the Plaintiff produced as a Witness for the King and Swore nothing but what was true the Defendant after habens colloquium of the said Oath said The Plaintiff took a false Oath against me at the Sessions innuendo the said Oath c. After Verdict for the Plaintiff it was moved That the Action did not lye for the Defendant might mean an Extrajudicial Oath In Pritchards Case 2 Rolls where one said of him He took a false Oath against me at the Assizes It was held that the Action did not lye Sed non allocatur for in that case there was no colloquium laid which is alledged in this case and shews to what the words spoken did relate Bradnox Case A Habeas Corpus was brought to remove the Body of Broadnox who was taken by Process upon a Plaint exhibited in the Court of the Sheriffs in London and it was returned That time out of mind the Mayor Aldermen and Common Council of the City have had the Government and Regulation of Trade within the City and power to make By laws concerning the same and that they had made a By-law that there should be but 420 Carrs allowed to work within the City all which should be Licensed by the President of Christs Church Hospital and that there should be paid for the License of every Carr 1 l Fine and 17 s per annum to the said President to be employed for the use of the Poor within the Hospital and that none should use a Carr without such License under a certain penalty to be recovered c. Provided That all persons may send their own Carrs to the Wharfs c. and carry Goods in their own Carrs from Wharfs except such as shall be Traders or Retailers in Fuel That B. without such License wrought with a Carr pro lucro suo proprio and for the penalty forfeited thereupon a Plaint was levied against him c. It was prayed that there might be no Procedendo in this Case for tho' the By law should be admitted to be good having a Custom to warrant it as was ajudged in this Court 19 Car. nunc between Player and Jenkins yet it appears that the Plaint is insufficient for in that no Custom is alledged and in 1 Rolls 364. such a By-law to limit the number of Carrs was held void for there no Custom is alledged to ground it upon and then a By-law cannot restrain Trade Again 't is unreasonable that such as Trade in Fuel should not be permitted to bring home the Wood which they buy in the Country in their own Carts or to carry it out to their Customers for tho' they might limit the number of Carmen which in too great a multitude would be a Nusans and infest the Streets yet they cannot restrain a Man from using his own Carrs to carry his own Commodities As to the First The Court were of Opinion that it was not necessary to mention the Custom in the Plaint for 't is Lex loci and they take notice of their own Customs in their own Courts As in Norwich the Custom is that in Debt upon a Specialty the Debtor fatetur Scriptum sed petit quod inquiratur de debito and no Custom is set forth in the Record to warrant that But here in the Habeas Corpus they have returned the Custom which shews they had good cause to proceed upon their Plaint for it hath béen often resolved that Custom may create a Monopoly as the case in the Register is a Custom was that none should exercise the Trade of a Dier in Rippon without the Archbishop of Yorks License As to the Second the Court doubted whether this By-law could be adjudged reasonable or good because it would restrain the Woodmongers from bringing their Wood c. home in their own Carrs so that tho' they brought it in the Country Carts as far as the Liberties of the City they must then unload and put it in City Carrs which would be extreamly inconvenient and so it would be if they should send City Carrs to fetch it and tho' it might be reasonable to prohibit them carrying their Commodities out in their own Carrs that they might not have so great an opportunity to cheat in their Measures yet there could be no Colour to restrain them from bringing them in Et Adjornatur Cuts versus Pickering UPon a Trial at Bar one Baker who had been Solicitor for Pickering was produced as a Witness concerning the Razure of a Clause in a Will supposed to be done by Pickering The Court were moved Whether he could be Examined touching this because having been retained his Solicitor he should by reason of that be obliged to keep his Secrets But it
Respondeas Ouster But because the Plaintiff said he would be content with the latter that was not Resolved Anonymus IN Trespass Quare clausum fregit 't is a Plea in Abatement to say That the Plaintiff is Tenant in Common with another But cannot be given in Evidence upon Not Guilty as it may where one Tenant in Common brings Trespass against the other Peters versus Opie THe Case was moved again and Hale held clearly that the Promise being pro labore tho' there was also a Counter-Promise did carry in it a Condition precedent viz. That the work should be done first And he said that in Cases tried before him where the Declaration was upon Reciprocal Promises if it appeared upon the Evidence that the Intention was that the Plaintiffs part was to be performed before the Defendants he directed against the Plaintiff and would not have the Defendant driven to his Cross Action Twisden strongly to the contrary Pro labore says he is no more than would have been implied if those Words had been omitted then 't is within the Case of Reciprocal Promises The Case cited in Ughtred's Case 7 Co. A. Covenants to B. to serve him in the Wars B. Covenants to pay him so much for it an Action lies for the Money without averment of the Service done because of the mutual Remedy Hale was now of Opinion that the Plaintiffs saying parat ' fuit obtulit to do the Work tho' he did not say and the other refused yet it was a sufficeint Averment after a Verdict The Case of Vivian and Shipping 3 Cro. 384. in an Assumpsit upon a Promise to perform an Award the Plaintiff said licet He had performed all on his part c. which tho' no good Averment in Form yet held it aided by the Verdict Wherefore tho' they could not agree in the other matter yet Judgment was given for the Plaintiff Ante. King versus Melling IN an Ejectment the Case was thus found in a Special Verdict John Melling was seised in Fee and had Issue Barnard and John and by his Will in Writing devised to Barnard for and during his Natural life and after his decease to such Issue as he should have of the Body of his second Wife his first then being alive and if no such Issue hapned then to John Melling provided that Barnard might make a Joynture to his Wife which she should enjoy for her Life The Devisor dies Barnard suffers a Recovery to the use of himself in Fee and after Covenanted to stand seised to the use of his Wife for her Joynture for Life and died without Issue by any second Wife The Question was Whether the Wife had a good Estate or that J. Melling in Remainder had the Right It was Argued for John Melling First That Barnard Melling had only an Estate for Life by this Devise Indeed if it had been to him and his Issue which he should have by the second Wife that would have been an Entail but here 't is expresly given to him for his Life The Case of Wiat Wield 8 Co. 78. b. is full to this A Devise to a man and his Children is an Estate Tail if he hath none at the time But if the Devise were to a man for his Life and after his Decease to his Children there whether he had Children or no at the time they take by way of Remainder either contingent or vested So Archer's Case 1 Co. 1 Rolls 837. A Devise to his Son for Life the Remainder to the Sons of his Body lawfully begotten the Son takes only an Estate for Life because so expresly limited Then the Recovery destroys this Contingent Remainder and so also the power of appointing a Joynture to his Wife For 't is not a bare Collateral Power but annexed to his Estate and therefore extinguishes in the Conveyance of it But admitting it were still in him yet he did not well execute it which should have been in such manner as it might have taken effect by the Will and not to arise upon a Covenant to stand seised On the other side it was Argued that it was an Estate Tail in Barnard Melling and no Remainder contingent to the Issue For there a Remainder is said to be contingent where the first Estate may fail before 't is ascertained whether the Contingent will happen or no here if it be an Entail Barnard Melling hath it for his Life and the Issue had nothing until after his decease So 't is but an Expressio eorum quae tacite insunt Again The Power remains notwithstanding the Recovery for 't is collateral to the Estate If Executors have Authority to make a Feoffment for the payment of the Testator's Debts if they should first make a Feoffment to another purpose this would not determine their Power but they might afterwards execute it in performance of the Will 1 Co. in Albany's Case Hale It seems very strong upon Weild's Case that Barnard Melling hath but an Estate for Life if it were devised to him and after his decease to his Issue I should think that to be an Estate Tail but here the express Words are for his Life A Devise to one for his Life and after his decease to his Heir that hath been held a Fee for Heir is nomen Collectivum But Archer's Case 1 Co. is a Devise to A. for his Life and after to his Heir and the Heirs of that Heir there because the words of limitation were put to the Heir therefore Heirs was taken to be but designatio personae and Resolved he should take by Purchase Vid. Anderson 110. Construction must be according to the express words of the Will A Devise to Two equally to be divided between them and to the Survivor of them makes a Joyntenancy upon the express import of the last Words Twisden A Devise to one for Life in perpetuity makes but an Estate for Life only 15 H. 7. Hale 'T is considerable also that he adds a Power to make a Joynture which would have been useless if he had intended him in an Estate Tail And this Power is in the nature of an Emolument annexed to his Estate which seems to be destroyed by the Recovery neither hath he well executed his Power for after the Recovery he became seised in Fee so the Covenant to stand seised may work upon that Estate and so shall not be taken in pursuance of his Authority which possibly it might have been if he had but an Estate for Life for without reference to that it would have been ineffectual quando non valet quod ago ut ago valeat quantum valere potest And this is agreeable to the Learning in Sir Edward Clere's Case in the 6 Co. The Court seemed pretty clear in these Points but because it was upon the first Argument they gave leave to the parties to speak to it again if they thought fit Et Adjornatur Post Goffe's Case A Trial at Bar was had upon an Indictment
Vpon which it was Demurred Jones Sollicitor for the Defendant said Tho' the Bail may plead payment because the Condition of the Recognizance is in the Disjunctive viz. for rendring the Body or paying the Money yet the Principal cannot Also it ought to have been pleaded to be paid before a Capias ad satisfaciendum taken out for as it is it may be after the Recognizance forfeited As if the Death of the Principal be pleaded it must be alledged to be before the Capias ad satisfaciendum taken out But the Court held it to be well enough For if that matter be material 't is to come on the other side and ex gratia Curiae the Bail has time to save himself before the Return of the second Scire facias Anonymus IN an Assumpsit the Plaintiff Declared that on the 28th of June Discoursing with the Defendant about the Marriage of his Daughter the Defendant promised him That if he would hasten the Marriage and should have a Son within Twelve Months then next following he would give him an Hundred Pound And sets forth That he did Marry soon after and had a Son within 12 Months after the Marriage Vpon non Assumpsit pleaded and a Verdict for the Plaintiff it was moved in Arrest of Judgment that the Plaintiff had not set forth That he had a Son within the time for then next following shall be referred to the Day of the Discourse and not to the Marriage But the Court were of another Opinion and gave Judgment for the Plaintiff Crawfoot versus Dale IN an Action for Words it was thus There being a Discourse of the Plaintiffs Trade the Defendant said He was a cheating Knave and kept a false Debt-Book with which he cheated the Country After Verdict for the Plaintiff it was moved in Arrest of Judgment that to say a Tradesman was a Cheating Knave tho' there were a Colloquium of his Trade was not Actionable for that might be said because he sold too Dear and so cheated in the Price but to say that He sold bad Commodities is Actionable and to say He kept a False Book will not bear an Action for that may be unwittingly But the Court Resolved that the Words laid together were Actionable for Tradesmens Books are of much regard and sometimes given in Evidence Jennings versus Hunking IN an Action for saying He was Perjured the Declaration was laid in Devonshire The Defendant Iustified for that the Plaintiff made a false Affidavit at Launceston in Cornwal and Issue was taken upon that and tryed at the Assizes in Devonshire and moved that this was a Mis trial But it was Answered That the Statute of 17 Car. 2. cap. 8. helps all Mis-trials so as the Trial be in the County where the Action is brought And a Case was cited in this Court between Crosse and Winton in the 21 Car. 2. where an Action was brought for saying He stole Plate from Wadham Colledge in Oxford The Defendant Iustified that he did Steal there Vpon which there was Issue joyned and tryed in London where the Action was brought and it was held good And this Term a Case was moved in the Common Bench in a Writ of Covenant against Wise The Defendant pleaded a Feoffment of Lands in Oxfordshire and he Issue was non feoffavit and afterwards tryed in London where the Action was laid and the Opinion of the Court there was that the late Statute would help it The Court said It was within the words of the Act but as they conceived not within the meaning for they intended only so the Trial was in the County where the Issue did arise But in regard of the Resolutions before they would not stay Judgment Anonymus IN an Action upon the Case the Plaintiff sets forth that the Defendant malitiose crimen Feloniae ei imposuit and not mentioned any Felony in particular and yet held to be well enough Anonymus Trespass with a Continuando which was alledged for some time after the Term wherein the Action was brought and Damages given to 10 l It was moved in Arrest of Judgment that for part of thâ— Trespass it appears by the Plaintiffs own shewing that the Action was brought before the Plaintiff had Cause of Action And it was said That if the Bill were Filed at the End of the Term and the Trespass reached to some time within the Term the Filing should not relate so as to make it Insufficient But here it was carried to the 3d of July which the Court must see is out of the Term because they take Cognizance of the beginning and end of every Term. Anonymus IF an Audita Querela he brought before the Execution of a Judgment quia timet and it goes for the Defendant he shall execute his Principal Judgment But if it he brought after the party is in Execution and he be bailed out then the Judgment being once Executed there can be no after resort to that but the Defendant shall proceed upon the Record of the Audita Querela Fawkener versus Annis THe Priviledge of the Chancery was pleaded by way of Prescription and upon Demurrer it was held naught First Because it was not Concluded hoc paratus est verificare And Secondly No place alledged for they are Matters of Fact and Triable Anonymus IN an Action upon the Case the Plaintiff Declared That the Defendant the Tenants and Occupiers of such a parcel of Land adjoyning to the Plaintiffs have time out of Mind maintained such a Fence and that from the 23th of April to the 25th of May postea the Fence lay open and that una Equa of the Plaintiffs went through the Gap and fell into a Ditch the 28th of May submersa fuit Vpon Not Guilty pleaded and found for the Plaintiff Holt moved in Arrest of Judgment First That the Prescription is laid in Occupiers and not shewn their Estate and that hath been adjudged naught in the 1 Cro. 445. and the 2 Cro. 665. Curia 'T is true there have been Opinions both ways but 't is good thus laid for the Plaintiff is a Stranger and presumed ignorant of the Estate But otherwise it is if the Defendant had prescribed Secondly It was Objected That the Cause of Action is laid after the 25th of May and for ought appears the Fence might be good at that time tho' 't is said to be open till the 25th of May postea Sed non allocatur For 1. 'T is after a Verdict 2. 'T is said expresly that the Beast was lost in defectu fensuratum and so cannot be intended but that it was down at the time Anonymus AN Indictment of Forcible Entry upon the 8 H. 6 being removed hither by Certiorari a Restitution was prayed But to stop that it was said that the Indictment was traversed and a Plea that the party had had three years quiet possession according to the 31st of Eliz. and tho' Dyer 122 is That 't is in the
for payment of so much for being Buried in the Body of the Church and a Prohibition was prayed suggesting that there was no such Custom The Court held such a Custom must be good because the Parish is to be at the charge to make up the Church Floor but if the Custom be denied it must be tried at Law And therefore inclined that a Prohibition was to go tho' it was objected that this duty belongs properly to the Ecclesiastical Court and no remedy for it elsewhere for so is the Case of a modus decimandi which may be demanded in the Spiritual Court but if the Custom be denied there shall be a Prohibition and so the case of a Mortuary since the Statute of H. 8. And it afterwards being moved again Hale Chief Justice being present the Prohibition was granted Which Hale said was sometimes granted pro defectu Jurisdictionis and sometimes pro defectu Triationis as in this case and others where the ground of the Suit is Prescription for in their Law they have sometimes allowed Prescriptions of 20 years sometimes of 40 years but we admit none but what are de temps dont c. St. John versus Moody IN an Action upon the Case the Plaintiff declared That he was possessed of a Wood and that he had a way leading from such a place to the said Wood and that the Defendant had obstructed it Vpon not Not guilty it was found for the Plaintiff and moved in Arrest of Judgment that the Plaintiff had not set forth his Title to the way whether by Prescription or otherwise and this ought to be that the Defendant might be ascertained what to make defence unto Also 't is proper to the nature of an Action upon the Case to set forth the Case at large Curia contra The Action here is grounded upon the Possession indeed if Trespass were brought by the owner of the Soil in a justification for a way 't is necessary to express by what right 't is claimed but this for ought appears may be against a Stranger In Assize for a Rent against the Terre-tenant he may demand Judgment whether he ought to answer before Title made otherwise of an Assize brought against the Pernor of a Mans Rent Where 't is pleaded that the Party ought to keep the Fence it sufficeth to say occupatores reparare consueverunt for in Truth the greatest part of the Enclosures in England have been within time of Memory The Writ of Curia claudenda is only quod debet solet 't is true before 7 Jacobi the usage has been in Actions of this nature to prescribe but not since Vid. 2 Cro. 43 123 3 Cro. 499 575. Sands and Trefuses Case and 325 Symonds and Seabourn Whereupon Iudgment was given for Plaintiff Note This Case was afterwards affirmed upon a Writ of Error in the Exchequer Chamber Drue versus Baily THe Case was an Executor had a Term and let part of it reserving a Rent and made his Executor and died The question was Whether the Executor should have the Rent or the Administrator de bonis non And it was held that the Executor should have it Bell versus Thatcher IN Error upon a Judgment given in the Court of Common Pleas where the Plaintiff in an Action upon the Case declared That he had been retained by the under Postmaster to carry about post Letters of which he made a profit and had behaved himself honestly in that Employment And that the Defendant to defame him said He had broken up Letters and taken out Bills of Exchange which brought him to such discredit that he lost the said Employment And Iudgment was given for the Plaintiff and Error assigned upon the matter for that the words do not import but that he might break open the Letters by the direction of those to whom they were directed neither do they express that they were Post Letters and the innuendo will not help it unless there had been such a signification in the words Neither is it such an Employment that an Action should lie for Scandalizing Also the Plaintiff does not declare that he was retained for above a year and seems to be little more then a Common Porter And for these reasons by the Opinion of the Court the Iudgment was reversed and Hale principally from the quality of the Employment for he said a Man should not speak disparagingly of a mans Cook or Groom but an Action would be brought if such Actions as these should be maintained Anonymus IN an Action for words the case was that the Defendant speaking to the Plaintiff said thus I know my self and I know you I never buggered a Mare And the Opinion of the Court was that the words were Actionable or else there might be sly ways to defame any Man and evade an Action Hodgkins versus Robson and Thornborow IN Debt for Rent The Defendants pleaded in Bar to the Action that the Plaintiff had entred into a Back-yard part of the Land demised by Force and Arms c. The Plaintiff replied that he ought not to be foreclosed of his Action for that the Defendant had let that Back-yard to J.S. for a lesser Term reserving no Rent and that J. S. entred and after assigned unto the Plaintiff c. which is the same Entry in the Bar. The Defendants rejoyns that J. S. did not enter to which it was demurred And after it was several times spoken to at the Bar Iudgment was given this Term by the whole Court for the Plaintiff viz. Hale Chief Justice Twisden Rainsford and Wild. And First They all held that as the pleading was in this case there could be no Apportionment of the Rent for when there is to be an Apportionment either the Jury shall do it upon nil debet pleaded or the Defendant may in his pleading set forth the value of the Land and to what the Apportionment shall be Hale said if the Lessee redemise part to the Lessor reserving a Rent there shall be no Apportionment for the parties by the Reservation have ascertained what Rent shall be allowed for that part but where there is no Rent reserved upon the Redemise there shall be an Apportionment but if part be assigned by the Lessee to a Stranger who Assigns it to the Lessor and the Lessee had reserved no Rent in that case there shall be no Apportionment for the Lessor comes under the benefit of the Strangers Contract And Hale resembled it to the Case of Lord and Tenant by an entire Service if such Tenant aliens part the Service is multiplied and after it be conveyed to the Lord the entire Service still remains upon the Tenant that holds the residue A Rent upon a Lease is not within the Statute of Quia emptores terrarum yet in many Cases there shall be an apportionment at Common Law If the Lessor enters into part by Wrong this shall suspend the whole Rent for in such case he shall not so apportion his
is very clear For tho' in M. Portington's Case in 10 Co. 't is said that the word Condition shall not in a Will be taken as a Limitation yet the Current of the Authorities since are otherwise But here the Court held the Condition void for a man cannot be restrained from an Attempt to Alien For non constat what shall be judged an Attempt and how can it be tryed And when the express words are so there shall not be made another sort of Condition than the Will imports And so the Judgment was affirmed Osborn versus Beversham DEbt for Rent incurred at two Half years As to one of them the Defendant pleaded non debet And as to the other Actio non because he says He was ready to pay it at the Day and Place and has been ever since profert in Cur ' the Rent ideo petit Judicium de damnis To which the Plaintiff Demurred For that he did not say quod obtulit for where the Time and Place of Payment is certain Semper paratus is no Plea without an Obtulit For the Defendant it was said That the Plaintiff ought to reply to a Demand 1 Inst 34. 'T is a good Plea for the Heir in Dower to save his Damages to say That he was always ready Rastal's Entries 159. Semper paratus is pleaded without an Obtulit So 1 Rolls 573. no mention made of a Tender But then another Fault was found that it was pleaded in Bar whereas it ought to have been only in Bar of Damages and not to the Action and this was agreed to be fatal But the Court held the Plea to be naught for the other Cause also Anonymus IN an Ejectment upon a Special Verdict the Case was A man Devised his Land to J. S. after the death of his Wife And after Argument the whole Court were of Opinion that J.S. not being Heir to the Devisor there should go no implied Estate to the Wife for an Heir shall not be defeated but by a necessary Implication Anonymus AN Action for Words for that the Defendant said of the Plaintiff He would have given Dean Money to have Robbed Golding's House and he did Rob the House After Verdict it was moved in Arrest of Judgment that the first part of the words import only an Inclination and not that he did give any Money And the words He did Rob the House shall be referred to Dean as the last antecedent and not the Plaintiff But the Court were of Opinion for the Plaintiff as was Adjudged where the words were He lay in wait to Rob. Vid. Cockain's Case in the 1 Cro. and in the 4 Co. And the Court said the Words might be construed That the Plaintiff offered Dean Money and he refusing it that the Plaintiff robbed the House himself Smith versus Tracy THe Case being moved again the Opinion of the whole Court was That the Half-Blood should come in for Distribution upon the new Act For as to the granting of Administration the being of Guardian c. the Half-Blood may be taken nearer of Kin than a more remote Kinsman of the Whole Blood Mo. 635 Ro. Rep. 114. Ante. J 's Case J. Brings his Habeas Corpus The Return was that he was Committed by J. S. J. N. T. K. to whom and others a Commission of Bankrupt was awarded for refusing to answer a Question put to him concerning the Bankrupt's Estate c. and so Commissus fuit in custodia by a Warrant to the Officer Virtute Commissionis praedictae haec est causa captionis seu detentionis c. The Counsel for the Prisoner took three Exceptions to the Return First For that there did not appear a sufficient Authority For the Commission is said to be granted to them and others and then they could not act without the rest for the Return does not express any Quorum c. in the Commission Secondly Instead of Commissus in custodia it ought to be Captus for that is the usual Form For this is as if the Commitment were by the Officer that makes the Return Thirdly Haec est causa captionis seu detentionis is uncertain for it ought to be detentionis And upon the first and last Exception the Prisoner was Discharged by the Court but at the same time was told by the Court That he must answer directly to such Questions as were put to him in order to the discovery of the Bankrupts Estate or else he was liable to be Committed Termino Sancti Hillarij Anno 29 30 Car. II. In Banco Regis Harrington's Case AN Information was preferred against him for that he maliciously and traiterously intending to stir up Sedition and to create a Disturbance between the King and his People upon Discourse of the late Rebellion and those Persons which were Executed at Charing-Cross for the Murder of the late King in praesentia audita quamplurium utteravit propalavit haec verba pernitiosa sequentia viz. Gubernatio nostra consistebat de tribus statibus si eveniret Rebellio in Regno nisi foret Rebellio contra omnes Status non est Rebellio Vpon Not Guilty pleaded he was found Guilty of speaking the precedent Words and Not guilty as to other Words contained in the Information It was moved in Arrest of Judment that Gubernatio signified the Exercise and Administration of the Government and not the State of it which Regimen doth Again That it was Consistebat and so might relate to the Britons or Saxons Time or to the late mutations of the Form of Government amongst us and that to put the words in Latin without an Anglicè was not to be allowed for the Translation might either aggravate or mitigate the Sense And that such a President might be prejudicial as well to the King as the Defendant But those Exceptions finding little weight with the Court his Counsel proceeded to justifie or at least to extenuate the Words alledging That the Relation was so great between the King and People that to raise a Rebellion against the King must also affect the other States and this whether the King be taken as some would have it as one of the Three Estates or as others that the Lords Spiritual and Temporal make two of the Estates and the Commons the third and the King as Chief and Head of all as is the Statute of 1 Eliz. cap. 3. where the Lords and Commons call themselves the Queens Obedient Subjects Representing the Three Estates of the Realm of England and so is the 4 Inst 1. But the Court supposing that the Words did tend to set on Foot that Position upon which the War Levied in 1641. by the Two Houses against the King was grounded were much displeased that the Counsel would pretend to defend them or put any tolerable Sense upon them It was also insisted upon by the King's Counsel and agreed by the Court that the Ancient Presidents and many latter also were to express the
the Suit against one alone ought not to be as in an Assize for a Rent-charge all the Ter-Tenants are to be named and here the party has an Election to Sue a Writ of Annuity and if so be must have named all that had been chargeable Curia 'T is true in our Law it were a good Plea in Abatement but perhaps their Law and Course is otherwise And here they have Jurisdiction and may proceed according to their own Rules or if not you may have an Appeal Whereupon a Prohibition was denied Anonymus IN an Habeas Corpus and Certiorari for the Body of J. S. who had been Imprisoned for not paying of a Fine of 20 l set at the Quarter Sessions The Return was that he being Constable and demanded by the Court to Present an High-way which was sworn before him by Two Witnesses to be out of Repair said in Contempt of the Court That he would not Present it For which and certain other contemptuous words the Fine was set The Counsel for the Prisoner moved that it might be Filed Which was done The Court were of Opinion that the Fine was not well set for Constables are to Present upon their own Knowledge and the Two Witnesses should have been carried to the Grand Jury for the Constable was not obliged to Present upon their Testimony This Court is to judge of their Fines whether without Cause or to mitigate them when excessively imposed and for the Contemptuous Words the Return is ill because not expressed what On the other side it was prayed that the Return might be amended for he had spoken Opprobious Words but that could not be admitted after the Filing And so the party was discharged Anonymus IT was moved to quash an Order of Sessions for the Keeping of a Bastard Child First That it doth not appear that the Child was born within the Parish Secondly 'T is to allow so much Weekly until the Child is Eight years of Age whereas the Statute gives power to make a Weekly allowance while the Child shall be chargeable Thirdly The Order was at Eight years old to pay 5 l for the Binding of it out But the Court would not quash it for they said it was implied by saying it would be chargeable to the Parish that it was born there and 't was apparent it would continue Chargeable for so long as they appointed the Allowance and they might Order 5 l to be paid in the end Sed Quaere For a Sum in gross ought not to be set but a Weekly allowance And the Court said they must shew that respect to Justices of the Peace who served the Country at their own charge as not too nicely to examine their Orders Anonymus ERror upon a Judgment by Nihil dicit given in the Common Pleas where the Action was for Words which in the Declaration were laid thus That the Defendant said Quidam J. S. which was the Plaintiffs Name innuendo the Plaintiff was c. The Error assigned was that there was no Averment that these Words were spoke of the Plaintiff for there might be more of the name But Holt for the Defendant said the Innuendo would help that fault and he cited the Case of Rebotham and Venlecke in the 3 Cro. 378. where the Plaintiff Declared that he had made an Oath before a Judge upon certain Articles exhibited for the Good Behaviour and the Defendant to Scandalize him said He made a false Oath Innuendo the said Oath before the Judge where it was held that the Innuendo was sufficient to ascertain what Oath was meant But the Court Reversed the Judgment in this Case and said that not saying in the Declaration that the Words were spoken of the Plaintiff it was not sufficient to bring that in by an Innuendo which ought to have been Averred and it is the worse because 't is said quidam J.S. which imports another person than the Plaintiff Anonymus ERror to Reverse a Judgment given in the Kings-Bench in Ireland in a Prohibition where the Issue was Whether he had Prosecuted in the Court Christian after the Prohibition and it was found for the Plaintiff and Damages assessed to 100 l and 6 d pro misis custagiis And now the Error was assigned in the Judgment given which was That the Plaintiff should recover damna praedicta per Juratores assess ad 100 l nec non pro misis custagiis de incremento per Cur ' adjudicat ' 20 l omitting the 6 d Costs given by the Jury On the other side it was said That damna praedicta in the Judgment included all and the saying 100 l was but a Miscomputation Et Adjornatur Postea Hill 33 34 Car. 2. How versus Whitfield A Fine of certain Lands to the use of J. S. for Life and after to his Executors and Assigns for 80 years with Power to the Lessee and his Assigns to lett Leases for 21 years reserving the ancient Rent After several mean Assignments the Assignee of an Executor of an Assignee made a Lease for 21 years which in the Special Verdict was found to be made of the said Lands inter alia reserving proinde six shillings per annum and found that six shillings was the ancient yearly Rent for the Land The Court seemed to be of opinion that an Assignee after so many Removes might execute this Power for it was coupled with an Interest and annexed to the Estate tho' to be construed strictly but in regard the Lease was made of the Land inter alia reserving proinde c. in case the Reservation should be taken to be for the whole Land then it was not the ancient Rent reserved for this and upon that they doubted Et Adjornatur Postea Anonymus AN Indictment was quashed for want of Addition For the Court said no Process ought to go out thereupon because the party cannot be Outlawed Anonymus IN an Habeas Corpus the Return was that the party was taken upon an Excom ' Cap ' It was moved that the party might be discharged because upon Search it appeared that the Writ had not been Enrolled in this Court for so it ought to be by the Statute of the 5th of the Queen tho' the Writ issues out of Chancery The Court doubted whether they could Discharge him upon a Motion or that he should be driven to plead this Matter And it was said the Course had been both ways Vid. Parker's Case 3 Cro. 553. But the party was afterwards Discharged ut opinor Herne versus Brown A Prohibition was prayed to a Suit in the Ecclesiastical Court The Libel sets out That a Tax had been made for the Repairs of a Church where the Defendant inhabited and was to make him pay his proportion To which they required his Answer viz. Whether he had paid c. The Suggestion was that the party had tendred his Answer but the Court had refused it because it was not upon Oath and that the Ecclesiastical Court
Tail was executed by the first Conveyance And in the Case at Bar until the Release of B. the Fee was not executed in B. for the preservation of the Joynture and so the Plight and Condition of the Estate altered by matter subsequent and by consequence the Contingent Remainder destroyed The Court doubted whether there were such alteration of the Estate as to destroy the Remainder for they said to some purposes the Fee was executed before the Release Vid. 1 Inst 184. a. for if the Joynt-tenants had joyned in a Lease for years an Action of Wast would he against the Lessee Et Adjornatur Anonymus A Person who was committed to the Tower for Conspiring the death of the King was brought up by Habeas Corpus and prayed to have Bail taken unless an Indictment were found against her this Term according to the new Act of 31 Car. 2. for Habeas Corpus's The Court said that they which would have the benefit of that Act must pray it before the first week of the Term expires but in regard it appeared that she had prayed it before by her Counsel and her Habeas Corpus was taken out in time the Court said the benefit of the Act should be saved to her for the prayer is not necessary to be made in person But Mr. C. G. was refused the advantage he having omitted to make the prayer during the first week either in Person or by Counsel Sir Robert Peytons's Case HE was brought up by Habeas Corpus from the Tower his Counsel pressed much to have the Return Filed supposing that he would be then a Prisoner to the Court and committed to the Marshalsey but the Court ordered the Return to be Filed and notwithstanding remanded him to the Tower as they said they might do The King versus Plume ANte Hill 29 30 Car. 2. The Case was spoken to again upon the Demurrer to the Indictment for using of the Trade of a Fruiterer contra 5 Eliz. not having been bound an Apprentice Scroggs Chief Justice and Dolben inclined to the Opinion that it was a Mystery within the Statute there being great Art in chusing the times to gather and preserve their Fruit. And that the Cause deserved the more Consideration for that the Fruiterers were an ancient Corporation in London viz. From the time of E. 4. also a Barber Upholster and lately a Coachmaker Ruled to be within the Act. Jones and Pemberton seemed to be of another Opinion for it would be very inconvenient to make every one that sells Fruit by the penny within the Act and majus minus would make no odds surely since the 5 of Eliz. there would have been some Prosecution by the Company of Fruiterers in this case if it would have lain Brewers and Bakers require Skill and yet not within the Act. But the Court took time to deliver their positive Opinions Et Adjornatur Reve versus Cropley AN Indebitat ' Assumpsit was brought for 20 l as Executor to William Burroughs for so much of the said Williams Money had and received by the Defendant in his Life time whereupon the Plaintiff had Iudgment by Nihil Dicit and upon a Writ of Inquiry the Plaintiff not being provided to prove the Debt supposing it to be confessed by the Judgment the Jury found but two pence Damages Ventris moved to set aside this Writ of Enquiry for that the Plaintiff was not obliged in this Action to prove the Debt at the executing of the Writ of Enquiry no more than if he had brought an Action of Debt 2 Cro. 220. In Trespass for taking of Goods the Property is not to be proved upon the Writ of Enquiry after Iudgment Sur Nihil Dicit for said the Court if he should fail thereof it would be in destruction of the first Judgment Vid. Yelv. 152 Curia This being in an Action upon the Case which lies in Damages the Debt ought to have been proved and so let it stand Note If a Verdict be for 30 l and the Iudgment is quod recuperet damna praedicta ad 32 l This surplus will do no hurt because 't is damna praedicta Jones 171. Cooke versus Fountain IN an Ejectment upon a Trial at the Bar the Title of the Lessor of the Plaintiff was upon the Grant of a Rent with power to enter for Non payment The Executor of the Grantor was produced as a Witness for the Defendant And it was objected against him that in the Grant of the Rent the Grantor covenanted for himself and his Heirs to pay it and that the Executor being obliged was no competent Witness Against which it was much insisted upon on the other side that this Covenant annexed to a real Estate would not bind the Executor but only the Heir But the whole Court were against it The Counsel for the Defendant mentioned a Bill of Exceptions and the Court doubted whether it would lie in the Kings Bench so they waved it and shewed that the Executor had fully Administred the Inventory But they gave a further charge on the Plaintiffs side and so that Witness was set aside Termino Sanctae Trinitatis Anno 32 Car. II. In Banco Regis Anonymus IN an Action upon the Case The Plaintiff declared that he kept a Stage-Coach and got his Livelyhood by carrying of Passengers And that the Defendant spoke such Scandalous words of his Wife that so reflected upon him and rendred him so ridiculous that no body would Ride in his Coach and he thereby lost his Customers After Verdict for the Plaintiff it was moved to stay Iudgment that here was no cause of Action But on the other side a Case was cited of one Bodingly 14 Car. 2. C. B. where the Plaintiff declared That he was an Innkeeper and that the Defendant had presented his Wife at a Leet for a Scold and that such and such Guests in particular had absented from his House upon it and after Verdict he had Judgment But the Court here said that the Cases differed for that quality of the Wives might make the House troublesome to the Guests but a Stage Coachman could receive no probable prejudice in his Trade by defaming of his Wife or at the least the Plaintiff should have declared what Customers he had lost in particular and therefore they ordered quod querens Nils capiat per Biliam Anger versus Brewer IN an Attachment upon a Prohibition the Plaintiff declared That he proceeded in the Court Christian after the Prohibition delivered After Judgment by Nihil dicit and 100 l Damages given to the Plaintiff it was moved to stay Judgment that there was no place laid in the Declaration where the Defendant prosecuted since the Prohibition delivered and so if Issue had been taken upon Non prosecut ' fuit post deliberat ' brevis whence should the Venue have come But it being made appear to the Court that in all the Presidents of these kind of Declarations there is no place found mentioned
given pro Quer. Termino Paschae Anno 34 Car. II. In Banco Regis Clayton versus Gillam IN Trespass for breaking and entering of his Close and Feeding c. and laying thereon certain pieces of Timber c. Et continuando Transgressionem praed ' After Verdict for the Plaintiff it was moved in Arrest of Judgment that one of the Trespasses viz. The laying of Timber could not be with a Continuando But it was resolved by the Court that continuando transgressionem praed ' shall be referred only to the Trespasses which may properly be said with a continuando But if the continuando had been expresly laid for that Trespass all would have been naught as it was resolved in a Case in this Court between Letchford and Elliot 16 Car. 2. The Earl of Shaftsbury versus Cradock IN an Action of Scandalum Magnatum for saying That the Earl was a Traytor c. The Action being laid in London where the words were supposed to be spoken It was moved in behalf of the Defendant that the Venue might be changed into some other Country and Affidavits were read that the Plaintiff had a great interest in the City and an intimacy with the present Sheriffs so that the Defendant could not expect an indifferent Tryal there and thereupon the Court did think fit to take the Cause out of London and gave the Earl the Election of any other County but he refused to Trie it elsewhere and would rather let the Action fall Curtis versus Inman IN Debt for the Penalty forfeited by the Statute of 5 Eliz. for using the Trade of a Grocer having not been Bound an Apprentice It was moved that the Action lies not in this Court because 21 Jac. cap. 4. Enacts That Actions popular shall be brought before Justices of Assize of the Peace c. But a Case was cited which was adjudged in this Court Hill 20 21 Car. 2. between Barns and Hughes which see before that such Action would lie But the Court notwithstanding in this Case said they would hear Arguments The Earl of Shaftsbury versus Graham al. IN an Action upon the Case in the nature of a Conspiracy the Declaration was That the Defendants did conspire to indict the Plaintiff of High Treason and for that purpose did Sollicit one Wilkinson and endeavoured to Suborn him to give false Testimony against the said Earl and an Indictment was offered at the Sessions at the Old Baily in London by the Defendant in pursuance of the said Conspiracy which Indictment the Grand Jury there found Ignoramus c. It was moved in behalf of the Defendants that whereas the Conspiracy was in the Declaration alledged to be in London that the Court would change the Venue and an Affidavit of the Defendants was produced That the Conspiracy alledged in the Declaration if there were any such was in Surry and not in London Note Wilkinson at the time of the supposed Conspiracy was a Prisoner in the Kings Bench and Affidavits were produced likewise to shew that the Plaintiff had such Interest with the present Sheriffs of London that an indifferent Jury was not like to be returned and that several Persons named to be material Witnesses for the Defendant durst not come to the Tryal if it were in London for fear of their Lives in regard they had been so affronted and abused when they were produced to prove the before mentied Indictment at the Old Baily and several other matters were alledged But it was insisted upon by the Counsel for the Earl That First The Venue uses not to be changed in Case of a Peer who is one of the Comites Regis and shall not be forced to Travel into another County to trie his Case as a Common Person Secondly That the present Case was local viz The preferring the Indictment at the Old Baily and where the Cause of Action ariseth in two Counties the Plaintiff hath his Election to bring it in either 7 Co. Bulwers Case But the Court declared that they were satisfied that no indifferent Tryal could be had in London they remembered they were affronted themselves when they were at the Old Baily upon the before mentioned Indictment And they resolved that they had a power to alter the Venue in the case of a Peer as it had been done about six years since in a Scandalum Magnatum brought by the Earl of Salisbury in this Court. And also they said that the Cause of Action here was Transitory viz. The conspiring and that the preferring of the Indictment was but in aggravation of Damages and the Action would lie altho' none had been offered or if preferred by other Persons than the Conspirators 'T is true when the matter ariseth in several plates the Plaintiff has Election but if there be like to be no indifferent Tryal in the place where it is laid 't is usual with this Court to change the Venue But the Court said they would not confine the Plaintiff to Surry if he could shew them cause that that was not an indifferent County Vid. 42 Ed. 3. 14. Termino Sancti Michaelis Anno 34 Car. II. In Banco Regis Denison versus Ralphson IN an Action upon the Case the Plaintiff declared That the Defendant in consideration of a Sum of Money paid by the Plaintiff did promise to deliver to him ten Pots of good and Merchandizable Pot Ashes and that not regarding his Promise and to defraud him he delivered him ten Pots of Ashes not Merchandizable but mixed with Dirt c. And declared also that pro quadam pecuniae summa c. the Defendant vendidit to the Plaintiff ten other Pots of Ashes Warrantizando c. that they were good and Merchandizable and that he delivered them bad and not Merchandizable knowing them to be naught and to this Declaration the Defendant Demurred And it was argued by Sanders That here were Causes of Action of several Natures put into one Declaration and they required several Pleas viz. Non Assumpsit and Not guilty and therefore ought not to be joyned Thompson for the Plaintiff cited a Case between Matthews and Hoskin An Action against a Common Carrier and declared upon the Custom of the Realm and that he had not delivered the Goods and declared also in a Trover and Conversion upon the same matter and after Verdict upon motion in Arrest of Judgment the Action was adjudged well brought 16 and 17 Car. 2. Hill in this Court. So an Action against one for twenty shillings upon the Hire of an Horse and declared further that he abused him and held good Curia Those Cases were after Verdict Causes upon Contract which are in the Right and Causes upon a Tort cannot be joyned for they do not only require several Pleas but there is several Process the one Summons Attachment c. the other Attachment c. These upon the Contract lie for and against Executors the other not but these seem to be both upon the Contract viz. That
Heir in England or to have one My third and last Reason is indeed more general tho' not so conclusive as the two former were upon the particular Reason of the Case tho' not altogether to be neglected viz. The Law of England which is the only ground and must be the only measure of the incapacity of an Alien and of those consequential results that arise from it hath been always very gentle in the construction of the disability and rather contracting than extending it so severely For Instance The Statute de natis ultra Mare 25 E. 3. declares that the Issue born beyond Sea of an English Man upon an English Woman shall be a Denizen yet the construction hath been tho' an English Merchant marries a Foreigner and hath Issue by her beyond the Sea that Issue is a natural born Subject In 16 Cro. Car. in the Dutchy Bacons Case per omnes Justic ' Angl ' And accordingly it hath been more than once Resolved in my Remembrance Pround's Case of Rent The Case of the Postnati commonly called Calvin's Case the Report is grounded upon this gentle Interpretation of the Law tho' there were very witty Reasons urged to the contrary and surely if ever there were reason for a gentle Construction even in the Case in question it concerns us to be guided by such an Interpretation since the Vnion of the two Kingdoms by which many perthance very Considerable and Noble Families of a Scottish Extract may be concerned in the consequence of this Question both in England and Ireland that enjoy their Inheritances in peace I spare to mention particulars So far therefore as the parallel Cases of Attainder warrant this extent of this Ability I shall not dispute but further than that I dare not extend Now as touching the Authorities that favour my Opinion I shall not mention them because they have been fully Repeated and the later Authorities in this very Case are not in my Iudgment to be neglected Touching the Case of Godfrey and Dixon it is true it doth differ from the Case in question and in that the Father was made a Denizen and then had Issue a younger Son who inherited the elder Son an Alien born but Naturalized after the death of his Father yet there is to be observed in that Case either the Naturalization of the elder Son relates to his Birth or relates only to the Time of his Naturalization whether it did relate or not depends upon the words of the Act of Naturalization which I have not seen If it did relate the Cause in effect will be no more but an Alien hath Issue a Natural born Son for so he is as I have Argued by his Naturalization and then is made a Denizen and hath Issue and dies the elder Son purchaseth Lands and dies without Issue the younger Son shall inherit the elder should not have inherited his Father by reason of the Incapacity of the Father But it doth not relate further than the Time of his Naturalization which was after the time of the Death of his Father and consequently he could not divest the Heirship of his younger Brother yet if he purchaseth and dies without Issue his younger Brother shall inherit him tho' there was never Inheritable Blood between the elder Son and his Father so much as in fiction or relation Vpon the whole Case I conclude First That there be two Brochers Natural born in England the Sons of an Alien the one shall inherit the other Secondly That the Naturalization puts them in the same Condition as if born here tho' it does not more Thirdly That John the Son of George stands in the same Condition of inheriting his Vncle the Earl as George should have done had he survived the Earl Fourthly But if the Disability of Robert the Father had disabled the Brothers to have inherited one the other the Naturalization of the Earl or George had not removed that Disability Fifthly But no such Disability of the Father doth disable the Brother George to inherit the Earl it neither doth Consequentially disable John the Son of George to inherit the Earl Consequently as to the Point referred to our Iudgment John the Son of George is Inheritable to the Land of John his Vncle. The End of the First Volume A TABLE OF THE Principal Points Argued and Resolved in the First PART OF THESE REPORTS A. Abatement See Pleadings IN the Ecclesiastical Court a Suit does not abate by the Death of either Party Pag. 134 A Baronet is Sued by the Addition of Knight and Baronet the Action shall abate 154 In all Actions where one Plaintiff of several Dyes the Writ shall abate save in an Action brought by an Executor 235 Acceptance Where Acceptance of Rent from the Assignee shall discharge the Lessee 99 Action See Bail Whether an Action of Debt qui tam upon the Stat. 5 El. c. 4. lies in B. R. 8 Action brought de uxore abducta and concludes contra forman Statuti where there is no Statute in the case yet good 104 Action for a Nusance in stopping of the Lights of his House p. 139 237 248 Action upon the Stat. 13 Car. 2. by one Bookseller against another for Printing his Coppy p. 253 Where the Matter consists of two parts in several Counties the Plaintiff may bring his Action in which he pleases p. 344 Where several Causes may be joyned in one Action and where not 365 366 Action upon the Case See Jurisdiction Way In the Nature of Conspiracy a-against three for Arresting without Cause and only one found Guilty 12 Such an Action lies against one p. 19 Lies for a Justice of Peace against one who Indicts him for Matters in the Execution of his Office p. 23 25 For taking his Wife from him brought against the Womans Father p. 37 Lies not against a Justice of Peace for causing one to be Indicted who was after accquitted 47 Where it lies for Suing one in the Ecclesiastical Court and where not 86 For erecting a Market 7 miles off 98 Upon the Custom of Merchants for a Bill of Exchange accepted 152 For not Grinding at his Mill 167 Where it lies against a Master of a Ship for Goods lost out of the same 138 190 191 Against the Mayor of L. for not Granting a Poll upon a doubtful Election 206 For not repairing a Fence 264 Against a Taylor for Spoiling his Coat in making 268 For Riding over the Plaintiff with an unruly Horse 295 Where Action lies for Defaming the Wife whereby the Husband loses his Customers 348 Action upon the Case For Slander You are a Forger of Bonds a Publisher of Forgery and Sue upon forged Bonds These last Words not Actionable 3 She was with Child by J. S. whereof she miscarried 4 Thou hast received stoln Goods and knew they were stolen J. S. Stole them and thou wert Partner with her 18 Of a Midwife She is an Ignorant Woman and of small Practice and very unfortunate in her Way there
at the end of the said term and so the said Defendants broke the Covenants ad damnum of the Plaintiff 300 l The Defendant pleaded that the said Richard Cale in his life-time did demolish the three Houses demised and upon the ground whereon they stood did erect three new Houses according to the agreement which during the term were kept well repaired and at the end of the term left in good repair and so yielded up according to the Covenant aforesaid de hoc ponit c. And as to the not repairing the Pavements traverseth that also and the like as to repairing of Tiles and Walls The Plaintiff as to the not repairing of one House in the Declaration mentioned and delivering it up well repaired demurs to the Defendants Plea which Demurrer came to be argued this Term and the sole question was upon this Covenant whether the Defendant being obliged only to build three Houses and having built one more whether the Covenant did not bind him to repair and deliver up that House well repaired as well as those which were agreed to be built And the Court were of Opinion that the Covenant did extend to the other House as well as to the three which were agreed to be built For in the last Covenant which is to deliver up well repaired 't is dicta premissa ac Domos Edificia superinde fore erect which is general and 't is the rather so to be taken because in the first Covenant for keeping in repair during the term 't is the Houses agreed to be built which words agreed to be built are left out in the last Covenant which the Court took to be a distinct Covenant Rokeby doubted it seeming to him to be all as one Covenant and so all the subsequent matter concerning leaving the Houses well repaired should be restrained and understood of those agreed to be built But Iudgment was given for the Plaintiff upon the reasons aforesaid It was also objected on the part of the Defendant that Dowse the Plaintiff was not an Assignee in this Case to bring Covenant for that the term in the reversion was devised to him for Life only and if he died within the Term then to his first Son c. To this it was answered that the Devise of the term to him passed the whole Estate and the remainder to the Son was but a possibility and an executory Devise Welbie versus Phillips IN Debt for Rent the Plaintiff declared upon a Demise made the 25th of March Anno nuper Regis Jac. 4. of one Messuage to hold from thenceforth quamdiu ambabus partibus placeret yielding 10 l Rent quarterly and avers that the Defendant entered by virtue of the said Demise and continued possessed of the Premisses till Christmas then next following and for 50 s a quarters Rent ending at the said Christmas Day he brings his Action and so lays two several other Demises of two other Houses to begin at the same time under the same Rent and demands a quarters Rent upon each at Christmas aforesaid in all 7 l 10 s which the Defendant did not pay which he lays ad damnum 5 l The Defendant demurred to this Declaration for that he sues for a quarters Rent upon each Demise ending at Christmas whereas there were two quarters incurred before which he doth not shew were paid and so sues for less than upon his own shewing appeareth to be due and the Case of Baily and Offord 3 Cro. was cited where upon a Demise rendring 31 s per annum at our Lady Day and Michaelmas the Plaintiff declared for 15 s and 6 d due for a years rent ending at our Lady Day and held naught because he demands but 15 s and 6 d and doth not shew that the rest of the years Rent was satisfied and the Case of Clothworthy in 3 Cro. where in a Writ of annuity the Plaintiff demanded the Arrears incurred at Michaelmas 3 Car. 1. and brought his Writ the 16th of April 4 Car. 1. and said in that Case by Maynard that a man cannot bring an Action for part of a Debt without he shews the rest satisfied Vide 2 Cro. 499. But the Court gave Iudgement for the Plaintiff and said this was not like the Cases cited for in the first Case of Baily the whole years Rent is said to be due and yet demands but half a year And for the Case of Clothworthy there the Iudgment as appears by 3 Cro. and Ro. Abr. 1 part 229. was that he should recover the Arrears before the Writ and pending the Writ whereas he demanded the Arrears but to Michaelmas before the Writ brought and so the Iudgment was for more than was demanded but in this Case every quarters Rent is a several Debt and distinct Actions may be brought for each quarters Rent and so not like Debt brought for part of the Mony upon a Bond or Contract Vide for this 7 H. 6. 26. a. Allen 57. Noy's Rep. 45. Chase versus Sir James Etheridge THe Plaintiff in an Action for Words had taken out an Original and delivered a Declaration which the Defendant upon searching for the Instructions given by the Plaintiff to the Cursitor found differed in divers material things from the Original and thereupon the Defendant pleaded the Statute of Limitations that the words were not spoken within two years The Plaintiff suspecting some miscarriage had been upon which the Defendant as he conceived did rely for the Plaintiff knew the Fact would not serve the Defendant to plead the Statute he found that he had mistaken his Original and upon that petitions the Master of the Rolls for another Original that should warrant the Declaration delivered and had it granted and filed in Court whereupon the Defendant moved the Commissioners of the Great Seal and shewed the whole matter upon which they set aside the Order of the Master of the Rolls and ordered an Original to be taken out according to the first Instructions given to the Cursitor And now the Court was moved here that the last Original might be filed and so it was ordered by the Court for that taken out by the Order of the Master of the Rolls was unduly taken out Whitaker versus Thoroughgood BEnjaminus Thoroughgood Mil. attach fuit per breve Domini Regis Dominae Reginae de privilegio è Cur. hic emanen ad respond Edwardo Whitaker Gen. un Attorn Cur. Domini Dominae Regis Reginae de Banco juxta libertat privileg ejusdem Cur. pro hujusmodi Attorn aliis Ministris de eodem Banco a tempore quo non extat memoria usitat approbat in eadem Cur. de placito transgressionis super casum c. and so declares in propria persona in an Action for that the Defendant being a Justice of Peace in the time of the late King James made a Warrant directed to the Constable charging the Plaintiff with being outlawed of High-Treason ubi re vera c.
it could not appear upon the Record but that the Verdict was against the Plaintiff upon the mistake of the Action whereas here it appears upon the Matter at large set forth in the Special Verdict that Judgment was given against the Plaintiffs upon the Merits of of the Cause And the Court were of Opinion that the Plea in Bar was good in this Case but they took the Case of Putt and Royston to be a Case of the same nature For tho' the Issue were General yet in regard of the Averments which in every such Plea there must be it appears to the Court that the Matter was the same as well as here it doth upon the Special Verdict and if it were not the same so that the Plaintiff was barred to the former by mistaking the Nature of his Action the Averment might be traversed Therefore by reason of that Case Adjudged and the Importunity of the Plaintiffs Leave was given by the Court to speak further to the Case the next Term. The Earl of Mountague versus The Lord Preston IN an Action on the Case for the Profits of the Office of Master of the King's Wardrobe the Plaintiff Declared That King Charles the Second in the 23th year of his Reign granted him a Patent to hold the said Office for Life reciting a former Grant thereof to the Earl of Sandwich and the Surrender of that Grant And that the Defendant by colour of a Patent granted to him in the First year of the late King James had entred upon the Office and taken the Profits and had deprived the Plaintiff of the whole benefit and profit of the Office Vpon Not guilty pleaded it came to a Trial at the Bar this Term and it was insisted upon for the Defendant That the Plaintiffs Patent having recited a former Grant that they must prove that Grant to have been surrendred To which it was Answered That if they took advantage of the Recital they must admit all that was recited as well the Surrender as the Grant And of that Opinion was the Court. Then the Defendant produced the Earl of Sandwich's Patent and this the Court held would put the Plaintiff to prove a Surrender And a Surrender was shewn in Evidence accordingly Note It was said in an Action of this Nature that it is not necessary to shew every particular Sum received by the Defendant But it is a good Evidence for the Damage to shew the Profit of the Office communibus annis Anonymus AFter an Extent upon a Statute and a Liberate out of this Court the Writ was Habere fac ' terr' tenementa instead of Liberari facias and it was moved to amend the word Habere in the Writ and to make it Liberari And after divers Motions the Court Ordered the Amendment to be accordingly because it is a Judicial Writ 8 Co. 157. a. 1 Cro. 709. A Writ of Enquiry was awarded to the Sheriffs of London and it was quod Inquirat instead of Inquirant and it was amended Vid. the Case of Walker and Riches 3 Cro. 162. and the Case of Keer and Guyn Hob. 90. but in that Case the Roll was wrong in a very material thing for it was not said in the Elegit the Lands and Tenements of the Defendant Anonymus AN Action of Debt was brought in this Court for a Sum of Money recovered in the Hundred Court and the Defendant was admitted to wage his Law tho' at first the Court doubted Vid. Mo. 276. for a Wager of Law to an Action of Debt brought for an Amercement in a Court Baron Note When the Defendant hath his Hand upon the Book before he is sworn the Plaintiff is to be called and he may be Non-suited The Defendant is to bring his Compurgators but they may be less than Eleven and they are sworn de credulitate Anonymus AN Action was brought for speaking of these words of the Plaintiff He broke my House like a Thief And upon Not guilty pleaded a Verdict was found for the Plaintiff And the Court held the words not to be Actionable Anonymus IN an Action for Words spoken of the Plaintiff in saying He was a Clipper and Coiner After Verdict upon Not guilty pleaded it was moved in Arrest of Judgment that the Words did not charge him with Clipping and Coining of Money and Clipping and Coining might be apply'd to many other things But the Court held the Words to be Actionable in regard of the strong Intendment and such Words are understood by those that heard them to mean Clipping and Coining of Money Anonymus AN Attorney brought an Action for that the Defendant said of him He is a Cheating Knave and not fit to be an Attorney After Verdict for the Plaintiff it was moved in Arrest of Judgment that there was no Communication of his Profession and the Words did not necessarily relate to his Practice But the Court held the Action would lye for saying That he was not fit to be an Attorney shewed plainly that Cheating Knave had reference to that Anonymus UPon a Motion for a New Trial it appeared that the Solicitor for the Plaintiff who also was an Attorney had wrote two Letters to two of the Jury before the Trial importuning them to Appear and setting forth the Hardships that his Client had suffered in the Cause and how he had Verdicts for his Title The Court set aside the Trial for this Cause and Committed the Solicitor to the Fleet for this Misdemeanor being Embracing of a Jury and before his Discharge made him pay Ten pounds to the party towards the Charges of the Trial. Pretious versus Robinson THe Cause being at Issue in Hillary Term last a Venire was awarded and a Jury Retorned upon it and in Easter Term after another Venire was awarded and a Trial was by a Jury Returned upon the two Venire's Vpon this the Court set aside the Verdict for there was no Authority for the two Venire's so all the Proceedings thereupon are void and not aided by the Statute of 16 Car. 2. Cooke versus Romney AN Action of Covenant was brought against two and it was quod teneat conventionem instead of teneant and after a Writ of Error brought it was moved that it might be amended and made teneant It was Objected That False Latin in an Original could not be amended as hos breve for hoc breve so in Waste destrictionem for destructionem Blackamore's Case 8 Co. But the Court granted the Motion and ordered the Amendment And it was said of late days it had been done in case of a word Mistaken in an Original as in Ejectment divisit for dimisit Vid. in Blackamore's Case the like 159. b. Imaginavit for imaginatus est was amended Anonymus IN Trover and Conversion for a Mare Vpon Not guilty pleaded and a Verdict for the Plaintiff it was moved in Arrest of Judgment that the Mare was said ad valentiam and it should have been pretii Sed non
gives the Action of Covenant to the Assignee of the Reversion saith That they shall have such Actions in like manner as the Lessors should have had Now if it had been brought by the Lessor it had béen transitory and so in the Case of an Assignment by Commissioners of Bankrupt the Assignee of the Commissioners of Bankrupt shall bring Debt as the first Creditor should have done But it was said on the other Side That the Statute intended not to assign it as a bare Chose en Action but to knit it to the Reversion and where it saith The Assignee shall have Remedy in like manner that is the same Remedy in substance And in the case of the Bankrupt's Debt the Contract is only assigned And in the 42 Ed. 3. cap. 3. it is said That an Action of Covenant lay for the Assignee at the Common Law But because the Court was not full it was thought fit this Case should be Adjourned till the next Term. Note It was said in this Case the Word Reddendum makes a Covenant Day and Pitts A Prohibition was moved for to stay a Suit in the Spiritual Court upon a Suggestion that it was for calling one Old Thief and Old Whore and if there were any such Words spoken they were spoken at the same time Which Suggestion was not good for the Words ought to have been fully confest And it was said by the Court That this Matter ought to have been pleaded there and if they had not admitted the Plea then to move for a Prohibition and not before Gilman and Wright BUrgh moved against Wright Steward of Havering Court in Essex for refusing to admit Gilman an Attorney in this Court to Appear for a man in an Action sued against him there alledging That the Attorneys of the Courts of Westminster might Practise in any Inferiour Court neither had they a Prescription or Charter to have a certain Number of Attorneys of their own and to exclude others But because it was the general Vsage of those Inferiour Courts to admit none but their own Attorneys tho' the Court seemed to incline That they ought not by Law to refuse Others and it was said to be so Adjudged in the 15th of Car. 1. in one Darcie's Case yet they would be Advised until the next Term. Note One who is Subpoena'd for a Witness may have a Writ of Priviledge to protect him from Arrests in going and returning Anonymus A Prohibition was granted to the Court of the Marches of Wales for that Lands being discended to an Infant which were subject to a Trust they had not only enjoyned the possession of those Lands but of other Lands discended to him And it was said by the Court That they could not Sequester Lands at all for the performance of a Decree of their Court to pay Money For they can only agere in personam non in rem Termino Sanctae Paschae Anno 21 Car. II. In Banco Regis Anonymus THe Sheriff Returned Non est inventus to a Writ brought against his own Bayliff and delivered to him But the Court Amerced him Forty shillings and he was ordered to amend his Return Anonymus TRover and Conversion was brought against Baron and Feme for that they ad usum proprium converterunt disposuerunt and held not to be good because the Wife cannot Convert with her Husband Skinner and Gunter c. A Bill in the nature of Conspiracy was brought against Three for that they 2 Cro. 667. Hob. 205 266. Conspiratione inter eos habita caused the Plaintiff to be Arrested in London on purpose to vex him and have him Imprisoned knowing that he was not able to find Bail whereas they had no cause of Action The Defendants pleaded Not guilty and the Issue was found only against one of them It was moved in Arrest of Judgment That the Declaration was Insufficient because it was not declared that the first Action was determined as no Conspiracy lies upon an Indictment before Acquittal But the Court inclined to disallow this for here the ground of the Action is the caussess troubling of him to put in Bail But when a man is Indicted he lies under the scandal of the Crime until he is acquitted Another Exception was That this Bill being in the nature of a Writ of Conspiracy there being One only found Guilty the Action fails But it was said True it is so in case of Conspiracy to Indict One of Felony but here 't is rather in nature of an Action upon the Case and the Conspiracy alledged by way of aggravation Fitz. N.B. 116. Et Adjornatur Anonymus AN Indictment was removed hither the last Term out of Middlesex against Edward S. of Perjury and he was named Edward all along in the Indictment unto the Conclusion and then it was sic praedictus Johannes commisit perjurium The Court was moved that this might be amended and it was said Indidictments removed out of London have béen amended by the Original for they do not certifie that but only a Transcript and a Jury have been resummoned to amend an Indictment found in this Court and in this case if by Examination of the Clerk of the Peace it appeared the Indictment certified varied from the Original it might be amended sed Curia advisare vult Nota If a Venire Facias be returned and not filed a new one may be taken out Thomas Burgen's Case AN Indictment was brought against Thomas Burgen for selling Ale in Black Pots not marked and doth not conclude contra formam Statuti and held to be good enough for the Common-Law appoints just Measures and tho' the Statute adds this circumstance yet the Crime being at the Common-Law the conclusion is as it ought to be Where a Statute makes an offence more Penal as that which deprives one that Steals the value of Five shillings out of a dwelling house in the day time of his Clergy yet the conclusion of an Indictment in that case is not contra formam Statuti Nota Where one is sued by a name with an Alias the Addition must ever be expressed after the first name Clerke and Cheney IN Trespass for breaking of his Close the Defendant justifies by reason of a way from his House thorough the place where usque aâ—tam viam regiam in parochia de D. vocat London Road and Issue was joyned upon the way and found for the Plaintiff Vid. Hob. 189. it was moved in Arrest of Judgment that there was no Issue joyned for the incertainty of the terminus ad quem whether this way should lead and one that justifies for a way if he alledges the place from whence and to which and that it leads over the place where 't is sufficient tho' he mistake the other mean passages of it and tho' this be the Defendants own Plea yet he may take exceptions to it not being certain enough to make an Issue Sed non allocatur for in regard it is found
of Ground whereupon a Pump stood and grants that he shall have the free use of the Pump during the term and Covenants that he should enjoy dimissa praemissa and assigns a Breach in that he suffered Antliam praedictam esse fractam totaliter spoliatam And to this the Defendant Demurs And it was said in Maintenance of the Action That the Defendant having granted the free use of the Pump was bound to do all things necessary to make his Grant effectual to the Plaintiff or else he broke his Covenant of Enjoying and if the Plaintiff should come to Repair it he would be a Trespasser And of this Opinion was Keeling But Twisden conceived That an Action of Covenant would not lye there being no express Covenant to Repair it Otherwise if he had taken away the Pump and here he might bring an Action upon the Case because he lost the use of it and they Two being only in Court it was Adjourned Postea Anonymus A Presentment was made in a Leet for Erecting of a Glass-House which was said to be ad magnum nocumentum per juratores Jurat ' pro Dom ' Rege Dom ' Manerii tenentibus It was said A Man ought not to be punished for erecting of any thing necessary to the exercise of his lawful Trade but it was Answered that this ought to be in convenient places where it may not be a Nusance For Twisden said He had known an Information Adjudged against one for Erecting of a Brew-House near Serjeants-Inn But the other Justices doubted and agreed that it was unlawful only to Erect such things near the King's Palace But this Presentment was clearly Ill because it was not ad commune nocumentum And it was said further That the Leet was the King's Court and therefore it ought not to be Jur ' pro Dom ' Rege Dom ' Manerii tenentibus But the Court held it Surplusage for tenentibus and good for the King and the Lord of the Mannor For Leets are granted to the Lords as derived out of the Tourn 2 Cro. 382. for the ease of the Resiants within its Iurisdiction More versus Lewis IN an Assumpsit the Plaintiff declares upon Two Promises One was That in Consideration that he had done him multum gratissimum servitium the Defendant promised to pay him Ten Pounds a year The Consideration of the other was That he had done him multa beneficia Vpon Non Assumpsit pleaded and found for the Plaintiff as to both the Promises and entire Damages given it was moved in Arrest of Judgment that neither of these Considerations were sufficient especially the last for there ought to have been some Service particularly expressed To which it was Answered That this being after a Verdict the Court must intend that the Plaintiff gave in Evidence something that he did which was Consideration sufficient otherwise the Jury would have give no Damages And a Case was cited in Hutton's Rep. 84. where the Plaintiff in an Assumpsit declared That in Consideration that she had served the Defendant and his Wife and done them loyal Service that he would give her 13 s 4 d And a Verdict being found for her she had Iudgment Sed nota In the Book nothing was said to be moved in Arrest of Judgment but the Insufficiency of the Consideration in respect that it was executed and laid to be done at the Request of the Defendant But the Court held clearly that nothing being particularly expressed in the Consideration of the Second Promise in this case it was meerly void and entire Damages being given the Plaintiff could not have his Judgment And thereupon Iudgment was Entred Quod querens nihil capiat per Billam Gregory versus Eads ERror to Reverse a Judgment given in the Court at Warwick in an Assumpsit where the Plaintiff declared of Three Promises whereof one was found for the Plaintiff and as to the other two that the Defendant Non Assumpsit and Iudgment was given for the Plaintiff for that which was found for him but no Iudgment was given as to the other that the Plaintiff should be amerced pro falso clamore or quod Defendens eat inde fine die And it was assigned for Error that this Judgment was defective and ought to be Reversed To which it was answered That the Judgment ought to stand for so much as was good Vid. con 2 Cro. 424. and 2 Cro. 343. was cited where in an Action for Words spoken at divers times the Jury found the Defendant guilty as to all and gave several Damages whereupon there was Judgment and a Writ of Error brought and assigned in that the Words spoken at one of the times were not Actionable Which being agreed the Court Resolved that Judgment should be reversed only quoad them and should stand for the residue for utile per inutile non vitiatur And Slocomb's Case 1 Cro. 319. where a Writ of Error was brought to Reverse a Judgment given in an Action for Words and assigned in that it was Entred Concessum fuit quod querens nihil capiat c. whereas it should have been Consideratum Yet because the Words were Insufficient the Court tho' they held the manner of the Entry erroneous ordered Judgment to be given Quod querens nihil capiat per Billam Et Adjornatur Postea Note It was said by Serjeant Maynard That after all the Evidence given in an Information the Kings Council may without the parties Consent withdraw a Juror and try it over again And so he said it was done by Hobart Attorney General 5 H. 7. and in the Exchequer by Noy in King Charles the First 's time Barkly versus Paine IN an Assumpsit in an Inferiour Court the Consideration was That the Plaintiff should solicit a Cause in Chancery The Court Reverst the Judgment for want of Jurisdiction It had also another fault for it was Defendens in misericordia capiatur Anonymus IT was moved to quash a Return of Rescous for that it was Vi armis in Ballivum meum affraiam fecerunt è custodia mea adtunc ibid ' rescusserunt and not Vi armis rescusserunt Sed non allocatur for by reason of adtunc ididem vi armis mentioned at first shall be applied to all Hanway versus Merrey THe Case was The Defendant had Covenanted to pay the Plaintiff a Sum of Money the 24th of June next whereupon the Plaintiff takes out a Latitat Teste 3 Maii Returnable the last day of Trinity Term following and Arrested the Defendant upon it Which being made appear to the Court they discharged the Arrest For tho' 't is allowed a man may take out a Latitat before the Money is due Yet the party must not be Arrested upon it before And this differs from an Original which if it bears Teste before the Money be due it is abateable but the Latitat is only to bring him in custodia that
if it were Repaired be it by any Body the Plaintiff hath no Damage nor cause of Action But Twisden doubted and afterwards the parties waived their Demurrer and went to Issue Anonymus AN Information was brought upon the Statute of Usury for taking the 30th of May in the 20th year of the King 42 s pro deferendo 25 l for three Quarters of a year viz. from the 30th of August Anno 19. Vpon Not Guilty pleaded it was found for the King and moved in Arrest of Judgment that this was not within the Statute which extends only where there is an Usurious Contract in the beginning and there it makes the Security void Or if there be an Agreement after the Money lent for Forbearance upon Consideration of paying more than the Statute allows for Interest which is punishable in an Indictment or Information but the Money is not lost But in this case the time of Forbearance was past and the party might give what he pleased in recompence for it there being no precedent Agreement to enforce him to it Sed non allocatur For the Court said They would expound the Statute strictly and if liberty were allowed in this case the Brokers might oppress the People exceedingly by detaining the Pawn unless the party would give them what they would please to demand for the time after failure of payment Wingate and Stanton the Bail of William Stanton IT was Resolved That where a Scire facias goes against the Bail in this Court an two Nichils are Returned and Judgment is had thereupon no Writ of Error can be brought in the Exchequer Chamber but in the Parliament only Also after such a Return it cannot be Assigned for Error that there was no Capias awarded against the Principal But in that case the Bail is relievable only by Audita querela But if the Sheriff Returns a Scire feci they may plead it Fitz. N.B. 104. I. Nota A man cannot Release a Debt by his Will The King versus Saunders SAunders was Convicted before two Justices upon the Statute of 32 H. 8. cap. 6. for carrying of a Gun Which being removed by Certiorari was quashed because it was coram nobis Justiciariis Domini Regis ad pacem suam conservand ' wanting the word assignatis Anonymus AN Indictment was quashed because it was Justiciarii ad pacem conservand ' assign ' and not ad pacem Domini Regis neither would ad pacem publicam serve And for another Reason because it was ad Sessionem in Com' tent ' and not pro Com' But if it were ad Sessionem in a Borough Incorporated it were good tho' it were not pro Burgo Maleverer and Redshaw DEbt upon a Sheriffs Bond The Defendant pleads that there was an Attachment issued out of Chancery against him Returnable Octab ' Sanctae Trin ' and the Condition of this Bond was that he should appear Crast Sanctae Trin. and so he pleads the Statute of 23 H. 6. against it for that it was taken for Easiamento favore The Plaintiff Replies That the Writ was Returnable Crastino Sanctae Trin. And Traverses That the Bond was taken for ease and favour To which the Defendant demurs Vid. 11 Co. 10. a. supposing that he should have Traversed that the Writ was Returnable Octab. Sanctae Trin. which is the Matter of the Defendants Bar and the other is but the consequence or Conclusion Et Adjornatur Gregory versus Eades ERror to Reverse a Judgment given in an Inferiour Court where an Assumpsit was brought and the Plaintiff declared upon three several Promises and the Jury found two for him and the other non Assumpsit And Judgment was given for the two that he should recover but no Judgment for the third that he should be amerced pro falso clamore or that the Defendant eat inde sine die And for this Cause Error was assigned But Powys Argued for the Defendant in the Writ of Error that the Judgment should be affirmed as to the Two Promises for which it was perfect and cited Miles and Jacob's Case in Hob. 6. and 2 Cro. 343. where an Action was brought for Words declared to be spoken at several times and several Damages given and Judgment and a Writ of Error brought and assigned for Error that the Words spoken at one of the times were not Actionable which tho' they were not yet the Judgment was Reversed quoad them only But the Court said That it was not like this Case for here the Judgment was altogether Imperfect and so were inclined to Reverse it but gave further time Ante. Anonymus IN Replevin the Defendant avows for Rent Arrear Vpon non concessit pleaded the Jury find for the Avowant The New Statute says That the Defendant may pray that the Jury should enquire what Rent is arrear and that he shall have Judgment for so much as they find Now the Court was moved that this might be supplied by a Writ of Enquiry as if they omit to enquire of the Four Points in a Quare Impedit it may be so supplied 10 Co. Cheney's Case But the Court held this could not be so for the Defendant loseth the advantage of it by not praying of it As where a Tales is granted if it be not Entred ad requisitionem Querentis or Defendentis it is not good wherefore he was bid to take his Judgment quod returnum habeat averiorum at the Common Law Anonymus FOur Executors two of them are under Age quaere Whether they shall all sue by Attorney Note An Infant may bring an Action against his Guardian which pleads any thing to his prejudice Not so of an Attorney Wells versus Wells IN an Assumpsit the Plaintiff declares as Administratix to her Husband who in his Life-time agreed with the Defendant That they should be Partners in making of Bricks for J. S. and after his Death the Defendant promised the Plaintiff in Consideration That she had promised him to relinquish her Interest in the Partnership that he would pay her so much Money as her Husband had been out about the Brick And upon non Assumpsit pleaded it was found for the Plaintiff It was moved in Arrest of Judgment that here was no Consideration for the Plaintiff had no interest in the Partnership which being joynt must survive to the Defendant and she ought to have shewn how she relinquished her Interest But the Court held it a good Consideration for it may be there were Covenants that there should be no Survivorship and the Court will intend after a Verdict that there were which tho' they do not sever the joynt Interest in Law yet they give Remedy in Equity which to debar her self of is a good Consideration and being laid by way of Reciprocal Promise there needs no averment of performance Termino Sancti Michaelis Anno 21 Car. II. In Banco Regis William Bate's Case A Prohibition was prayed to the Commissary of the Archdeacon of Richmond to stay a Suit
Goods by Patent at least not before Conviction Neither were the words of the Patent very full to this purpose for they were only That they should forfeit such Ships and Goods and be imprisoned as by Law could be inflicted upon the Contemners of the Kings Authority 8 Co. 125. Noy 183. And the Court said the question was Whether the King could Prohibit the Importation of Foreign Goods for if he might the Importation of them would cause them to be forfeited And the Chief Justice said The Ship also in which they were shipped But no Forfeiture of English Goods could grow by Letters Patents And admitting all this for the Defendant yet it was said the Plea was naught First Because he justified by a Command from a Corporation and did not alledge it to be by Deed And it was agreed that a Corporation might employ one in ordinary Services without Deed as to be Butler 18 Ed. 4. 8. Br. Corp. 59. or the like But one could not appear in an Assize as a Bailiff to a Corporation without Deed Pl. Com. 797. 12 H. 7. 27. Neither can they Licence one to take their Trees without Deed nor send one to make a Claim to Lands 9 Ed. 4. 39. They cannot make themselves Disseisours by their assent without Deed or Command one to Enter for a Condition broken 7 H. 7. 9. Rolls Tit. Corp. 514. Again it was said The Plea was double for that the Patent Prohibits the Trading thither and also Importing from thence and 't is laid that he loaded Wines there and brought them hither so an offence respecting both Parts and one would have served But of these matters the Court would be advised Burwells Case UPon complaint to two Justices about a Bastard Child they by the 18 Eliz. order one Reynolds to keep the Child Vpon this Reynolds appeared at Sessions where they vacated the Order and referred it back again to the Justices who do nothing The next Sessions after Burwell is judged the reputed Father and ordered to pay so much a Week to the Parish until the Child was 12 year old This was removed into the Kings Bench by Certiorari And they resolved That the referring back again to the Justices by the Justices at the Sessions was not warranted and that the last Order was insufficient because it was that he should pay the Parish due time until the Child was 12 year old whereas the Father might take it away when he pleased but it ought to have béen that he should allow so long as it should be chargeable to the Parish wherefore they bound the Parties to appear at the next Sessions by Recognizance Anonymus A Man hath a Messuage and a Way to it through anothers Freehoold and 't is stopped then the House is aliened the Alienee can bring no Action for this Nusance before request If a Man lets a House reserving a Way thorough it to a Backhouse he cannot come thorough the House without request and that too at seasonable times Anonymus IF the Husband and Wife be Arrested in an Action that requires Special Bail and the Husband puts in Bail for himself he must put in Bail for his Wife also but if he lyes in Prison the Wife cannot be let out upon Common Bail But it is otherwise if the Husband absconds himself and cannot be Arrested Anonymus IF a Man brings Debt for Rent and upon his own shewing he demands more than is due and upon non debet pleaded the Jury find for him he may remit the overplus and have Judgment for the residue Note One was Committed for sending of a Note to a Juryman after a privy Verdict was given to know what Verdict they gave Parris's Case AN Information was brought against him for that he fraudulenter deceptivè procured one Ann Wigmore to give a Warrant of Attorney to confess a Judgment To this he pleaded Not guilty and upon the Tryal it was debated whether she might be admitted to give Evidence against the Defendant for if he were Convicted the Court said they should set aside the Judgment Nevertheless she was sworn by the Opinion of 3 Judges against Twisden This Suit being for the King Vpon his Tryal he was found Guilty and fined 100 Marks and ordered to come with a Paper on his Hat expressing the offence Note No Writ of Error to reverse a Judgment given in an Action qui tam c. lyes into the Exchequer-Chamber because the King is Party so also upon the Statute de Scandalis Magnactum 1 Cro. Lord Says Case Perill versus Shaw A Scire facias was brought against the Bail who pleade that before the Return a Capias was issued out against the Principal and that he was taken at D. and detained in Prison quousque postea he paid the Money The Plaintiff pleads non solvit Then the Defendant Demurrs And it was adjudged for the Plaintiff for the Defendants Plea was vitious because there is no place alledged where the Money was paid and it is not necessary to be intended to be paid where he was Imprisoned And though the Plaintiff did not Demurr but replied yet when there is a Demurrer the first fault is fatal Sir John Kerle versus Osgood AN Action was brought for these words spoken of him being Justice of the Peace He is a forsworn Justice and not fit to be a Justice of Peace if I did see him I would tell him it so to his Face After Verdict for the Plaintiff it was moved in Arrest of Judgment That these words were not actionable because forsworn doth not necessarily intend any judicial Perjury and there was no Communication of his Office One said of a Justice of Peace He is a Blood-sucker and seeks after Blood if one will give him a couple of Capons he will do any thing and held not actionable because there was nothing to make them relate to his Office Rolls 56 29. Nevertheless the Plaintiff had his Iudgment by the Opinion of all the Court for the calling of him forsworn Justice shews he intended Perjury relating to his Office to which an Oath is annexed Manwood brought an Action for calling of him A corrupt Judge 4 Co. Cases of Slander 1 Cro. for calling of an Attorney A cheating Attorney And Sir John Masham recovered for calling of him Half-eared Justice Vid. Rolls 53. pl. 4. and 4 Co. Stucleys Case And here the latter words viz. That he is not fit to sit upon a Bench Shews that he intended the Scandal in his Office and words shall not be taken in mitiori sensu so far as to draw them from the general Acceptation and sermo refert ad conditionem personae Twisden cited a Case where a Man brought an Action for saying He was a Debaucht Man and not fit to be a Justice of the Peace and not maintainable because spoken of the time past If it had been He is Debauched he said the Action would lie Hill versus Langley DEbt upon a Bond to perform an
Justices of the Peace in persuance of the Statute of 18 Eliz. was removed into this Court which was excepted to First For that they had appointed the Father to allow 4 s to the Midwife whereas it did not appear that the Parish had procured her or that they were chargeable with it Secondly For that they ordered 7 s a week to be allowed for the Nursing Cloaths c. of the Child until it should be able to get its living by working which was said to be excessive in the Sum and uncertain for the time for it should have béen for so long time as it shall be chargeable to the Parish Hale said that they could make no allowance to the Midwife unless in discharge of the Parish Twisden said that they could not order the 7 s a week to be paid until it should be able to get its living for perhaps the Father would take it away and maintain it himself which he may do if he please but that the Order might be quashed without more delay and the matter remanded to further Examination Sherman consented to pay all the Arrears of the 7 s a week and the Costs that had béen expended in Maintenance of this Order or what more should be laid out in case he should be again found the reputed Father of the Child for he said it was imposed upon him by Combination whereupon it was quashed Sir Ralph Bovy's Case AN Action was brought upon an Escape for that he being Sheriff of Surry voluntarily suffred J. S. whom he had in Execution to escape He pleads that be made fresh pursuit and took him again and doth not Traverse the voluntary Escape to which it was demurred Et Adjornatur Anonymus A Scire facias against the Conusee of a Statute who had extended supposing that he was satisfied He pleads that before the Scire facias brought he had assigned over all his interest and prays Iudgment of the Writ Hale said that the VVrit was good seeing he was a Party to the Record the Plaintiff need not take notice of the Assignee unless he please and if there be part of the Debt unsatisfied that is to be tendred to the Conuzee In a VVrit of Disceit to reverse a Fine of Land in antient Demesne after Assignment the Conuzee shall be made party So in a VVrit of Error tho the Terretenant shall not be turned out of possession without a Scire facias Dionise versus Curtis TRover de duabus Centenis Plumbi urae Anglicè two hundred weight of Lead Ore It was objected that Centena signifies an hundred in a County and 't is uncertain here of what it should be understood but the Court said it was good with the Anglicè and to be understood by the subject matter Trover de duobus ponderibus casei Anglicè two weigh of Cheese hath been held good So de duobus oneribus Cupri Anglicè two Horse loads of Copper Evans c. IN an Action upon the Case whereas he pretended Title to certain Goods in the Custody of one Susan Pricket and claimed them to be his own intending to remove them the Defendant in Consideration that he would suffer them to continue there assumed to see them forth coming and that they should not be imbezelled but safely kept to the use of the Plaintiff and shews that afterwards the Goods were Eloigned c. Vpon Non Assumpsit and Verdict for the Plaintiff it was moved to stay Judgment that it doth not appear that the property of these Goods was in the Plaintiff for it is alledged only that he pretended to them and claimed them to be his own Sed non Allocatur For the Declaration is full enough at least must be intended he proved they were his own or the Jury would not have found for him Anonymus IN Debt upon a Record in an inferiour Court upon Nul Tiel Record pleaded they shall certifie only tenorem Recordi and grant Execution afterwards Hale said that he had seen a Certiorari to certifie tenorem Recordi upon a Tryal at Bar concerning the Toll of Uxbridge the Town pretending to be incorporated and to have a right to the Toll and it was resolved that no Bugh holder could be a Witness for the Town Termino Sanctae Trinitatis Anno 24 Car. II. In Banco Regis Mekins versus Minshaw A Prohibition was prayed to the Court of the Chamberlain of Chester where an English Bill was preferred setting forth that J. S. being Indebted to the Plaintiff the Defendant upon good Consideration promised That if J. S. did not pay it he would and that he wanted such precise Proof of the Promise as the Law required Wherefore he prayed to be relieved by the Equity of the Court. The Defendant confessed the Promise in his Answer and alledged further That he had paid the Money And a Prohibition was granted for the Plaintiff had now obtained the end of his Suit and might have remedy at Law upon the Evidence of the Defendants Answer Anonymus AN Action was brought for these words The Defendant said of the Plaintiff That he had picked his Pocket against his Will and at the same time de ulteriori malitia said He was a Pick-pocket The Defendant Iustified but in such manner as it was Ruled against him Then he moved to stay Judgment upon the Insufficiency of the Declaration And the Court were of Opinion that the Words were not Actionable as carrying with them no necessary implication of Felony and might mean only Trespass And Hale said He would not improve Actions for Words further than they are Fortescue versus Holt. A Scire facias was brought upon a Judgment of 1000 l as Administrator of J. S. The Defendant pleaded That before the Administration committed to the Plaintiff viz. such a day c. Administration was granted to J.N. who is still alive at D. And demanded Judgment of the Writ The Plaintiff Replies J. N. died c. de hoc ponit se super Patriam And to that the Defendant Demurs For that he ought to have Traversed absque hoc that he was alive For tho' the Matter contradicts yet an apt Issue is not formed without an Affirmative and a Negative and so said the Court. And also that the Defendants Plea was bad being Concluded in Abatement whereas it goes in Bar which was so palpable as made it evident to be used only for delay Which Hale observing he did exceedingly blame the bad Practice that is amongst Counsel in advising such Pleas and said it was within the Penalty of Westm 1. Serjeants Counters c. and said Tho' Counsel were obliged to be faithful to their Clients yet not to manage their Causes in such a manner as Justice should be delayed or Truth suppressed to promote which was as much the Duty of their Calling as it was the Office of the Judges tho' not in so Eminent a Degree In this Case it was doubted Whether Judgment final should be given or a
should be informed what their course is and has been and therefore let us hear the Civilians as to this point Post The King and Marlow THe Defendant being a Printer was indicted for his second Offence for Printing of a Seditious Book contrary to the Act of 14 Car. 2. cap. 33. and being found Guilty at the Sessions of the Old Baily the Iudgment was given That he should be for ever disabled to exercise the Art or Mistery of Printing and pay 20 l Fine and to stand in the Pillory And a Writ of Error was brought and Errors were assigned in the Judgment as varying from the words of the Act. For First The Act is That he should be disabled to exercise the Art and Mistery of Printing or Founding of Letters And the Judgment is only to disable him from Printing Secondly The Act is That he shall receive such further punishment by Fine Imprisonment or other Corporal Punishment And the Judgment is both for a Fine and Corporal Punishment when it ought not to be for both Curia The first is as it should be for Printing and Founding of Letters are two distinct Trades and the words are to be taken respectively to such Trade as the Defendant is of Again 't is a Rule that a Man shall not Assign an Error in that which is for his advantage But the second was held an Error for that the Act did not intend a Fine and Corporal Punishment both and therefore the Judgment was reversed Termino Sancti Michaelis Anno 29 Car. II. In Banco Regis Davis versus Price IN Error upon a Judgment in the Common Bench in an Action of Trover where Iudgment was given by default The Error was assigned in the Declaration which was de decem Juvencis Anglice Bullocks and Heifers and not said how many of one and of the other But it was answered that the Latin word being proper and of known signification the Anglice was void according to Osborns Case 10 Co. But the Court reversed the Judgment and cited the Case before in this Court Trover de viginti ovibus matricibus agnis And it was resolved to be naught for not ascertaining the number of each But Twisden said there was a Trover brought de Viginti averiis ivz. Bobus agnis c. and Viginti was applied to each Species and held well It was offered in this case to distinguish it from the case de Ovibus matricibus agnis that there the Latin was of two sorts Sed non allocatur for the words here being Equivocal it was all one Dutton versus Pool AN Assumpsit the Plaintiff declared That his Wives Father being seized of certain Lands now descended to the Defendant and about to cut a Thousand pounds worth of Timber off from the said Lands to raise a Portion for his said Daughter the Defendant promised to the Father in Consideration that he would forbear to fell the Timber that he would pay the said Daughter 1000 l After Verdict upon Non Assumpsit for the Plaintiff it was moved in Arrest of Judgment that the Father ought to have brought this Action and not the Husband and Wife and there was a case shewn to be adjudged in the Common Bench Hillary 23 and 24 Car. 2. Rot. 1538. between Pine and Norris where the Son promised the Father that in Consideration that he would Surrender a Copyhold to him that he would pay a certain Sum to his Sister for which she brought the Action and then held that it would lie for none but the Father for where the Party to whom the Promise is to be performed is not concerned in the meritorious cause of it he cannot bring the Action But if a Promise were to a Man that if his Daughter should Marry his Son he would give her 1000 l there because the Daughter does the Act which is the Consideration she may bring the Action On the contrary the Case was cited 1 Rolls 32. Starkey and Miln where in Consideration of certain Goods sold the Promise was to pay part of the Money to another there that other might bring the Action And it differs from the case where Money is delivered to A. to pay over to B. B. may bring Debt Yelv. 24. If the Father had in the Case at Bar cut the Trees And the Son had said Let me have the Trees and I will pay the Daughter so much that had been the same with the Case before cited 1 Roll. and it doth not seem to differ as it is 1 Cro. 163. Rookwook Case where the Father being about to charge the Land with a Rent of 4 l per Annum to his Younger Sons the Eldest promised that if he would forbear to charge the Land he would pay the 4 l per Annum and the Sons upon this brought the Assumpsit and recovered Sed vide librum that Promise is said expresly to be made to the Sons who were present Vid. 1 Cro. 619.652 Levett and Haws Case where the Promise was made to a Man in Consideration that he had agreed that his Son should Mary his Daughter and to settle such a Joynture upon her that he would give the Son 200 l with her and for this the Father brought the Action and held well brought tho' the Court seemed to incline that the Son might also have brought it And the Court here inclined for the Plaintiffs Sed Adjornatur Post Saunders versus Williams IN an Action upon the Case the Plaintiff Declared that he was seised in Fee of one Acre and possessed for a certain number of years in another Acre and had a Common in Black-acre for Beasts levant and couchant thereupon and that the Defendant put his Beasts in the place and disturbed him The Defendant pleaded a Title of Common to himself also there Vpon which Issue was joyned and found for the Plaintiff and it was now moved in Arrest of Judgment that the Plaintiff had made no Title to the Common by Prescription or otherwise Sed non allocatur The Defendant being a Wrong-doer And the same Matter was Adjudged in the Court between St. John and Moody St. Mich. 27 Car. 2. quod vide ante and in the 2 Cro. 43.122 3 Cro. 500. Robinson versus Woolly THe Case was this Term Argued again And Holt Argued That the Induction tho' executed by the Archdeacon after the New Bishop was Consecrated was sufficient The Bishop is only to Admit and Institute and to send a Mandate to the Archdeacon to Induct who is to do it de communi Jure and therefore if the Bishop hath Admitted and Instituted and made a Mandate for Induction 't is a sufficient Excuse for him in a Quare impedit 11 H. 4. 9. for the Bishop is meerly a Spiritual Officer A Prebendary is to be Inducted by the Dean and Chapter Pl. Com. 529. But 't is Objected That the Archdeacon does not Induct ex Officio â—ut a Mandate from the Bishop is requisite scilicet First The
are few that she goes to but lye desperately ill or dye under her hands Action good 21 Thou art a thievish Rogue and didst steal Plate from Wadham Colledge in Oxford The Words spoke in London where to be tryed 22 263 He is a Forsworn Justice and not fit to be a Justice of Peace if I did see him I would tell him so to his Face Action good 50 You are a Pimp and a Bawd and fetch young Gentlewomen to young Gentlemen 53 Of an Attorney That he could not Read a Declaration 98 He hath broke 2 or 3 of his Fathers Ribs of which he shortly after dyed and I will complain to a Justice of him he may be hangd for the Murder tho it were done 20 years since Action good 117 Of a Woollen Draper You are a Cheating Fellow and keep a false Book Action lies 117 He hath Forged his Vncle Row's Will 149 He had pickt his Pocket against his will and was a Pick pocket Not Actionable 213 Of a Justice of Peace He is not worth a groat and is gone to the Dogs Not Actionable 258 He is a false cheating Knave and keeps a false Debt Book with which he cheats the Country Actionable 263 For charging the Plaintiff with Felony generally Good 264 Of an under Carrier of Post Letters He hath broken up Letters and taken out Bills of Exchange Not lies 275 The Defendant said to the Plaintiff I know my self and I know you I never buggerd a Mare The words Actionable 276 He would have given D. Money to have Robbed G's House and he did Rob it 323 Administration By the Civil Law Administration ought to be committed to the Residuary Legatee whether Assets or not Assets 218 To which the Court of K. B. strongly inclined 219 316 Admiralty May punish one that resists the Process of their Court and may Fine and Imprison for a Contempt in the face of their Court but not give the Party Damages 1 Where Sentence is obtained in a Foreign Admiralty one may Libel for Execution thereof here thô the matter were not originally determinable in our Admiralty yet if the Contract were made on Land beyond Seas Prohibition lies 32 Its Jurisdiction in seizing Ships 173 It hath Jurisdiction of Ships taken by Pirates but not if taken by Enemies 308 Hath Jurisdiction for Mariners Wages 343 Age. Bond Conditioned that the Son and the Daughter of J. S. shall at their full Age give Releases this must be taken at their respective Ages 58 Alien Of his Capacity and Incapacity 417 Amendment The Court having Power over their own Entries and Judgments can amend defaults of Clerks after Judgment thô in an other Term 132 Mistake of the name in a Judgment in Ireland amendable here 217 No Amendment of a Return after the Filing 336 Apprentice See Statutes Whether the Quarter Sessions can discharge an Indenture of Apprenticeship 174 Appurtenant See Reputation A thing Appurtenant may be by Grant but a thing Appendant must be by Prescription 407 Connisance of Pleas may be created by the King 's Grant as he pleases either in Gross or as Appurtenant ibid. Arbitrament Award What Pleas good in Arbitrament and what not 50 71 87 184 Arrest Where the Bayliff may break a House upon an Arrest 306 Assault and Battery In an Action for both the Defendant may be found Guilty of the Assault but not of the Battery and here no more Costs than Damages 256 Assets Bonds and Specialties no Assets till the Mony be paid 96 Assignment Assignment where the Assignor keeps Possession Fraudulent and such Fraud may be avered 329 331 The word Assignees includes Assignees in Law as well as Fact 340 Assumpsit See Pleading Whether a Stranger to the Consideration may bring the Action 6 7 318 332 Good cause of Demurrer in Assumpsit where the Consideration carries nothing of trouble or prejudice to the Plaintiff or benefit to the Defendant 9 A mistake in the time relating to a Promise good after a Verdict 14 see also 119 Whether multum gratissimum servitium and multa Beneficia be sufficient Considerations in an Assumpsit 27. So for opere labore Servitio 44 Infant may make a Consideration whereon to ground an Assumpsit 51 The Breach must be laid as the Promise is 64 Forbearance of Suit where a good Consideration whereon to ground an Assumpsit 120 152 154 159 Claim without proof where good to ground a Consideration in an Assumpsit 211 Of Reciprocal Promises 177 214 Assumpsits in Consideration of Marriage 262 268 One Excommunicated for not paying in a Church Rate a Promise to pay in Consideration of Absolution Good 297 In Consideration of delivering Goods to a third person Good 311 Attorney See Mandamus Attorneys at large have the same priviledge with Clerks of the Court 1 Whether an Attorney in the Courts at Westminster may practise in Inferiour Courts 11 Attorneys shall be discharged of the Service of the Common Wealth à fortiori of any private Service as Constable Collector of Rents c. 16 29 Committed for Suing out a Bill of Middlesex against a Countess 295 An Attorney or Clerk of Court shall not have Priviledge if Sued joyntly with others 299 Averment See Pleading Assignment Obligation Where necessary and where not 41 43 44 117 149 177 178 B. Bail THe Action shall not be said to be depending until the Bail is Filed and not from the first day of the Term 135 Condition of the Bail Bond ought to agree with the Writ or else be void 233 234 Whether the Principal and Bail may be both taken in Execution 315 Bankrupt A Tradesman given over Trading may be a Bankrupt in respect of Debts contracted before 5 What makes a Man a Trader so as to make him a Bankrupt 29 166 A Man has Judgment in Debt and then becomes Bankrupt who shall have Execution 193 Victuallers for the Fleet not Traders within the Statute of Bankrupts tho' they Victual Merchantmen with the Surplus 170 The Commissioners Authority as to Commitments 323 Where a Debt paid by a Bankrupt to his Creditors shall be refunded 370 371 Baron and Feme See Statutes In Trover that they ad usum proprium converterunt c. Not good 12 24 33 Indebitatus Assump lies against the Husband for Apparel sold to the Wife 42 How to be Bailed when Arrested 49 Baron and Feme taken in Execution the Husband Escapes the Escape of the Husband is the Escape of the Wife and she shall be discharged 51 Battery brought against both and found only against the Feme Good 93 In a Suit the Baron makes an Attorney for both except the Feme be under Age 185. For then she is to be admitted by Guardian ibid. Where the Husband cannot release without the Wife 209 Battery brought by B. and F. for beating them both how far good 328 Bishop See Pleadings Of Common Right the Dean and Chapter are Guardians of the Spiritualties during the Vacancy of a Bishoprick but the
that he should suffer a Recovery his Term is not drowned 195 Tenant for Life with power to make a Jointure suffers a Recovery the Power is extinguished 226 227 Good tho' a Stranger that hath nothing in the Land be made Tenant to the Praecipe for a Recovery being a Common Assurance is to be favourably expounded 358 Whether a Recovery can be suffered where the Tail is expectant upon an Estate for Life the Tenant for Life not being made Tenant to the Praecipe 360 Release See Obligation Of all Demands its effect 314 Remainder Contingent Remainder by what Act destroyed 188 306 334 345 No Cross Remanders upon Construction in a Deed tho' sometimes in a Will 224 Rent Difference between a Rent and a Sum in Gross 99 Lease by Tenant in Fee and Rent reserved to the Lessor Executors Administrators and Assigns the words Executors and Administrators void 162 A Rent may be reserved by Contract without Deed 242 Where Rent shall be suspended and where apportioned by the Lessors Entry 276 277 Reputation Lands repurted parcel of a Mannor shall pass in a Recovery under the Word Appurtenances 52 Retorn Sheriff amerced for retorning Non est inventus on the Writ brought against his Bayliff 12 24 Sheriff retorns that Goods came to the Executors hands elongavit vendidit disposuit ad proprium usum suum convertit this tantamounts to quod devastavit 20 221 Sheriff retorns upon a Fi. fa. that he had taken Goods and that they were rescued from him not good 21 Action against Sheriff for a false Retorn of Cepi Corpus 85 Revocation What shall be a good Revocation upon a Power reserved 278 infra S. Scandal See Action upon the Case for Slander Scandalum Magnatum I do not know but my Lord of P. sent G. to take my Purse Action lies 59 Difference between an Action on the Statute of Scandalum Magnatum and a Common Action of Slander the Words in one Case shall be taken in mitiori sensu and in the other in the worst sense against the Speaker that the Honour of Great Persons may be preserved 60 Sewers Commissioners of Sewers and their Proceedings subject to the Jurisdiction of the King's Bench notwithstanding the Clause in Statute 13 Eliz. cap. 9. 67 Sheriff Sheriff may bring Trover for Goods taken in Execution and after taken away by the Defendant in the first Action 52 Soldiers Every Officer and Soldier as liable to be arrested as a Tradesman or any other person whatsoever 251 A Captain and Serjeant committed to Newgate for a great Misdemeaner in rescuing a Soldier ibid. Statutes When a Statute makes an Offence the King may punish it by Indictment but an Information will not lie when a Statute doth barely prohibit a thing 63 31 Ed. 1. Statute of Winton in an Action upon this Statute what taking shall be sufficient to discharge the Hundred 118 235 4 Ed. 3. cap. 7. Action lies for Executors upon this Statute for cutting and carrying way Corn 187. This Statute hath been always expounded largely ibid. 3 H. 7. cap. 2. A Wife forcibly married contrary to this Statute shall be admitted to give Evidence against her Husband 244 5 Eliz. cap. 4. For using a Trade not being Apprentice thereto 8 51 142 326 346 364. This Statute in relation to Apprentices expounded 174 31 Eliz. cap. 7. Of Cottages no Offence against this Statute to erect a Cottage if no body inhabits therein 107 43 Eliz. cap. 2. Poor By this Statute that enables Justices of Peace to tax a Neighbouring Parish the Justices may tax any of the Inhabitants and not the whole Parish 350 21 Jac. cap. 26. Of Felony to Personate 301 12 Car. 2. Of Ministers A good Act being made by King Lords and Commons and any defects in the Circumstances of calling them together ought not to be pried into 15 This Act extends only to Benefices with Cure ibid. 14 Car. 2. cap. 10. 16 Car. 2. cap. 3. Harth-mony Smiths Forges shall pay 191 192. So empty Houses 312 14 Car. 2. cap. 33. Of Printing Seditious Books 316. 16 Car. 2. cap. 7. Of Gaming Articles for above 100 l at a Horse Race within this Statute 253 254 17 Car. 2 cap. 2. Of Non Con-Ministers explained 328 29 Car. 2. Of Frauds and Perjuries No Promise made before the 24th of June within this Act 330. What Contracts within ths Act 361 31 Car. 2. Habeas Corpus Prayer must be made by Council wiihin the first Week after the beginning of the Term 346 T. Tail THO' a Term in gross cannot be entail'd yet where man hath a Term in point of Interest and at the same time the Trust of the Inheritance here he may entail the Trust of the Term to wait upon the Inheritance 194 What Words create an Estate Tail and what in Remainder contingent or vested 215 230 231 Estates Tail how forfeitable for Treason 299 infra A Devise to a Man and the Heirs Males of his Body with a proviso if he attempts to alien the Estate to cease the Condition void 321 322 A Limitation in Tail how it operates 378 Tender Tender and refusal is as much as payment 167 Tender where not good 252 261 Teste Where the Teste of a Writ before it was taken out is notwithstanding good 362 Tythes May be paid of a Warren by Custom 5. So of Doves and Fish ibid. Whether an Executor may bring Debt upon the Statute 2 E. 6. for Tythes due to the Testator 30 31 Where and what Modus shall bar the Recovery of Tythes in specie 32 A Prescription cannot be suggested time out of mind to pay a Modus for Tythe Hops since they were not known in England till Queen Elizabeth's time 61 Tythes of VVood tho' not Fewel payable unless exprest to be burnt in a House for the maintenance of Husbandry 75 Treason In Coyning and Clipping the Judgment 254 For raising a Rebellion in Carolina 349 Trespass See Pleading Quare Clausum fregit and threw down his Fences what Plea in Justification good 221 Continuando in Trespass where good and where not 363 Trust See Tayl. A Use in former time the same with what a Trust is now 130 Where a Trust for Life Remainder over with Power of Revocation is forfeitable and where not 128 infra Whether a Trustee is compellable to produce Writings or the Key of the Box wherein they are against the Interest of the Party for whom he is Trustee 197 Tryal See Venue What shall be Cause for new Tryal what not 30 Justices of Assize may try Informations tho' commenced before the Justices of a former Assizes 85 181 V. Venue WHere a Deed is forged at S. and given in Evidence at D. from whence the Venue ought to come in an Information thereupon 17 A Breach of Covenant assigned in Barwick the Venue shall arise from the next place in Northumberland 58 Judgment by Nihil dicit reverst after a Writ of Enquiry executed because no
tit ' Act ' Case 120. So 9 H. 6. 60. Action against an Escheator who had taken an Office whereby the Party was found to hold of J.S. and he retorned one whereby he was said to hold the Moiety in Capite Where an Officer does any thing against the Duty of his Place and Office and a Damage thereby accrues to the Party an Action lies 'T is positively affirmed here he had the greater Number Archer of the same Opinion This is a wilful dental of the duty of the Defendants Place and for the particular Damage an Action lies 'T was said there might be many Competitors and all might bring Actions No for 't is averred that the Plaintiff had the greatest Number An Action lies against an Arch-Deacon for not inducting F. N. B. 94. So if a Sheriff will not execute a Writ of Seisin an Action lies against him An Action lies against an Ordinary for admitting a wrong Patrons Clerk against a Verdict in a jure patronatus Hob. 318. I agree to the Case put at the Bar that upon a Writ de Coronatore eligendo if the Sheriff will not retorn him Coroner who was chosen by the major part an Action upon the Case lies tho' I know no Authority for it in point Vid. 6 E. 4. 9. b. Pl. 21. A man that has a Title to an Office before he has possession shall have an Action upon the Case after an Assize 21 E. 4. 23. is as memorable a Case for the purpose as any I know there Fairfax gives good advice to Pleaders to mind Actions upon the Case and then he said the use of the Subpoena would not be so frequent Hob. 205. Action for suing double Execution I think Actions upon the Case should be according to Justice Fairfax's his advice favoured in Courts of Justice Tyrrell Perhaps there never was such an Action which is an Argument against it Litt. 107. but I think it lies Action lies not against a Lord for not admitting a Copy-holder nor against Feoffees in trust for refusing to make a Feofment or a Tenant for refusing to Attorn or against a Foeffor for refusing to make Livery according to the Charter but it lies against an Officer or against a Clerk for refusing to enroll This Action is for Damages for being prevented of having the Office and not for the Office it self The Cases of the Copy-holders c. are not to be compared to this for there are proper Remedies for them as Subpoena's and other Writs at the Common Law but here is none De cetero non recedunt Partes a Curia nostra sine Remedio ne Curia deficeret in Justitia exhibenda says the Statute And my Lord Coke says 't is a Maxim in Law that no Action lies for the Ward against the Lord which disparages him but the next of Kin may enter Co. Lit. 107. An Action lies as much for injurious preventing him of having the Office as for hindring in of him the executing of it after that he is in For Actions of the Case are not of any certain Form but vary according to the Circumstances It was objected That every Action upon the Case supposes dammens injuriam now here was no Election 't is impossible to know whether he should be an Officer Answ The Custom is alledged positive that he which hath the greater Number is elected ipso facto again qui destruit medium destruit finem 't is as bad as if he had turned him out of his Office It may be tried whether he were duly elected and 't is in effect tried here there cannot be multiplicity of Actions brought by this this Mayor will make himself sole Iudge and Arbiter and dispose of Elections which should be Popular and as my Brother hath said an Action of the Case lies for a possibility of Damage Vaughan Chief Justice contra That wherein I am satisfied is that no Damage appears suppose none had been elected he should not have an Action more than any person in the Town If a Mayor will not elect a Burgess or a Sheriff a Knight no Action lies because there is no Election If an Officer will not elect at all 't is against his Duty and so 't is if he do it unduly but he is punishable in a publick way by Information or it may be by Indictment If 20 had stood must each have recovered the value of the Place Object But there is an Averment that he was chosen by the greater Number Answ That can't be put in Issue or known or tried suppose the Election were by Ballots c. should he have an Action for not opening the Box. In the Case of the Coroner there is apparent Damage and 't is against the Statute and in the Case of Induction there is a certain loss I take it that 't is not Actionable to call a man Bastard while his Father is alive the Books are cross in it nay if Land had Discended I doubt it without a Special Damage no more than to say one had no Title to his Land The Case of the Market is close but there the Person damnified is certain and the thing leads to deprive him of the benefit of the Kings Grant But my Brothers have given the Rule take Iudgment King of Grayes Inn versus Sir Edward Lake ACtion for that whereas he was bred up to the Law and practised it and had many Persons of Honour and others his Clients and thereby got Money and maintained his Family c. The Defendant falso malitiose wrote a Letter to Ann Countess of Lincoln who was the Plaintiffs Client containing that the Plaintiff would give vexatious and ill Councel and stir up a Suit and that he would milk her Purse and fill his own large Pockets c. per quod he lost the said Countess and other Clients Vpon not Guilty pleaded and a Verdict for the Plaintiff It being moved in Arrest of Iudgment Wyld Archer and Tyrrell held that the Action lay 't is a Scandalous Letter concerning his Profession and here is a Special Damage He does give bad Counsel spoken of a Lawyer judged Actionable so Dunce stirring up Suits is taken in malam partem Vaughan Chief Justice I must submit to the Rule given but am of another Opinion In ancient Books we do not read of an Action for Words unless the Slander concerned Life 'T was held not actionable to call Villain unless 't were added he was lain in wait to be seised the growth of these Actions will spoil all communications a man shall not say such an Inn or such Wine is not good Their progress extends to all Professions to say a man was not a good Surveyor has been held actionable The words spoken here have no more relation to the Plaintiffs Profession than to say of a Lawyer he hath a Red Nose or but a little Head to say one had the use of a Womans Body is a slander it being an ideom of speech for lying with
late Case and if this sicut debuit is not sufficient 't is laid further in the Declaration that he did not permit the Plaintiff to have the benefit of this Foldage But the Court held the Declaration insufficient for that there is no Authority in any Book of Law to shew that the word Faldagium did imply so much as was pretended on the Plaintiffs part Faldagium is to have Sheep folded in his ground as Falde cursus is a Sheep-walk or feed for his Sheep and if it be the usage in case of Foldage for the Owner of the Sheep to bring his Sheep to the Fold it ought to have been so set forth for the Court cannot take notice of the private usages of Countries and if the Faldagium did imply what the Plaintiff would have it then it should have been set forth that the Plaintiff had set up a Fold in the Land where the Sheep were to have been folded for he was to do the first act which must have been shewn if all the particulars had been set forth and sicut debuit is not enough here for the obscurity of the word Faldavit so that it doth not appear to the Court what ought to have been done on the Defendants part and to say non permisit Querentem habere beneficium Faldagii was not good without shewing how he disturbed him as 8 Co. in Francis Case Sed nota That was upon Demurrer but here 't is not said non permisit the Plaintiff habere Faldagium or non permisit eum faldare but non habere beneficium faldagii so that it was not certain what was meant for the Sheep might be folded and yet he might be deprived of the benefit of the foldage And the Chief Justice said here the Prescription is laid to have the Sheep going infra Communes Campos Territoria de Grancester to be folded and Territoria is a word unknown in the Law so no certainty in the Prescription Note Here a Prescription is laid in a Body Aggregate in a que Estate but that was held to be well enough because for a thing appurtenant to the Mannor Vide 2 Cro. 673. Kelw. 140. B. 1 Inst 121. a. But for the Reasons above mentioned the Iudgment was stayed by the Opinion of the whole Court George versus Butcher DEbt upon a Bond. The Defendant demands Oyer of the Condition which was to perform certain Articles of Agreement and the Defendant set forth the Articles made between the Defendant of the first part the Plaintiff of the second part and Rebecca Morse Widow Joseph Morse Samuel Morse John Morse Daniel Morse Nathaniel Morse Robert Morse and Thomas Morse Sons of the said Rebecca of the third part by which it was recited that a Marriage was intended between the Defendant Butcher and the said Rebecca by means whereof the Defendant would become possessed of her Personal Estate and in consideration thereof the Defendant covenanted by the said Articles inter al' having also recited that Robert Morse deceased Father of the said Joseph Morse Samuel Morse John Morse Daniel Morse Nathaniel Morse Robert Morse and Thomas Morse had by his Will bequeathed cuilibet ipsorum praed ' Josepho Samuel ' Johan ' Daniel ' Robert ' Tho' omitting Nathaniel the sum of 50 l with the Plaintiff that the said Defendant would pay praed ' Josepho Samuel ' Johan ' Nathaniel ' Robert ' Tho' praedict ' seperal ' legationes vel summas quinquaginta librat ' And the Defendant pleads further that he paid to the said Joseph Samuel John Daniel Robert and Thomas the said several sums of 50 l and shewed performance of all the other Articles And to this the Plaintiff demurred because that he did not shew that he paid 50 l to Nathaniel Morse and expresly covenanteth to pay to the said Nathaniel and the rest the said several Legacies or sums of 50 l Sed non allocatur for in the recital of the said Bequest by the Will there is nothing mentioned to have been bequeathed to Nathaniel and tho' he covenants to pay to Nathaniel as well as the rest yet it is legationes vel summas praed ' and there being no Legacy to Nathaniel and that appearing by the recital of the Will his Covenant shall not oblige the Defendant to pay him any thing Et sic Judicium ê“ Defendente Trethewy versus Ellesdon IN Replevin The Plaintiff declared of taking his Cattle in a place called the Barnclose in Branwell in the County of Cornwall The Defendant made Conusance as Bayliff of Elizabeth Cossen and shews that Nicholas Cossen was seised in Fee of a Messuage and Lands of which the place where was and is parcel and being so seised the 9th of September in the fourteenth year of the late King Charles the Second by his Deed indented produced in Court did grant to the said Elizabeth Cossen an annual Rent of 10 l to be issuing out of the Premisses to have to the said Elizabeth and her Assigns for term of her Life payable at the usual Feasts and in case it were arrear that it should be lawful for her to distrain by virtue whereof the said Elizabeth Cossen who is still living became seised of the Rent for her Life and avers that the usual Feasts are our Lady Midsummer Michaelmass and Christmass and for 40 l for four years Rent ending at Michaelmass 1688. the Defendant took the said Cattle as a Distress for the arreat of Rent c. The Plaintiff demanded Oyer of the Indenture which was read containing as followeth viz. This Indenture made the 29th day of September c. between Nicholas Cossen c. of the one part and Elizabeth Cossen c. and Nicholas Cossen the younger Son of the said Elizabeth of the other part of witnesseth That whereas the said Elizabeth Cossen hath given and surrendred into the hands of the said Nicholas Cossen one Indenture of Lease of an Annuity dated the 15th of March 1657. of ten pounds yearly going out of all that his Barton and Demesn called Melder for a term yet to come as in and by the said Indenture of Lease more fully and at large appeareth hath Given Granted and Confirmed and in and by these Presents doth Give Grant and Confirm unto the said Elizabeth Cossen her Heirs and Assigns by these Presents one Annuity or Yearly Rent of ten pounds to be issuing and going out of all that his Barton c. to Have Receive and take yearly the said Annuity to the said Elizabeth Cossen and Nicholas Cossen the younger and the Survivor and Survivors of them at the usual Feasts in the Year by equal Portions and if it shall happen the said Yearly Rent to be behind after any of the said Feasts that then it shall and may be lawful to and for the said Elizabeth during her Natural Life and so the said Nicholas Cossen the younger after her Death to enter into the Premisses and distrain c. In Witness whereof
non habet nec per legem terrae tenetur aliquo modo respondere Et hoc parat ' est verificare Unde pro defectu sufficien ' replicaconis in hac parte Idem Samuel ut prius pet ' Judicium Et quod praedict ' Juditha ab accone sua praed ' habend ' praecludatur c. Et praedict ' Juditha ex quo ipsa sufficien ' Joynder in Demurrer materiam in lege ad acconem suam praedict ' versus praefat ' Samuel ' habend ' manutenend ' superius replicando allegavit quam ipsa parat ' est verificare Quam quidem materiam idem Samuel non dedic ' nec ad eam aliqualit ' respond ' sed verificacon ' ill ' admittere omnino recusat ut prius pet ' Judicium debitum suum praedict ' unacum dampnis suis occone detenconis debiti ill ' sibi adjudicari c. Et quia Justic ' hic se advisare volunt de super praemissis priusquam Judicium inde reddant dies dat' est partibus praedict ' hic usque à die Paschae in quindecim dies de audiendo inde Judicio eo quod iidem Justic ' hic inde nondum c. Judith Hanson versus Liversedge IN an Action of Debt upon a Bond the Condition was to perform the Award of two Arbitrators in Writing or by word of Mouth The Defendant pleaded Nullum fecerunt arbitrium The Plaintiff replies That at the time of the Bond and Award she had an Action against the Defendant for scandalous Words and that the Arbitrator did make declare and publish their Award in manner and form following viz. That the Defendant should pay to the Plaintiff 12 Guinea's and all such Moneys as she had expended circa prosecutionem placiti praedict ' and that the parties should give mutual Releases of all Matters to the Date of the said Bond and saith that she laid out in the said Suit 11 l 7 s and demanded the said Sums of Money of the Defendant and protestando that the Defendant had not paid her the 11 l 7 s dicit in facto that he had not paid the 12 Guinea's awarded as aforesaid hoc parat ' est verificare c. To this the Defendant Demurred And Pemberton for the Defendant said First This Award as set forth appears to be void for 't is to pay the Charges expended circa placit ' praed ' and the Award doth not mention any Suit before and tho' the Plaintiff in her Inducement saith That she had an Action for Words against the Defendant then depending that will not help it for that is no part of the Award but the Award in the Form as 't is set forth is unintelligible there being no Suit mentioned before to refer placit ' praedict ' unto Secondly 'T is not sufficient to Award payment of the Charges in such a Suit it being altogether uncertain what the Sum will amount to Thirdly It ought to have been shewn that the Plaintiff had a Cause of Action in the Action that is mentioned to have been brought against the Defendant for Slander and so is Spigurnell's Case in Siderfin 1st Part 12. Curia As to the first if the Award were in Writing in such form of Expression it could not be good but he which sets forth an Award by Parol is not tyed to the words for the precise words might be very difficult to prove but 't is sufficient to shew the effect and substance of what was awarded by Word of Mouth and 't is sufficiently shew that this Award was made concerning that Action of Slander For the Second the Court held that the Award was good for it may be easily reduced to a Certainty when 't is made appear what was laid out in that Suit as in 1 Roll. Abr. 251. Beale and Beale and in the 3 Cro. 383. to pay the Charges of such a Voyage held a good Award Thirdly The Plaintiff need not shew that there was Cause of Action for that is left to the Arbitrators and they have power to award Charges thereupon tho' in point of Law there were no Cause of Action for the Parties have made the Arbitrators their Judges And the Court were not satisfied with the Opinion Reported by Syderfin in Spigurnell's Case and said he was then a young Reporter Whereupon Judicium pro Quer ' Major probi homines de Guldeford versus Clarke Surr ' ss JOHANNES CLARKE nuper de Guldeford ' Debt upon a By Law made by a Corporation by Prescription in Com' praedict ' Dyer Sum ' fuit ad respondend ' Majori probis hominibus Villae de Guldeford ' in Com' Surr ' de placito quod reddat eis viginti libras legalis monet ' Angl ' quas eis debet injuste detinet c. Et unde inde iidem Major probi homines Villae de Guldeford ' praed ' per Henr ' Dyve Attorn ' suum dic ' quod cum praedict ' Villa de Guldeford ' in dicto Com' Surr ' est antiqua Villa quodque probi homines ejusdem Villae à tempore cujus contrarij memoria hominum non existit fuer ' Antiqua Villa adhuc existunt corpus Corporat ' Politicum in re facto nomine per nomen Majoris proborum homin ' Villae de Guldeford ' in Com' Surr ' A Corporation time out of Mind To implead and be impleaded per idem nomen usi fuer ' placitare implacitari respondere responderi Cumque etiam infra Vill ' ill ' habetur à toto tempore supradict ' cujus contrar ' memoria hom ' non existit habebatur talis consuetudo usitat ' approbat ' quod Major probi homines Villae praedict ' pro tempore existen ' vel major pars eorundem in Com' A Custom to make By-Laws Concil ' congregat ' assemblat ' usi fuer ' consuever ' facere constituere leges constitucones pro bono regimine gubernacone Villae praed ' inhabitan ' ejusdem poenas poenalitat ' For good Government of the Corporation And to impose Penalties Custom to elect a Bayliff Annually super personas contra leges constitucones ill ' delinquen ' imponere Cumque etiam infra Villam praedict ' fuit antiquus Officiarius annuatim quolibet anno super diem Lunae prox ' post Festum Sancti Michaelis Archi ' pro uno anno tunc sequen ' per Majorem probos homines praed ' elect ' vocat ' Balliv ' ejusdem Villae ad negotia ejusdem Villae peragend ' Cumque etiam praed ' Major probi homines Villae praed ' The By-Law set forth secundo die Octobris anno regni domini Caroli secundi nuper Regis Angl ' c. tricesimo quarto apud Vill ' de Guldeford praedict ' in Com' Consilio adtunc ibidem congregat ' assemblat '
the use of my only Son William Whitmore and his Heirs lawfully desscended from his Body and for the use of the Issue Male and Issue Female discended from the Body of my Sister Elizabeth Weld deceased Margaret Kemes and Anne Robinson in case that my only Son William Whitmore should decease in his Minority without Issue lawfully descended from his Body I nominate and appoint my only Son William Whitmore Executor of my last Will and Testament I nominate and appoint the Right Honourable William Earl of Craven during the Minority of my only Son William Whitmore Executor of my last Will and Testament I commit the Education and Tuition of my only Son William Whitmore unto the Care of the Right Honourable the Earl of Craven On the 5th of August 1678 the Testator died his Son being then about the Age of 13 years The Earl of Craven proved the Will William Whitmore the Son made his Will in Writing and thereby Devised to Frances his Wife all his Estate real and personal and makes her sole Executrix and about the 2d of August died without Issue being above the Age of 18 years and under the Age of 21 years not having proved his Father's Will The Will of William Whitmore the elder is duly proved by Frances The Question was Whether Frances Whitmore the Executrix of William Whitmore the Son be well Entituled to the surplusage of the Personal Estate of William Whitmore the Father or the Discendants of the Sisters Vpon hearing of this Cause a Case was made ut ante and referred by the late Lord Keeper North to the Judges of the Common Pleas who were divided in Opinion but made no Certificate thereof the Reference being determined by his Death And afterwards by Order it came to be heard before the Lord Chancellor Jefferies who upon Hearing of the Counsel of both sides Decreed it for Frances Whitmore the Complainant for that the Executorship of my Lord Craven determined at the Age of 17 years of William Whitmore the Son and then the Surplusage became an Interest vested in him and could not be devised over And his Lordship seemed to be of Opinion That Minority in the Clause wherein the Devise over was should be understood to determine at the same time as in the Clause of Executorship A TABLE OF THE Principal Points Argued and Resolved in the SECOND PART OF THESE REPORTS A Acceptance See Surrender Action TORTS in their Nature are several so one Defendant of many may be found Guilty and the other Not guilty but 't is not so in Actions grounded upon Contracts p. 151 Action upon the Case See Assumpsit Outlawry Action lies against the Mayor of London for not granting a Poll upon a double Election 25 The Law gives an Action for but a possibility of Damage as for calling an Heir apparent Bastard c. 26 27 Where an Officer does any thing against or refuses to do the Duty of his place whereby Damage accrues to the party Action lies 26 But it lies not against a Lord of a Mannor for refusing to admit a Copyholder 27 Against a Common Carryer for losing Goods delivered and Carriage paid for 78 Against Bayliffs for levying Money by pretence of a Fieri facias 93 For not Folding his Sheep upon the Plaintiffs Land whereby the Plaintiff lost the benefit of Foldage 138 For the Profit of an Office not necessary to shew every particular Sum received by the Defendant But it is a good Evidence for Damage to shew the Profit of the Office Communibus Annis 171 In an Action for not Grinding at his Mill what shall be a sufficient Setting forth of the Custom 292 Action upon the Case for Slander Writ in a Letter of a Lawyer He will give Vexations and ill Counsel and stir up a Suit and milk your Purse and fill his own large Pockets Actionable 28 Anciently no Action for Words unless the Slander concerned Life ibid. Of one who had been a Member of Parliament Your Master is a Papist when he is at home he goes to Church but when he is at London he goos to Mass Sir J.C. and he were both Pensioners at the time of the Long Parliament Actionable 265 To say of a Man that had been in an Office that he had behaved himself corruptly in it Actionable 266 Administration In an Action against an Administrator it is necessary to set forth that Administration was committed to him tho' not to say by whom 84 Administrator shall be charged for Rent after the Assignment of the Testator's Term 209 Admiralty Marriners as well Officers as Common Seamen may sue for Wages in the Court of Admiralty and some only may sue there as well as when all joyn 181 If the Suit be there against some of the Part-owners the Course is not to charge them with the whole but according to their proportionable parts ibid. Advowson Presentation by Turns among Parceners whether an Usurpation in a Turn puts all out of Possession or only one 39 Age. See Devise Executor Amendment See Distress Scire facias Writs Habere facias instead of Liberari facias and inquirat instead of inquirant amendable upon Motion because in a Judicial Writ 171 Arbitrament Award See Vmpire No place mention'd where the Award was made naught 72 Whether Arbitrators having Power to name an Umpire may name a second if the first refuses 114 Submissions to Awards favourably construed because they tend to the end of Controversies 115 Where an Award that seems all on one side may be good 222 Award may be by Word of Mouth and he which sets forth such Parol Award is not tyed to strictness of Words but 't is sufficient to shew the effect and substance of what was Awarded 242 Award to pay the Charges of a Suit good tho' the Sum is uncertain for it may be easily reduced to certainty 243 Where Money is awarded to be paid to J. S. and no mention made of his Executors yet in case that he dies before the Money shall be paid to his Executors for an Award creates a Duty and the Executor shall release where the Testator was awarded so to do 249 Assent See Executor Assent of a Purchaser vest the Estate in him tho' he cannot have an Action of Trespass before Entry 205 Assigns Where a man covenants for himself and his Assigns to permit if a Breach be laid in the Assigns this Covenant shall relate only to the Assigns after the Deed was made and not before 278 Assumpsit J. S. being indebted to the Plaintiff and the Defendant to J. S. the Defendant promises that if he would procure an Order from J. S. he would pay him Action good after the Order procured 71 74 If Four be sued in an Assumpsit and they plead Non assumpsit infra sex annos and the Jury find that one did assume infra sex annos but not the rest the Plaintiff cannot have Judgment 151 Indebitatus Assumpsit brought for Money won at a Play called
Wingate and Stanton the Bail of William Stanton 38 Wise 's Case 69 Wood v. Coat 195 Woodward v. Aston 296 Wortley the Lady v. Holt 31 Wright v. Johnson 64 Z ZOuch v. Clay 185 ADVERTISEMENT Note That the Author of these Reports has referr'd to Croke's Elizabeth as the first Part and Croke's Charles as the third Part of those Reports except in the first thirty Sheets of the First Volume in which thirty Sheets he referr'd to Croke's Charles of the first Edition as the first Part and Croke's Elizabeth as the third Part of those Reports TERMINO Sancti Michaelis Anno 20 Car. II. in Banco Regis Sparks c. versus Martyn JONES moved for a Prohibition to the Court of the Admiralty for that they Libelled against one for Rescuing of a Ship and taking away the Sails of it from one that was executing the Process of the Court against the said Ship and for that in the presence of the Iudge and face of the Court he Assaulted and Beat one and spake many opprobious Words against him Now seeing that these Matters were determinable at Law the Ship being infra corpus Comitatus and they could not adjudge Damages to the party or Fine or Imprison He prayed a Prohibition But the Court denied it absentibus Windham Moreton 1 Cro. 216. For they may punish one that resists the Process of their Court and may Fine and Imprison for a Contempt to their Court acteâ— in the face of it tho' they are no Court of Record but if they should proceed to give the party Damages they would grant a Prohibition quoad that And of that Opinion was Wyndham the Case being afterwards put to him by the Chief Justice But the parties afterwards put into their Suggestion That the original Cause upon which the Process was grounded was a Matter whereof the Court of Admiralty had no cognisance Wherefore a Prohibition was granted For then the Rescous could be no Contempt Sir John How versus Woolley an Attorney of the Court. IT was Moved That Woolley should put in special Bail being an Attorney at large and having dicontinued his Practice But the Court said Attorneys at Large have the same priviledge with the Clerks of the Court and are to appear de die in diem And they were not satisfied that he had discontinued his Practice Suffil's Case IT was Moved to quash the Return of a Rescous against Suffil and divers others who rescued a person taken upon Mesne Process because the Rescuers being particularly named 'tis said rescusserunt and not added quilibet corum rescussit And for that Case was cited in the 2 Cro. where the Sheriff returns an Exigent against divers quod non comperuerunt upon the Quinto exacti and doth not add nec aliquis corum comperuit and for that cause it was Reversed in a Writ of Error notwithstanding Twisden being only in Court held it to be well enough it being in the Affirmative Anonymus A Prohibition was prayed to the Ecclesiastical Court for that a Parson Libelled against one there for talking of him Knave and 't was granted it not appearing to relate to any thing concerning his Function And a Case was cited to be Adjudged 24 of the Queen the Suit being in the Ecclesiastical Court for these words viz. Sir Priest you are a Knave and a Prohibition was granted Note If a man be taken in Execution he cannot be bailed tho' he brings a Writ of Error Anonymous IN Debt upon a Lease for years the Defendant may plead Entry into part upon which follows Suspension and it doth not amount to the General Issue Heely versus Ward ERror to Reverse a Iudgment given in the Court at Hull where the Plaintiff in an Assumpsit did declare That at such a place infra Jurisdictionem Curiae the Defendant in consideration that the Plaintiff had assumed to pay him so much a yard promised to deliver him so many yards of Kersey and it was assigned for Error That the delivery is not laid to be at a place infra Jurisdictionem Curiae and indeed there is no place at all And of that Opinion was Twisden he being only in Court and cited a Case where in an Assumpsit in the Marshalsey upon a Promise to make a Lease of a House in Middle Row and after Iudgment it was held Erroneous because Middle Row was not laid to be infra Jurisdictionem Curiae The Bishop of Lincoln versus Smith THe Bishop of Lincoln sued in the Court holden before his Chancellor for a Pension to which he intituled himself by Prescription and a Prohibition was prayed for Smith the Defendant there for that being by Prescription that Court had no cognisance of it And for that my Lord Coke's Opinion was cited 2 Inst 491. especially he could not sue for it in his own Court But it was resolved by Keeling and Twisden the other Iustices being absent that Pensions tho' they were by Prescription might be sued for in that Court for having cognisance of the Principal that shall draw in the Accessory As if one Libel for a Modus decimandi if they allow it they may try it and Coke's Opinion they said was not warranted by the Books and Fitzh N.B. 524. is against it 2 Cro. 483. and the Court being held before the Chancellor and not the Bishop himself he might sue there Vide Hob. 87. Conusans of Pleas granted to be holden before the Steward of the Grantee licet the Grantee fuerit pars Anonymus AN Attachment was prayed against one who being arrested upon a Latitat gave a Warrant of Attorney to Confess a Judgment and presently after snatched it out of his hand to whom it was delivered and tore off the Seal And the Court seemed to incline in regard it was to Confess a Judgment in this Court that it was a Contempt upon which an Attachment might be granted Anonymus A Prohibition was prayed to stay a Suit in the Court Christian for Tythes upon the suggestion of a Modus which was alledged in this manner That the Proprietors and Occupiers of such a Mannor or any parcel thereof should pay a Groat to the Parson for Herbage Tythes The Court held his this could not be for if a man had but two or three Foot of Ground in the Mannor he should pay a Groat but it ought to have been laid That the Proprietors and Occupiers of such a Mannor for themselves and their Farmers had paid Four pence Twisleton versus Hobbs ACtion for these Words You are a Forger of Bonds a Publisher of Forgery and Sue upon forged Bonds The Iury found the Defendant Not Guilty as to the first Words and resolved the last Words were not Actionable if not being laid that he knew of the Forgery Sir Thomas Griesley's Case INformation against him for stopping the High-way the word was Obstupabat It was proved in Evidence that he plowed it up and Resolved it did well maintain the Information Anonymus IN Debt If
B. for causing to be framed printed and published a Scandalous Libel Entituled c. thereby scandilizing of one C. D. Vpon Not guilty pleaded It appeared upon the Evidence that after the discovery of the Libel there were Warrants from the Lord Arlington Principal Secretary of State to search the Lodgings of the Defendant who was suspected to be the contriver of it where were found two of these Libels printed The Opinion of the Court was That this was no Crime within the Information though he gave no account how they came there 5 Co. 125. B. and the having of a Libel and not delivering of it to a Magistrate was only punishable in the Sarchamber unless the Party maliciously published it Anonymus Hob. 192 300 301. IF the Jury upon an Issue joyned in a Prohibition upon a Modus Decimandi find a different Modus yet the Defendant shall not have a Consultation for it appears he ought not to Sue for Tythes in Specie there being a Modus found Termino Sanctae Trinitatis Anno 21 Car. II. In Banco Regis Jurado versus Gregory THe Case was this There was a Contract of Malaga concerning the Lading of a Ship and for breach of this which was laid to upon be the Sea viz. That he would not receive 40 Butts of Wine into the Ship according to the Agreement there was a Libel in a Foreign Admiralty and Sentence that the Wine should be received into the Ship which being refused another Libel was commenced in the Admiralty here in England Reciting the former Sentence and charging the Defendant with the breach of it and a Prohibition was prayed because it appears the Contract was made upon the Land Vid. Latch 234. Against which it was objected by Finch Solicitor that where Sentence is obtained in a Foreign Admiralty one may Libel for Execution thereof here because all the Courts of Admiralty in Europe are governed by the Civil Law and are to be assistant one to another though the matter were not Originally determinable in our Court of Admiralty and for this he cited a Judgment 5 Jac. Rolls Tit. Courts Sect admiralty And this the Court agreed But here was no compleat Sentence in the Foreign Admiralty but only an Award that the Wine should be received and now for breach thereof he Sues here which is in the nature of an Original Suit and to have Execution of the Sentence and this ought not to be though the breach were at Sea it being of a Contract made upon the Land wherefore they granted a Prohibition The King Grants bona catalla felonum the Grantée shall not have Felons Debts nor bona catalla Felonum de se Anonymus A Conviction was certified of one for carrying of a Gun not being qualified according to the Statute where the words in the Statute are Upon due Examination and proof before a Justice of the Peace The Court resolved That that was not intended by Jury but by Witnesses and no Writ of Error lies upon such Conviction And an Exception was taken because it was before such an one Iustice of the Peace without adding Nec non ad diversas Felonias Transgressiones c. audiend assign ' And the Court agreed so it ought to be in Returns upon Certiorari's to remove Indictments taken at Sessions But otherwise of Convictions of this nature for 't is known to the Court that the Statute gives them Authority in this Case The King versus Benson IN an Information against him for Extortion an Issue was joyned the day the Jury were returned and the King sent a Writing under his Sign manual to Sir Thomas Fanshaw Clerk of the Crown to enter a Cesser of Prosecution And Palmer Attorney General affirmed that the King might stay proceedings yet notwithstanding the Court proceeded to swear the Jury and said they were not to delay for the great or little Seal whereupon the Attorney entred a Noli prosequi Anonymus TRover against Baron and Feme and laid quod ad usum proprium converterunt and it was alledged proprium might be applied only to the Husband so also if it had been ad usum suum But the Court held neither had been good so it was prayed that Judgment might be entred quod Querens nihil capiat per billam For if it had been quod Defendens eat inde sine die the Plaintiff could not have brought an Action de novo Note A man is Outlawed in Middlesex A Capias utlagatum may be sued out against him into any other County without a Testatum Anonymus IN Trespass the Defendant justifies by reason of Common in the place where for Cattel Levant and Couchant upon his Land and doth not aver the Beasts were Levant and Couchant This is aided after a Verdict A Judgment in Debt is had in the Kings Bench and a Writ of Error is brought it still remains a Record of the Kings Bench and an Action of Debt may be brought upon the Judgment In a Writ of Error if the Defendant dyed the Writ is not abated Otherwise if the Plaintiff die And the Secondary informed the Court of a Case betwéen Sir H. Thyn and Corie where a Scire facias ad audiend Errores went against the Executors when the Defendant in the Writ of Error dyed Note The Exchequer Chamber doth not award a Scire facias ad audiend Errores but notice is given to the Parties concerned Skirr and Sikes IN Trespass upon the Stat. of 8 H. 6. the Plaintiff had Iudgment It was moved whether a Writ of Error would lie of this into the Exchequer Chamber For though Trespass be one of the seven Cases where the Statute gives it yet it might intend Common Trespasses only and not where the Action is founded upon a Statute as Actio de Scandalis Magnatum is not within the Statute And the Court would advise Cabell and Vaughan 5 Co. Whelphdales Case He cannot plead non est factum IN an Action of Debt upon a Bond against one and it appears another was joyntly bound with him wherefore the Defendant Demurrs But it was adjuged for the Plaintiff for the Defendant cannot Demurr in such case unless the other Obligor be averred to be living and also that he sealed and delivered the Bond 3 Cro. 494 544. Ascue and Hollingworth's Case 28 H. 6. 3. And if one be bound to two one Obligee cannot Sue unless he Averrs the other is dead In B.R. 1651 1068. Levit Staneforth Perries Case IN an Information of Forgery against him there was a Mis-trial And it was moved That this was aided by the Statute of 21 Jac. the general Purview whereof is extended to any Action Suit Bill or Plaint Then there is a Proviso which excepts Indictments and Informations upon Penal Statutes and this being an Information at Common Law was not within the Proviso and it may be taken within the word Suit for it is Secta Domini Regis But the Court held it not
remedied either by the words or intention of the Act. Vid. Ante. Nokes and Stokes versus .... THey two brought an Action of Debt upon a Bond. The Defendant pleads the Release of one of the Plaintiffs They pray Oyer of the Release which was of all Actions Suits c. that he had against the Defendant upon his own account and pleads that this Bond was not upon his own account and upon this Issue is taken and found for the Plaintiff Now it was moved in Arrest of Judgment That this Issue was frivolous And upon the whole matter it appears that the Plaintiffs have no cause of Action for the Release of one Obligée dischargeth the Bond and it must be upon his own account But the Court Seriatim delivered their Opinions for the Plaintiffs for he might take this Bond as a security of a Debt with which he was intrusted for another And the truth of the case upon the Evidence was That the Defendant being charged with the payment of divers Legacies to Strangers was requested by one of the Plaintiffs to enter into Bond to him and the other Plaintiff who afterwards made the Release that should be Conditioned for the payment of the Money Bequeathed to the Obligees to the use of the Strangers which not being done the Defendant was Arrested at the Suit of the Plaintiffs this being made known to the Plaintiff who was absent at the taking of the Bond and knowing nothing of the Suit was contented to Release all Actions he had against the Defendant upon his own account King versus Atkins DEbt upon a Bond of 2000 l The Defendant demands Oyer of the Condition which was That whereas the Plaintiff was bound with the Defendant to the King that the Defendant should give a true account of such Moneys as he should receive for the Excise and Chimney Money And that the Defendant should save him harmless from all Payments or Suits upon that Bond and pleads that no Suits Process or Execution was against the Plaintiff upon that Bond issint he saved him harmless The Plaintiff replies a Scire facias issued against him out of the Exchequer upon the Bond and that he was forced to retain an Attorney and that he paid 1 s for his Appearance To this the Defendant Demurrs Because he did not alledge that he gave him notice And this was said not to be like Broughtons Case 5 Co. For there the Defendant knew the Money was to be paid at the day and it was to save him harmless from the single thing but here from a great many so that it was requisite he should have notice Where the Mesne is bound to acquit the Tenant the Tenant shall not recover Damages unless he gives the Mesne notice that he is distrained so that he may Replevy the Beasts But it was said That no notice ought to be given where the thing is an Act of a third person as to pay Money when J. S. comes into England To which it was answered That did not lie in the Conusance of either Party but this was in the notice of the Obligée But that which séemed most against the Demurrer in this case was That the Defendant having pleaded no Process c. he takes upon him the knowledge of it Vid. 1 Cro. 54. And if in the Replication the Plaintiff had alledged notice and the Defendant had Traversed it it would have been a departure and the Court advised until the next Term. Postea Welsh versus Bell. TRespass quare clausum fregit and taking of two Horses out of his Cart The Defendant justifies the taking of them as a Distress for Rent due to him And to this the Plaintiff Demurrs First He could not sever the Horses but ought to have distreined Cart and all according to the Book of 20 Edw. 4. 3. Distress of a Cart loaden with Corn Rolls 270. 3 Cro. 783. and four Horses in it adjudged not excessive because he could not sever the Horses And in 3 Cro. 7. a Difference is taken between Distress for Rent and Damage Feasant to this purpose And the common ground is that a Distress must be taken so as it may be returned in the same plight 1 Inst 47. a. Secondly It appeared also in the Declaration That there was a Servant of the Plaintiffs in the Cart by reason of which it was alledged that the Cart and Horses were priviledged for a Horse cannot be distrained upon which a Man is Riding 3 Cro. 549 596. Ed Adjornatur Twisden cited a Case adjudged before Rolls Chief Justice in Trespass for taking of his Trunk The Case was the Defendant distrained it for Rent and being Informed that there were things of Value in it he caused it to be Corded to prevent damage And for that he was adjudged a Trespasser ab initio Anonymus AN Action on the Case was brought against the Defendant for taking and keeping of the Plaintiffs Wife from him And upon Issue joyned the Court was moved to defer the Trial the Case being that the Wife was Daughter of the Defendant and taken from him by the Plaintiff without his Consent and as the Plaintiff affirmed Married to him Now this Marriage was questioned in the Court Christian And the Court thought it reasonable that the Trial should be delayed until the Marriage was determined there But they were Informed on the other side that the Court were ready to give Sentence That the Marriage was good and the Defendant had Appealed Wherefore they thought fit that the Trial of the Cause should proceed The King versus Nelson AN Order for the keeping of a Bastard Child being removed by Certiorari it was moved to have it quashed because it was ad Sessionem pacis in Com' praed ' and doth not say Tent ' pro ' Com' praedict ' Sed non allocatur For such strictness is not required in an Order But Twisden said it ought to be so in an Indictment It was further alledged that it ought to appear That the Child was likely to be chargeable to the Parish which was agreed But that was sufficiently set forth in the Order for upon Reading of it it appeared that he was ordered to pay such Charges as the Parish had been at Wherefore the Court confirmed the Order and awarded that he should pay such Costs as the Parish had been at for Contesting of it as was done formerly in one Haslefoot's Case And besides the Court Committed Nelson Anonymus DEbt upon a Bond Conditioned to perform Covenants If the Defendant pleads performance without demanding Oyer of the Indenture it is a good cause of Demurrer Anonymus IN Covenant the Plaintiff declares That he let the Defendant a House and that he Covenanted to Repair it The Defendant pleads That it was sufficiently Repaired before the Action brought The Plaintiff Demurs because he doth not plead That he Repaired it for it may be the Plaintiff himself did it Keeling and Raynsford inclined against the Demurrer because
Covenant the Plaintiff declared That the Defendant demised to him a House with the use of a Pump and that he suffered it to be so out of Repair that it became Useless To this Declaration the Defendant demurs and Counsel being heard on either side divers times the Court delivered their Opinions severally Keeling Rainsford and Moreton held that the Action did lye the Use of the Pump being part of the things demised which Words make a Covenant as in 4 Co. Noke's Case and in 5 Co. Spencer's Case If a man let an House together with Estovers to be taken in the Wood of the Lessor and afterwards the Wood is stubbed up there Covenant lies for the Lessee And Rainsford put this Case If a mans Lets the Middle Rooms of his House to one and the Vpper to another and lets the Roof of the House decay he conceived Covenant would lie for the Lessee of the middle Rooms And if a Parson makes a Lease and then Resigns he is liable to Covenant as in 12 H. 4. And the Lessee would be at a mischief for he should be a Trespasser to Enter and Repair and if the Lessor ousts the Lessee of any of the things demised 't is clear the Covenant lies and this is as much an ouster as can be in this case where the Lessor is possessed himself And so Iudgment was given for the Plaintiff against the Opinion of Twisden who held strongly to the contrary for he said he might have an Action upon the Case and so remedy for his Damage Also he held clearly That he might Enter and Repair as if one Licence another to lay Pipes in his Ground to convey Water he may justifie an Entry to Repair the Pipes And he cited a Case adjudged in 9 Jac. where one by Licence erected a Cock of Hay in anothers Ground And it was held That the Owner of the Soil might put in his Beasts into that Ground but he that had the Licence might by vertue of that Licence also fence in his Hay Quando aliquid conceditur conceditur id sine quo res ipsa uti non potest and he said that he never met with a Case where Covenant would lie but upon an actual ouster either by a Stranger that hath eigne Title or the Lessor himself And this was a non feasans and in that he differenced it from the Case of Estovers being an actual Tort to stub the Wood up and in Covenant upon an ouster of a Term if it be not incurred Iudgment shall be to recover the Term it self as F. N. B. 145. which cannot be in this Case for the Sheriff cannot put him into possession of the use of the Pump neither is it fit that he should recover Damages for all the Term for it may be the Pump will be presently repaired And he conceived that if the Lessor Cuts down Trées growing upon the Land Demised no Covenant lies yet the Trees are Demised with the rest Ante. Anonymus A Draws a Bill upon B. to the use of C. and Vpon Non-payment C. Protests the Bill he cannot Sue A. unless he gives him notice that the Bill is Protested for A. may have the Effects of B. in his Hands by which he may satisfie himself Note It was said if an Action to recover Lands of which a Fine was Levied were brought and discontinued by the Demandant this would not amount to a Claim Glyn versus Smith A Scire facias upon a Record in the Kings Bench where the Action is brought by Original must alledge a place where the Court was holden because 't is Ambulatory and the Writs returnable there are coram nobis ubicunque tunc fuerimus in Angliâ But it is otherwise upon Records in the Common Pleas for that is confined to a certain place by Magna Charta Anonymus IT was moved to quash a Return of a Rescous because it was Mandavi Ballivis who took him virtute Warr ' praed ' And it was said Mandavi did not imply that it was in Writing But the Exception was disallowed by the Court. Anonymus IF the Party that brings an Audita Querela be out of Prison the Court will Bail him though grounded upon a surmise of a matter of Fact as payment c. But if he be in Prison not unless there be a Specialty Parries Case DIvers Deeds and Evidences were shewn to Counsel for his Opinion of the Title to certain Lands which were to be sold He delivers them to one Parry a Scrivener by the consent of the Parties Parry finding a Deed to concern the interest of a third person gives it to him and upon complaint to the Court they commanded him to produce the Deed that it might be delivered back again to the Parties they conceiving it an abuse in his practice which was under the Regulation of this Court Anonymus IN Replevin in the Court at Canterbury the Defendant avowed for Rent Afterward this was removed by the Plaintiff into the Kings-Bench and the Defendant prayed a Procedendo because Canterbury was a County of it self and no Assizes there and so the Cause could not be tried But the Court denied it saying it was their own fault that they had not the Assizes there and every Subject had the liberty of removing his Suit into a Superiour Court Twisden said He had formerly known it to be denied in an Ejectment Girlington versus Pitfield IN an Action upon the Case for malitiously prosecuting of an Indictment of Perjury against him of which he was acquitted upon Not guilty pleaded it appeared upon the Evidence that the Defendant was a Justice of the Peace and procured some as Witnesses to appear against him and his own name was endorsed upon the Indictment to give Evidence The Court agreed that this did not make him a Prosecutor for if a Iustice of the Peace knows any person that can give Evidence against one that is indicted he ought to cause him to do it But it was proved on the Defendant's side That this Indictment was drawn up by an Order of the Sessions Wherefore Keeling Chief Justice said That the Plaintiff deserved to be bound to his Good Behaviour for bringing of this Action Horne versus Ivie IN Trespass for taking of a Ship and Sails the Defendant justified by a command from the Governours and Society of the Trade into the Canaries who were Incorporated by that name and had the sole Trade granted to them with a Forfeiture of all such Goods as should be imported hither from thence by any person not of their Company and that the Ship of the Plaintiff brought Goods from thence To this the Plaintiff Demurred His Counsel did not much insist upon the validity of the Patent because it was a Monopoly though it was said to be also against divers Statutes to Prohibit Merchants frèe trading to forein parts as 9 E. 3. cap. 1. 25 Ed. 3. cap. 2. 11 R. 2. cap. 7 and that there could grow no Forfeiture of
And Doderidge gives the Reason That the Party by his words hath abridged what otherwise the Law would make and so it is held in Bland and Inmans Case 3 Cro. 288. where a Man possessed of a Term for a 100 years did joyn in a Lease with his Wife solvendo so much Rent during the Term to him and his Wife and the Survivor of them that the Executors should not have this Rent Hunt contra In the Reservation of a Rent there is no need of words of Limitation If the words are Yeilding and Paying Generally without saying to whom it is a good Reservation to all those to whom the Reversion shall come so if two Joynt-tenants reserve a Rent generally it is good to both Here are sufficient words to declare the intent that the Rent should continue and then they shall not be restrained by any affirmative words after and where Executors Administrators and Assigns are named that shall be taken as an Enumeration of some particulars without any intent to exclude others as where a man made one his Executor of all his Corn and moveable Goods this gave him an Interest as Executor in all his Chattels as well as in those which were named 3 Cro. 292. Rose and Barlett's Case 8 Co. Whitlock's Case If the Reservation be to such persons to whom the Reversion shall come this is good to the Heir and all others If a Lease be made excepting a Chamber to the Lessor this remains excepted after the death of the Lessor 7 H. 8. 19. Hale If this were res integra it might be a strong Case for the Plaintiff but the Authorities go the other way Sed Adjornatur Vide postea Termino Sancti Michaelis Anno 23 Car. II. In Banco Regis Dorrel versus Jay THe Plaintiff declared that Communication being between J.S. and the Defendant of the last Will of John Rowe Esquire deceased that the Defendant said of the Plaintiff He hath forged his Uncle Rowes Will. After Verdict for the Plaintiff it was moved by Serjeant Ellis in Arrest of Judgment that it is not averred that John Rowe was dead at the time of the speaking of the words Sed non allocatur For it is said there was a discourse of the Will of John Row Esquire defuncti and there defuncti goeth to the description of his person and expresseth that he was then dead and not only when the Action was brought Besides the words imply it for if he were not dead he could not forge his Will Vid. ante Phillips and Kingston's Case Pasch 23 Car. The Case of St. Katherines Hospital THe Case as it appeared upon the Evidence at a Trial at Bar in Ejectment for part of the Lands of the Hospital between the Lessee of Sir Robert Atkins the Queens Solicitor and George Mountague Esquire was this Elianor Queen Dowager of Henry the Third in the year 1273. Founded or at least amply Endowed this Hospital reserving to her self during her Life Reginis Angliae nobis succedentibus the Nomination of the Master to this Hospital which was Incorporated and her Grants to it confirmed by the King's Letters Patents In the Year 1660 Henrietta Maria Queen Mother granted the Mastership of this Hospital to H. Mountague for Life and the King in the same year reciting his Mothers Grant and that the Right of it belonged unto her Confirmed it by his Letters Patents and did further by the same Letters Patents grant unto the said H.M. the said Mastership Afterwards the King married Katherine the now Queen Consort and she granted the Mastership to Sir Robert Atkyns for his Life It was urged on the part of the Plaintiff that the Right of appointing the Master was only in the Queen Consort for Queen Elianor reserved it to her self and her Successors Queens of England and Queen of England is not Queen Dowager but Queen Consort And tho' Land cannot be limited to discend in such manner without Act of Parliament as is Resolved in the Prince's Case in 8 Co. yet such a Desultory Inheritance as this was called may be created of a thing de novo As a Rent may be granted and appointed to cease during the Minority of the Heir or upon the first Foundation of a Church the Patronage may be reserved to A. and if he Presents not within four Months then to B. So in the Book of E. 3. it was limited that the Chapter should present while the Deanry was vacant And to prove that this Clause had been construed only to intend the Queen Consort a Record was shewn of a Case between Luttishall and Basse in 4 E. 3. Where Luttishall exhibited a Petition to the King which was Intituled To our Lord the King and his Counsel Which Petition was sent into the Kings-Bench under the Great Seal in which Luttishall sets forth That Queen Isabel Mother to Edward the Third had granted him the Mastership of the Hospital for his Life and that he was disturbed by Basse and Process was issued out against Basse who appeared and pleaded a Grant from Queen Philip. Wife to Edward the Third and a Writ came from the King reciting That the Nomination of the Master did belong to Queen Isabel And so three Writs more came after to the same purpose and expressing that the Matter was delayed ad inestimabile damnum Consortis nostrae And in that Record Isabel tho' living is styled nuper Regina and Luttishall that claimed under her was barred On the other side Divers Grants were produced during the time that there were no Queens by the King and sometimes by a Queen Dowager during the time that there was a Queen Consort And these Points following were agreed by all the Court First That an Inheritance might be limited in this manner in a thing de novo Secondly That this Reservation being to Queen Elianor and her Successors Queens of England did not exclude Queen Dowagers and extend only to Queen Consorts For 1. A Dowager Queen is Queen of England and as Hale said hath the Prerogative to Sue in the Exchequer 2. When once she is so qualified to have the Estate vest in her it shall continue tho' she doth not remain in the same Capacity As where one hath power to Limit an Estate to his Wife it may very well continue in her after the Coverture Thirdly It was much observed and relyed upon that Queen Elianor was only Dowager at the time of the Foundation and so could never be intended to exclude such Queens as should succeed her in that Capacity Fourthly During such time that there should be no Queen it was held that the King was to constitute the Master for he is Heir to Queen Eleanor And whereas it was urged for the Plaintiff That the King had not power to dispose of the place but only by way of provision till such time as a Queen should be so as to commit the Care of the Poor to one but not the Interest of the Mastership It was
the Reservation to the Estate Whitlocks Case 8 Co. is very full to this where Tenant for Life the Remainder over so setled by Limitation of uses with power to the Tenant for Life to make Leases who made a Lease reserving Rent to him his Heirs and Assigns Resolved That he in the Remainder might have the Rent upon this Reservation So put the Case That Lessee for a 100 years should let for 50 reserving a Rent to him and his Heirs during the Term I conceive this would go to the Executor 'T is true if the Lessor reserves the Rent to himself 't is held it will neither go to the Heir or Executor But in 27 H. 8. 19. where the Reservation is to him and his Assigns It is said that it will go to the Heir And in the Case at Bar the words Executors and Administrators are void then t is as much as if reserved to him and his Assigns during the Term which are express words declaring the intent and must govern any implied construction which is the true and particular Reason in this Case The Old Books that have been cited have not the words during the Term. Vid. Lane 256. Richmond and Butchers Case indeed is judged contrary in point 3 Cro. 217. but that went upon a mistaken ground which was the Manuscript Report 12 E. 2. Whereas I suppose the Book intended was 12 E. 3. Fitz. Assize 86. for I have appointed the Manuscript of E. 2. which is in Lincolns Inn Library to be searched 6 Co. 62. and there is no such Case in that year of E. 2. The Case in the 12 E. 3. is A Man seized of two Acres let one reserving Rent to him and let the other reserving Rent to him and his Heirs and resolved that the first Reservation should determin with his Life for the Antithesis in the Reservation makes a strong Implication that he intended so In Wotton and Edwins Case 5 Jac. the words of Reservation were Yeilding and Paying to the Lessor and his Assigns And resolved that the Rent determined upon his Death In that case there wanted the effectual and operative Clause during the Term. The Case of Sury and Brown is the same with ours in the words of Reservation and the Assignee of the Reversion brought Debt Lane 255. and did not aver the Life of the Lessor And the Opinion of Jones Croke and Doderidge was for the Plaintiff Latches Rep. 99. The Law will not suffer and Construction to take away the energy of these words during the Term. If a Man reserves a Rent to him or his Heirs 't is void to the Heir 1 Inst 214. a. But in Mallorys Case 5 Co. where an Abbot reserved a Rent during the Term to him or his Successors it was resolved good to the Successor It is said in Brudnels Case 5 Co. that if a Lease be made for years if A. and B. so long live if one of them dies the Lease Determines because not said if either of them so long lives So it is in point of Grant But it is not so in point of Reservation for Pas 4 Jac. in the Common Pleas between Hill and Hill The Case was a Copyholder in Fee where the Custom was for a Widows Estate made a Lease by Licence reserving Rent to him and his Wife during their lives and did not say or either of them and to his Heirs It was resolved First That the Wife might have this Rent tho' not party to the Lease Secondly That tho' the Rent were reserved during their lives yet it should continue for the life of either of them for the Reversion if possible will attract the Rent to it as it were by a kind of Magnetism Hoskins versus Robbins A Replevin for six Sheep The Defendant makes Conusance c. for Damage Fesant The Plaintiff replied That the place where was a great Wast parcel of such a Mannor within which there were time out of mind Copyhold Tenants and that there was a Custom in the Mannor that the said Tenants should have the sole and several Pasture of the Wast as belonging to their Tenements and shews that the Tenants licenced him to put in his Beasts The Defendant Traverses the Custom and found for the Plaintiff The exceptions moved in Arrest of Judgment were now spoken to again First That the Custom to have the sole Pasture and thereby to exclude the Lord is not allowable It hath béen ever held That such a Prescription for Common is not good and why should the same thing in effect be gained by the change of the name That Prescription for Pasture and Prescription for Common is the same thing Vid. 3 Cro. Daniel v. Count de Hertford 542. and Rolls tit Prescription 267. It is held a Man may claim Common for half a year excluding the Lord and that one cannot prescribe to have it always so is not because of the Contradiction of the Term for if the sole Feeding be but for half a year 't is as improper to call it Common but the true reason seems to be because it should in a manner take away the whole profit of the Soil from the Lord and he should by such usage lose his greatest Evidence to prove his Title for it would appear that the Land was always fed by the Beasts of others and it would be very mischievous to Lords who live remote from their Wasts or that seldom put their Beasts there as many times they do not so that by the Tenants solely using to feed it they should lose their Improvements provided for the Lords by the Statute and so come at last for want of Evidence to lose the Soil it self Secondly This Custom is laid To have the sole Feeding belonging to their Tenements and 't is not said for Beasts levant and couchant or averred that the Beasts taken were so 15 E. 4. 32. and Rolls tit Common 398. Fitz. tit Prescription 51. A Man cannot prescribe to take Estovers as belonging to his House unless he Avers them to be spent in his House Noy 145. So 2 Cro. 256. tho' the Prescription was there to take omnes Spinas for it is necessary to apply it to something which agrees in nature to the thing Brownlow 35. Thirdly Here the Plaintiff justifies the putting in his Beasts by a Licence and doth not say it was by Deed whereas it could not be without Deed and so is the 2 Cro. 575. Fourthly Those defects are not aided by the Verdict for they are in the right and of substance But the Court were all of Opinion for the Plaintiff First They held the Prescription to be good and being laid as a Custom in the Mannor it was not needful to express the Copy-hold Estates it doth not take away all the profit of the Land from the Lord for his interest in the Trees Mines Bushes c. continues Co. Inst 122. a. is express that a Prescription may be for sola separalis pastura ' and if
it may be for half a year upon the same reason it may be for ever An interest of this nature might have commenced by grant 18 E. 3. the Lord granted to the Tenant that he would not improve tho' it may be such a Grant were not good at this day The Court were agreed in this point in the Case between Porter and North brought here about three years since the principal doubt in that Case was whether the Freeholders and Copyholders could in pleading alledge a Joint Prescription for the Sole Pasture and for the mischief alledged that this might be obtained from every Lord that had not of a great many years used his Common Hale said It would not be sufficient to prove an Vsage for the sole Pasture to shew that the Tenants had only fed it unless it were proved also that the Lord had been opposed in putting in his Cattle and the Cattle Impounded from time to time To the Second Objection They held that Levancy was not material in this case because the sole Feeding is claimed So where Common for a certain number of Beasts is claimed 't is possible between the Tenants there may be some proportioning of it that one may not eat up all from the rest but 't is not material to the Owner of the Soyl. And Twisden said it was Resolved in this Court between Stonell and Masselden that want of averment of Levancy and Couchancy was aided by a Verdict Thirdly Tho' the Licence is not shewn to be by Deed they Resolved it was well enough 'T is true if the Licence were to make Title against the party which gave it there would be greater question For 't is nothing to the Plaintiff who it appears had not Damage at the most it is but a Mispleading aided by 32 H. 8. And the Plaintiff waved this matter and took Issue upon the Custom which is the material Point Vid. 2 Cro. 377. and it is found against him There might have been more colour upon a Demurrer Ante. Anonymus A Prohibition was granted to a Suit for Fees in the Ecclesiastical Court by an Apparitor upon a Suggestion that there were no such Fees due by Custom For that it tryable at Law and not by a Decinaria or Vicenaria praescriptio which is allowed in their Courts But they may Sue there for their due and customary Fees Brell versus Richards ERror upon a Judgment in the Common Pleas in an Ejectment against Eight Defendants and the Writ was Ad grave dampnum ipsorum the Judgment was only against Three and the other Five were acquitted The Error was assigned in the Nonage of the Three It was moved Whether the Writ of Error was well brought or whether the Judgment should reversed in toto The Court Resolved that the Writ was good Hob. 70. Yelv. 209. tho' it might be also ad damnum only of those Convicted But being only in the nature of a Commission whereby the King commands the Errors to be examined this matter is not material And Twisden said that the constant Practice is for all to joyn And they all held That the Judgment ought to be Reversed against all Sir Anthony Bateman's Case UPon a Trial at Bar the Question was Whether he were a Bankrupt or no It was proved that he was a Turky Merchant and Traded in the Year 1656 but it was not proved that he had afterwards Imported or Exported any thing but having the Effects of his former Trade by him to a great Value he shewed them to several and obtained the Loan of divers Sums of Money upon the Credit of them The Court held that this brought him within the Statute for such Debts as he Contracted after 1656 otherwise the Mischief would be great for Men cannot take notice when another withdraws his Trade or when he Commands his Factors beyond Sea to Deal no further for him but they seeing great quantities of Goods and Merchandize in his hands are apt to Trust him Wherefore 't is fit that they should be Relieved by the Statute Anonymus AN Administrator brought a Writ of Error upon a Judgment given in an Ejectment against the Intestate It was held that he should pay no Costs tho' the Judgment were affirmed and the Writ brought in dilatione Executionis The Bishop of Exeter versus Starr IN Debt upon a Bond the Condition recited That whereas the Obligor was Excommunicated for not coming to Church and that the now Plaintiff at his Instance and Request had absolved him That if he should obey all the lawful Commands of the Church that then c. The Defendant Demurred supposing the Condition to be against Law and so the Bond void Hale said If a man were Excommunicated there was a Writ De cautione admittenda and sometimes they took an Oath of the party Ad parendum omnibus Ecclesiae mandatis licitis honestis and that was called Cautio juratoris and sometimes Cautio pignoratitia was given 1 Bulstr 122. He said also It was held 8 Car. in Com. Banco that where the Ecclesiastical Court took a Bond of an Administrator to make distribution of what remained of the Intestates Estate after Debts and Legacies satisfied or to dispose so much to Pious uses that the Bond was void for they presumed the party in such cases to be under a kind of Coertion Et Adjornatur Isaac versus Ledgingham IN a Replevin the Defendant avowed for Suit of Court The Plaintiff Replies and confesseth himself Tenant of the Mannor and saith That there are very many Tenants of the Mannor and that there is a Custom That if those Copy-holders which live remote from the Mannor pay Eight pence to the Steward of the Court for the Lord and 1 d to himself for the Entring of it that they should be excused of doing their Suit for One year after the said payment and alledgeth That he lives 10 Miles from the Mannor and that he tendred the 8 d and 1 d and both were refused To this the Avowant Demurred First The Custom is unreasonable for by means of it no Court can be kept if so be all the Tenants live remote Secondly The Plaintiff hath not brought himself within the Custom for that is to be discharged upon payment and not upon tender and refusal And the Construction of Customs is always strict to the Words and not with that latitude as is used in Contracts Hale 'T is Custom gives the Suit and consequently may qualifie it The Doubt arises because the Plaintiff hath not alledged that there are any Tenants live near or within the Mannor or whether that ought to be shewn on the other side if it be not so because the Intendment is strong that there are Therefore a By-Law in a Mannor binds the Tenants without notice because they are supposed to be within the Mannor For the other matter they all held that Tender and Refusal was as much as Payment And Twisden said It was Resolved 8 Co.
of Kin was upon the Presumption That the Intestate intended to prefer him But now the Presumption is here taken away the Residuum being disposed of to another and to what purpose should the next of Kin have it when no benefit can accrue to him by it and 't is reasonable that he should have the management of the Estate who is to have what remains of it after the Debts and Legacies paid And the Averment That there is no Residuum is not material for being once out of the Statute upon Construction of the Words of the Will there is nothing ex post facto can bring it within it And there are certain Administrations which have been always Ruled to be out of the Statute as Administrations during Minority pendente lite which need not be granted to the next of Kin and granting it to the Husband comes not within the Words of the Statute But because in this case Administration had been granted so long before the Residuary Legatee came in and the Administrators by Decrees in Chancery had got in great part of the Estate and still there were Suits depending there for obtaining of the rest which were near their Effect which would be abated and set aside if the Administration were now Repealed The Court proposed an Accommodation as most useful to either of the Parties and advantagious to the Estate which was accepted The Civilians said That a Legatee that had got Administration tho' it were after Repealed upon a Citation should yet retain for his Legacy Otherwise upon an Appeal for there the Administration is avoided ab initio Vid. Blackman's Case 6 Co. Bedniff Ux ' versus Pople Ux ' A Prohibition was prayed to stay a Suit for Defamation in the Ecclesiastical Court for Words spoken to the Servant of the Plaintiff viz. Go tell thy Mistress Whore she is a Whore and I will prove it It was said they were common Words of Brabling and not importing any such Slander for which Suit could be there 3 Cro. 393. Dimmock versus Fawcet 3 Cro. 456. Pewe and his Wife versus Jeffryes Hale These cannot be said to be Words of Heat as if spoken when the Parties are Scolding together but were uttered deliberately in the Parties absence to her Servant Formerly they would Prohibit unless the Words implied some Act to have been done Vid. Eaton versus Ayloff 3 Cro. 110. But 't is Reason the Suit should proceed in this Case seeing it is for matter of Slander which is punished by publick Pennance Therefore Suit lies in London for calling Whore because by the Custom there Whores are to be Carted Wherefore the Court denied a Prohibition Road versus Wilmott IN False Imprisonment the Defendant Iustified by a Capias directed to him upon a Suit commenced against the Plaintiff in an Inferiour Court. To which the Plaintiff Demurred because it was not shewn that a Summons was issued first and Inferiour Courts can Award no Capias but upon a Summons first Returned To which it was Answered That this being admitted yet it is but an Erroneous Process in the Execution of which the Officer is excused who is not to be punished when the Court proceeds inverso ordine Hale said It was a great Abuse in those Courts their ordinary Practice being to grant a Capias without any Summons so that the Party is driven to Bail in every trivial Action and that tho' upon a Writ of Error this Matter is not assignable because a Fault in the Process is aided by Appearance c. yet False Imprisonment lies upon it and the Officer cannot Iustifie here as upon Process out of the Courts of Westminster For suppose an Attachment should go out of the County Court without a Plaint could he that executes it Iustifie Yet a Sheriff may Iustifie an Arrest upon a Capias out of the Common Pleas 10 Co. 76. 3 Cro. 446. tho' there were no Original But Ministers to the Courts below must see that things be duly done Wherefore the Plaintiff must have Judgment Monk's Case A Debt was recovered against him in this Court and the Money levied by the Sheriff which he did not deliver but was ordered to bring it into Court until a difference that arose about it was determined Monk being indebted to the King a Writ was issued out to enquire what Goods and Chattels he had The Kings Attorney moved that they might have leave to find this Money the Court conceived that the Money being but as a Depositum there they might find it and that the Court did not protect it from the Inquisition as when Goods are under an Attachment they cannot be distrained but they would not make any direction for the finding of it Blackamore versus Mercer IN Judgment against an Executor a Fieri facias issued out to the Sheriff with a Scire fieri inquiry and a Devastavit was found according to the common course the return whereof was quod diversa bona quae fuerunt restatoris c. habuit quae elongavit in usum suum proprium convertit It was objected against this Return That it was not said Devastavit for in some Cases an Executor may justly convert the Goods to his own use Hale said antiently when the Sheriff returned a Devastavit which was not found by any Inquisition and to which there was no answer it was necessary to insert the word Devastavit But otherwise in a return upon this Special Writ for if the case be that he hath not wasted the Goods but only eloigned then so as the Sheriff cannot come at them the Executor is chargeable upon this Writ de bonis propriis and this Return answers the Writ Perrot versus Bridges IN Trespass quare clausum fregit and threw down his Fences The Defendant pleaded Not guilty to all but the breaking of the Fences and for that he justifies for that he was possessed of certain Corn in the place where as of his proper Goods and made a breach in the Fence as was necessary for the carrying of it away The Plaintiff Demurrs Specially because he did not shew by what Title he was possessed of the Corn. And the Court were of Opinion that for that cause the Plea was insufficient for if a Man enters upon anothers Land and sows it 't is his Corn while he that hath right re-enters so if Tenant at Will sows the Ground and then determins his own Will he cannot break the Hedges to carry the Corn away And Twisden said if the Sheriff sells Corn growing by a Fieri facias the Vendee cannot justifie an entry upon the Land to Reap it until such time as the Corn is Ripe Anonymus IF an Administrator brings an Action the declaring hic in Curia prolat ' of the Letters of Administration is but matter of Form tho' it hath béen held otherwise For Hale said 't is not part of the Declaration as a Specialty is upon which Debt Covenant c. is brought but
c. be indicted for not repairing of a Way within their Precinct they cannot plead Not guilty and give in Evidence that another by Prescription or Tenure ought to repair it for they are chargeable de communi Jure and if they would discharge themselves by laying it elsewhere it must be pleaded Error ERror to Reverse a Judgment in Debt upon a Bond given in Norwich Court where by the Custom the plea of the Defendant was quod non dedicit factum sed petit quod inquiratur de debito First It was moved to be Error for that the Venire was XII Men c. in figures Sed non allocatur for being in these letters XII and not in the figures 12. it was well enough Secondly It was ad triandum exi tum whereas there was no Issue joyned wherefore it ought to have been ad inquirend ' de debito c. Sed non allocatur for the Presidents are as the Case is here Thirdly The Condition of the Bond was to pay at Alborough and that ought to have been shewn to be within the Jurisdiction of the Court Sed non allocatur for the Plea here is not payment secund ' formam Conditionis but the Jury is to inquire by the custom of all manner of payments and discharges Fourthly In the Record it was continued over to several Courts and in the Court where the Judgment is given 't is said in Curia praedicta and so incertain which but notwithstanding these matters the Iudgment was affirmed Anonymus THe Case upon Evidence at a Tryal in Ejectment was this a Dean and Chapter having a right to certain Land but being out of Possession Sealed a Lease with a Letter of Attorney to deliver it upon the Land which was done accordingly and held to be a good Lease for tho' the putting the Seal of a Corporation aggregate to a Deed carries with it a delivery yet the Letter of Attorney to deliver it upon the Land shall suspend the operation of it while then Tenant for Life being in Debt to defraud his Creditors commits a Forfeiture to the end that he in Reversion may enter who is made privy to the contrivance The Opinion of Hale was that the Creditors should avoid this as well as any fraudulent Conveyance Anonymus IN an Ejectment upon a Tryal at Bar for Lands in antient Demesne there was shewn a Recovery in the Court of antient Demesne to cut off an Entail which had been suffered a long time since and the Possession had gone accordingly But there was now objected against it First That no sufficient Evidence of it appeared because the Recovery it self nor a Copy of it was shewn for in truth it was lost But the Court did admit other proof of it to be sufficient and said if a Record be lost it may be proved to a Jury by Testimony as the Decree in H. 8. time for Tythe in London is lost yet it hath been often allowed that there was one Secondly It appeared that a part of the Land was leased for Life and the Recovery with a single Voucher was suffered by him in Reversion and so no Tenant to the Praecipe for those Lands But in regard the Possession had followed it for so long time the Court said they would presume a Surrender as in an Appropriation of great Antiquity there has been presumed a Licence tho' none appeared Thirdly It was objected That the Tenant in Tail which suffered the Recovery having first accepted of a Fine sur Conusans de droit come ceo his Estate Tail was changed for he was estopped during his Life to say that he had any other Estate than Fee then he being made Tenant to the Praecipe the Recovery was not of the Estate Tail and so should not bind But the Court held clearly that the acceptance of this Fine made no alteration of his Estate If Tenant for Life accepts such a Fine 't is a Forfeiture because he admits the Reversion to be in a Stranger but it does not change his Estate so where two Joynt-tenants in Fee accept a Fine which is to the Heirs of one of them yet they continue Joynt-tenants in Fee as they were before Fourthly The Writ of Right Close did express the Land to lie in such a Mannor and a Praecipe that demands Land ought to mention the Vill in which they lie for a Praecipe of Land in Parochia or in Manerio is not good But this exception was disallowed by the Court for Hale said the Writ of Right Close is directed Ballivis Manerij c. quod plenum rectum teneant of the Land within the Precinct of the Mannor and it is not to be resembled to another Praecipe But if a Praecipe be faulty in that Point unless exception be taken to it in Abatement it cannot be assigned for Error but if it were Erroneous the Recovery would bind until reversed Note After Judgment quod computet tho' it be not the final Judgment yet no motion is to be admitted in Arrest of Judgment and after such Judgment a Scire facias lies against the Executor of the Defendant Note In an Action of Debt against the Lessee he may plead nil debet and give the expulsion in Evidence Anonymus IN an Assumpsit the consideration appeared to be that the Defendant promised to pay a Sum of Money which he owed this is no good consideration tho' after a Verdict unless it appeared that the Debt was become remediless by the Statute of Limitations but payment of a Debt without Suit is a good consideration Anonymus A Justice of the Peace brought an Action of Slander for that the Defendant said He was not worth a Groat and that he was gone to the Dogs and upon motion in Arrest of Judgment notwithstanding that it was urged to maintain it that the Statute of H. 6. requires that a Justice of Peace should have 40 l a year And therefore in regard an Estate was necessary to his Office that the Action would lie yet the Judgment was stayed for such words will not bear an Action unless the person of whom they are spoken lives by buying and selling Anonymus IT was returned upon Elegit that the Sheriff had delivered medietatem Terrar ' Tenementorum in extent and after the Filing and Entry of it upon the Record the Plaintiff moved to quash it because it was insufficient for the Sheriff ought upon such Execution to deliver the Possession by Metes and Bounds Wild held that it being entred upon the Record there was no avoiding of it but by Writ of Error But Hale held that in regard it appeared by the Record to be void it might be quashed as if upon an Ejectment to recover Possession upon such a return it appears upon the Evidence that there was more than the half the Land delivered this shall be avoided So if a Fieri facias be not warranted by the Judgment upon which it is awarded tho' the Sheriff shall be
of Wood he hath the effect of his Grant But Trees differ in value exceedingly from each other Bolton versus Cannon IN Debt against an Executor for Rent Arrere in his own time in the debet detinet The Defendant pleads that the Rent is more worth than the Land and that he tendred a Surrender before the time for which the Rent is demanded and that the Plaintiff refused to accept the Surrender and that he had fully administred and so demands Iudgment of the Action The Plaintiff replies that there was Rent Arrear to him and that therefore he was not bound to accept of the Surrender and to this the Defendant Demurrs The Court said First That an Executor that does intermeddle cannot wave a Lease or any other part of the Testators Estate for he cannot assume the Executorship for part and refuse for part Secondly That in case the Land be not more worth than the Rent it is a good Plea to an Action of Debt in the debet and detinet for he is to be charged in the detinet only tho' where the Rent is of less value he may be charged in the debet detinet for that which is accrued in his own time according to Hargraves Case 5 Co. Thirdly The doubt here is that the Defendant having waved the material part of his Plea viz. That the Rent exceeded the value of the Land and relied upon his tender of a Surrender which is nothing to the purpose whether Judgment can be here for him and that otherwise his Plea is double but because the Plaintiff hath not demurred to that but answered only to one part of it the Defendant might well Demurr upon the Replication because it does not answer all contained in the Plea for unless the party Demurrs for doubleness he is bound to answer all the matters alledged Et Adjornatur But being this Term moved again Iudgment was given for the Plaintiff because the Defendant relinquished the material part of his Bar and offered matter meerly frivolous Cartwright versus Pinkney TEnant for years Surrenders to the Lessor reserving a Rent the question was Whether it was a good Reservation And held that it was upon the Contract and that Debt lay after the first day was incurred wherein it was reserved to be paid for it was in the nature of a Rent and not of a Sum in Gross Ante Wilson and Pinckney Anonymus IN Trespass for Fishing in his several Fishery pisces cepit After a Verdict for the Plaintiff it was moved in Arrest of Judgment that the Plaintiff ought to have alledged what kind of Fishes and the number of them as in Playters Case 5 Co. is But for that it was said on the other side that at that time they were more strict in the certainty of pleading than since for now and indebitat ' Assumpsit for Work done or Goods sold is allowed without further certainty And that however the Oxford Act 15 Car. 2. here helped it for tho' this be none of the defects there enumerated yet the words of the Act being That Judgment shall not be arrested for any other exception that doth not alter the nature of the Action or Tryal of the Issue shall extend to this Case But the Court were of Opinion that none of the Acts had aided this Case in regard that there was not so much as the number of the Fishes expressed as if a Man should bring Trespass for taking of his Beasts and not say what But Hale said Trover for a Ship cum velis had been allowed because all made but one aggregate Body both the Ship and Sails But Trover pro velis would not be good Vid. 2 Cro. 435. Trespass quare clausum fregit Spinas cepit and 3 Cro. 553. Child and Greenhills Case Dr. Webb versus Batchelour al' IN Trespass for taking so many Cowes upon Not guilty a Special Verdict was found That an Act of this King for repairing of the High-ways appoints that such persons as keep Carts and Horses c. should send them at certain times to assist in the repairing of the Ways not having a reasonable excuse and that warning was given to the Parishioners of the Parish whereof the Plaintiff was Parson to send in their Carts and that the Plaintiff omitting to do it a Justice of Peace made a Warrant to the Defendant to distrain him according to the Authority given by the Act c. It was alledged for the Plaintiff First That Clergymen were not obliged by this Act for Ecclesiastical Persons have always had immunities from such charges as Pontage Murage c. and shall not be comprehended in the general words Parishioners Secondly That in regard the Act allows an excuse the Justice of the Peace ought to have caused the Plaintiff to have appeared before him to have seen whether he had an excuse before he could have made his Warrant and tho' the Officer that executes the Process of a Court of Record be indemnified where the proceeding is Erroneous yet 't is not so where the proceeding is not of Record as the 10 Co. in the case of the Marshalsey 3 Cro. 394. Nicholls versus Walker and Carter Where a Warrant was made by a Justice of the Peace to distrain for a Poors Rate Trespass was maintained against the Officer that executed the VVarrant because the Plaintiff was not chargeable as an Inhabitant of the Parish for whose Poor the Rate was made Curia contra 1. The Clergy are liable to all publick charges imposed by Act of Parliament and that hath been resolved as Hale said upon debate before all the Judges 2. The Officer that executes the VVarrant though unduely made for the cause alledged is not answerable for he is not to judge but to execute the matter it being within the Jurisdiction of the Justice of the Peace and 't is not like the Case in the 3 Cro. for there the Churchwardens And Overseers of one Parish distrained in another Parish which was out of the limits of their Authority but in 14 H. 8. 16. where a Justice of the Peace made a VVarrant to Arrest a Man for Felony which in those times was held beyond his power tho' otherwise since unless there had been some Indictment of Record yet 't is there held the Officer that executes such VVarrant is not punishable Wherefore Judgment was given here for the Defendants Termino Sanctae Michaelis Anno 27 Car. II. In Banco Regis Anonymus A Judgment was removed by Error into this Court and affirmed the Capias that is Awarded thereupon must mention it and not be general as upon a Judgment originally in this Court and if such a Writ issues out the Court will upon motion grant a Supersedeas and there needs no Writ of Error in Adjudicatione Executionis tho' it was taken out in a former Term. Anonymus LIbel was by the Churchwardens of c. in the Ecclesiastical Court for 1 l 6 s 8 d upon a Custom
disposition of them in case of such necessity pendente lite And the Court granted the Prohibition quoad that Allegation only Tothil versus Ingram IN Replevin the Defendant avowed for an Herriot and Arrears of Rent upon a Lease In Bar of this Avowry as to to the Herriot the Plaintiff pleaded That in a former Replevin brought by him against J.S. the said J. S. made Conuzance as Bailiff to the Defendant for the same Herriot and was barred And to the rest he pleaded a Release of all demands made unto him by the Avowant before this Rent accrued and to this the Avowant demurred First For that he doth not shew that he which made Conisans was Bailiff to the now Avowant for he might make Conisans without his Privity and if so it could be no bar to him now As to the Release it was said that a Rent incident to a Reversion would not be barred by such Release And so it was adjudged in this Court in Hen and Hampsons Case in the year 1662 by Foster Chief Justice Windham and Maller against the Opinion of Twisden who now said that that Resolution was contrary to Littl ' Sect ' 510. who saith that a Release of all demands will extinguish a Rent-service And it was said that in Hancocks and Fields Case 2 Cro. 170. it is adjudged that such Release will extinguish a Rent reserved upon a Lease tho' not a Covenant before it be broken To which it was answered That in Witton and Byes Case 2 Cro. 486. It is resolved that if a Lessee Assigns over his Term reserving a Rent it will be extinguished by releasing of all demands But Houghton makes a difference between such a Rent and a Rent incident to a Reversion For the first Point the Court held that if the Bailiff had no Authority to make Conisans it ought to be shewn on the Avowants part for otherwise it shall be intended and this may be Traversed by the Avowant here tho' the Plaintiff in Replevin when Conizans is made cannot Traverse the being Bailiff But for the second Point Adjornatur Sir Walter Plomer versus Sir Jeremy Whitchcot THe Court were this Term to give their Opinions in the grand Point viz. Whether Sir Jeremy Whitchcot Warden of the Fleet were liable for Escapes suffered by Duckenfeild his Lessee Duckenfeild being insufficient But the whole Court observing an imperfection in the Verdict which found that Duckenfeild was insufficient when put in and at the time of his Escape but it was not found that he was so at the time of the Action brought Hereupon they declared that they were all agreed that Sir Jeremy Whitchcot was liable if the said matter had béen found but that they could not give Iudgment upon the Verdict as it was found whereupon the Parties were permitted to take a Venire de novo but they rather chose to have a Nil capiat c. entred and so bring a Writ of Error for their Counsel were very strong that that matter should be intended in a Special Verdict and their Declaration did alledge him to be insufficient at the time of the Action brought But Sir Jeremy Whitchot soon after died and so the Writ of Error did not proceed Ent versus Withers IN Debt against on Executor suggesting a Devastavit and to charge him in his own right The Defendant pleaded a frivolous Plea to which it was demurred but then exception was taken to the Declaration that it did not set forth any Judgment obtained before against the Executor de bonis testatoris without which this Action would not lie in this manner Vid. Wheatly and Lane Hill 20 21. Car. 2. in Sanders And of that Opinion were the Court but Serjeant Pemberton desiring to argue it saying there was no difference in reason between the Cases Adjornatur Anonymus THe Court said that in case of an Indictment and Issue joyned the Party could not carry it down to Try it by Proviso for it lay not against the King Astree versus Ballard THe case was The Plaintiff had recovered against two in Trover and now brought a Scire facias against the Bail who pleaded that he had taken one of the Principals in Execution before the Scire facias taken out 1 Ro. 897. If one hath Execution against the Principal he cannot afterwards proceed against the Bail nec ê contra but Paschae 28. of this King it was resolved in the Case of Orlibary and Norris where the Bail was taken first in Execution and afterwards the Principal that they should be both detained until satisfaction contrary to 1 Ro. 897. So that it appears that the Plaintiff shall not be concluded by his Election to proceed against the one first But here the difficulty is that the Bail by the Plaintiffs act is disabled to bring in both their Bodies according to the Condition of their Recognizance he having taken one of them himself Et Adjornatur Smith versus Tracy IN a Prohibition the case was Eliz. Smith died Intestate leaving two Brothers one of the whole Blood and the other of the half Blood And in the Ecclesiastail Court they would admit the half Blood to come in for distribution with the whole Blood upon the Act of 22 and 23 Car. 2. cap. 10. Vpon which a Prohibition was granted to which there was a Demurrer And the question came upon these words in the Act viz. That distribution is to be made to the next of Kin of the Intestate who are in equal degree and such as legally represent them For the Plaintiff it was said that Statutes were to be expounded by the reason of the Common Law which took no consideration of the half Blood insomuch that an Estate should rather escheat then descend to the half Blood Then the words of the Act are such as legally represent them which they both do the common Auncestor but not one another in this case Consideration is to be had of the intent of the Interstate which must be supposed to prefer the Brother of the whole Blood Dier 372. Isteds Case where the Executor dies Intestate the Residuary Legatee of the first Testator shall have Administration and not the next of Kin because that is suitable to the intent On the contrary it was argued that altho' the half Blood be rejected in descents yet it is regarded in other Cases 3 Co. in Ratcliffs Case the half Blood may be Guardian in Soccage Vid. 2 Ro. 303. and Stile 's Rep. 74 75. for granting of Administrations to the half Blood there cannot be two degrees made of the whole Blood and the half Blood neither does out Law make any distinction but when it wholly excludes them Curia The intent of this Act was to give the Ecclesiastical Court the Jurisdiction in this matter and to provide for the distribution of Intestates Estates which they had a long time attempted and contested but were still prohibited but now this Act permits them to proceed and it were fit we
words in Latin and this pursuant to the Statute of E. 3. which requires that their legal Proceedings should be in Latin and if the words were not so Elegant yet they would serve in an Information c. where 't is rather chosen to put in words agreeable to the phrase of the Law than to Tully's Orations And so the Court Wild being absent delivered their Opinions for the King but took time to set the Fine and immediately Committed the Defendant who before was upon Bail as the course is when Judgment is given altho' no Fine was set Anonymus IT was said by the Court upon an Indictment against one for Refusing to take an Apprentice bound by the Churchwardens and a Justice of Peace according to 43 Eliz. that in such case a man cannot be Compelled to accept an Apprentice Pagett versus Dr. Vossius TRin. 26 Car. 2. Rot. 583. In an Ejectment upon a Special Verdict the Case appeared to be thus Dr. Brown by Will Devised certain Lands to Dr. Vossius the Defendant a Dutchman during his Exile from his Country and if it should please God to restore him to his Country or that he should dye that then the Lands should go to the Lady Mary Heveningham in Fee who was the Lessor of the Plaintiff It was found that at the time of making the Will and the Death of Dr. Brown there was War between England and the States General and that the Doctor was fallen into Displeasure with the States and that they had taken a Pension from him of 140 l per annum and that by reason thereof he came over But did not find that he was Exiled by any Act of State and that the War was now ceased and that the Doctor might Return if he pleased but it did not find that they had restored him to his Pension c. After divers Arguments on both Sides this Term Judgment was given for the Defendant by the whole Court For they said there was a Voluntary and Compulsary Exile and in regard he was not Exiled by any Publick Edict the Will must be understood of a voluntary absence from his Country And the Jury found that those Matters which drove him away did still continue viz. The depriving him of his Pension Nota Exilium is a word known in our Law viz. When Villains by hard Usage are constrained to depart from the Mannor And if it be Objected That this durante Exilio is a void Limitation as being of unknown sense in our Law 't is still against the Lessor of the Plaintiff and then she cannot claim until the Doctor 's death and in the mean time the Discent must be to the Heir at Law Exilium quasi ex solo that is as if it had been said During his absence from his Country The King versus Plume HE was Indicted upon the Statute of the 5th of the Queen for that he had set up used and exercised Artem Mysterium sive Manual occupationem Pomarii Anglicè of a Fruiterer being a Trade Mystery or Manual occupation used in this Kingdom the 12th day of January Anno Eliz. 5. in which Trade the said Plume was not brought up by the space of Seven years c. And to this the Defendant Demurred For that it hath been held that the Statute extends not to every Trade but to such an one as requires Art and Skill and therefore not to a Hemp-dresser as in the 1 Cro. so in 2 Bulstrode 188. nor to a Pippinmonger as in 1 Roll's Rep. 10. And so a Gardiner hath been Resolved not to be within the Act in the 14th of this King The Indictment was for the Trade of a Barber but no Judgment given but others said That in that Case Judgment was for the King On the other side it was said That the Question here is not of those which sell Apples in Stalls but the Trade of a Fruiterer is well known and they are Incorporated in London and there requires much Skill in Sorting of Fruit and in judging the durableness thereof But the Court inclined for the Defendant But being informed by the Counsel for the King that there were many Presidents it was adjourned Postea Harrington's Case HArrington was again brought up and the Court fined him a Thousand pounds and awarded that he should recant the words in such words as the Court should direct and to find Sureties for his Good behaviour for seven years after which he produced a Writ of Error returnable before the Lords then Sitting in Parliament and prayed that it might be allowed and that he might be admitted to Bayl. The Court said that they allowed the Writ but would advise whether they should Bayl him or no and so remanded him to Prison Anonymus IN an Assault Battery and Wounding the Plaintiff after Verdict moved the Court for an encrease of Damages the Court said they could not do it if the word Maihemavit was not in the Declaration Clarkes Case UPon an Habeas Corpus to the Mayor c. of London a Custom was returned to Disfranchise and commit a Freeman for speaking opprobrions words of an Alderman The Court said they might Fine in such Case but the other Custom would not hold notwithstanding the Act of Confirmation of their Customs Termino Paschae Anno 30 Car. II. In Banco Regis Anonymus IN Trespass of Battery by Baron and Feme for beating of them both Vpon Not guilty the Verdict was for so much Damage for beating the Husband and so much for beating of the Wife The Court said upon a motion to Arrest the Judgment that the Plaintiff might release the Damages for beating of himself and take Judgment for the other The King versus Mead. AN Information was brought against him upon the Statute of 17 Car. 2. which restrains Non conformist Ministers from Inhabiting within five miles of any City Town Corporate or Burrough that sends Burgesses to Parliament c. After Verdict for the King it was moved in Arrest of Judgment First That the place of his Habitation was alledged to be within five miles of London but it was said that London sent Burgesses to Parliament which not being in the Record the Judges were not to take knowledg of Sed non allocatur For the last words of sending Burgesses to Parliament shall be referred only to Burroughs and therefore the Act restrains them from dwelling in Corporations c. tho' such Corporations as send no Burgesses Secondly It is alledged that the Town where the Defendant dwells is within five miles but not that the place of his Habitation in that Town was so and therefore may he intended to be more remote Thirdly There wants vi Armis Sed non allocatur Sed Judicium pro Rege Termino Sanctae Trinitatis Anno 30 Car. II. In Banco Regis MEmorandum This Term Sir Richard Rainsford was removed and Sir William Scroggs one of the Justices of the Common Pleas was made Lord Chief Justice of the Kings Bench.
meant by the name of Son As to Beckford's Case the Words are full to carry all and therefore it had been impertinent to have wrote over the Will again So where a man has two Sons named John it may be well averred that he meant the younger Son for nothing in the Will is inconsistent with such meaning The Court took time to deliver their Opinions And afterwards the Chief Justice delivered the Opinion of the Court That neither the Republication nor Parol Declaration could operate as a Devise to R. c. the Grandson Pepis's Case A Mandamus to restore him to his Place of Recorder of the Town of Cambridge The Return was That they were Incorporated by the Name of Mayor Aldermen c. with a Power to chuse a Recorder Habend ' pro termino vitae aut ad voluntat ' eligentium That Mr. Pepis was Chosen Recorder ad voluntat ' eligentium and that afterwards by the Votes of the greater number of the Electors he was removed and the Lord Allington constituted a Recorder under their Common Seal c. Vpon this Return it was moved for Mr. Pepis that altho' they had alledged a Power to Chuse a Recorder at Will yet they should have shewn Cause for his Removal being a Judicial Office which the Court takes notice of and that none had such a Power but the King to remove Judges ad libitum Again A Corporation aggregate cannot determine their Will but under their Common Seal and that is not shewn here Curia Where a Recorder is at Will they may remove him at pleasure as it is in Blagrave's Case and several other Cases As to the other Point it does not appear that he was Constituted under their Common Seal perhaps then they must have determined their Will under their Common Seal but now 't is well enough my Lord Allington is Constituted under their Common Seal which Act removes the other so it was adjudged against Mr. Pepis Termino Sancti Michaelis Anno 31 Car. II. In Banco Regis A Prohibition was prayed to the Court of Admiralty upon a Suggestion that the Suit was there upon a Contract made upon the Land The Case was thus A Bargain was made upon the Land with severl Seamen to bring up a Ship from a Port in England to London for a certain Sum to them to be paid And for the Prohibiton 't was alledged that this being upon the Land and a Contract with divers joyntly for a Sum in Gross it could not be within the ordinary Rule of Mariners Wages which is permitted to be Sued for in the Court of Admiralty in favour of the Mariners because they may all joyn in that Court and not be put to the inconvenience of Suing severally as they must at Law but as this Contract is they are to sue joyntly at Common Law But the Prohibition was denied for this must be taken as Mariners Wages And therefore tho' the Contract were upon the Land yet they have Jurisdiction Besides the Party comes after Sentence and therefore in the Courts discretion whether they will then grant a Prohibition Note A Rump Act was made to enable Mariners to Sue for Wages in the Admiralty but yet the Law was taken to be so before Vid. 3 Cro. Anonymus A Prohibition was prayed to the Ecclesiastical Court where the Libel was for these words You are a Whore and Ply in Moorfields And the Suggestion was that the words were spoken in London where an Action lies for such words and for that Cause a Prohibition was granted otherwise Suits might have been in the Court Christian for such words tho' not singly for the word Whore being a common word of brabling otherwise where joyned with words which shew the intent to Defame in that kind Anonymus AN Indebitat ' Assumpsit was brought for Goods sold and delivered The Action was laid in London and a Motion was made to change the Venue upon an Affidavit that the Sale was in Kent But on the other side it was said the delivery was in London and that were the Matter consists of two parts in several Counties the Plaintiff shall have his Election to which the Court agreed Anonymus A Man Covenants with his intended Wife to give her leave to dispose of so much by her Will and then they Intermarry the Husband having given Bond to a third person for the performance of these Covenants after the death of the Wife the Husband is Sued upon the Bond for not permitting her Will to be performed And upon Oyer of the Condition it was insisted on for the Defendant that these Covenants were discharged by the Marriage and so the Bond likewise loseth its force Vid. Hob. 216. Et Adjornatur Anonymus A Motion was made to quash an Inquisition of forcible Entry it was Inquisitio capta per Juratores super Sacramentum suum coram T. S. J. N. Justiciariis c. qui dicunt super Sacramentum praed ' And it was objected That qui dicunt c. referring to the last antecedent it was that the Justices say Sed non allocatur for super Sacramentum praedict ' makes it certain Note The Caption of an Indictment may be amended the same Term it comes into Court Anonymus AN Indictment for not taking upon him and executing the Office of a Constable to which he was chosen by the Leer The question was Whether a Tenant in antient Demesne were obliged to that Office And the Court held that he was Termino Sancti Hillarij Anno 31 32 Car. II. In Banco Regis Anonymus IN Ejectment upon a Special Verdict the case was thus A Lease was made A. and B. for their Lives Remainder to the first Son of A. c. Remainder to the Heirs of A. B. conveys his part to A. The question was Whether the Contingent Remainder to the first Son were destroyed Holt argued that it was For a Contingent Remainder must have some particular Estate of Freehold to support it and by the Release of B. his Estate was gone and there became an intire Fee in A. For by whotsoever means a Joynt tenant for Life conveys his Moiety to his Companion it does not enure by Grant of the Estate but by Release as Eustace and Scawens Case 2 Cro. 696. A. and B. Joynt tenants for Life A. Levy's a Fine to B. B. dies there shall be no Occupancy of the Moiety of A. during the Life of A. Jones 55. and the Case of Lewis Bowels 11 Co. is not to be objected where an Estate for Life was made to B. and F. the Remainder to their first Son that they should have in Tail Remainder to B. and F. in Tail here tho' an Estate in Tail is executed in B. and F. until a Son Born yet after upon the Birth of the Son the Contingent Remainder shall vest and split and divide the former Estate 2 Co. 60.61 but here the Fee becomes executed by several Conveyances but there the Estate
of the Proceeding after delivery of the Writ but the place only expressed where the Writ was delivered they thereupon overruled this Specious Exception Post Anonymus ONe A. B. was indicted of High Treason in Conspiring the death of the King and was brought to his Tryal at the Bar this Term and one D. being produced a Witness against him the said A. B. excepted against him for that the said D. had been Outlawed of Felony and Burned in the Hand and produced the Record The Witness to clear himself thereof produced the Kings Pardon whereby he was pardoned of the said Crimes Outlawry c. The Prisoner still objected that the Pardon did not restore him to his Credit and that notwithstanding he was no legal and competent Witness and prayed that he might have Counsel assigned him to argue the Point which was granted And the Court having heard his Counsel and conceived some doubt in the Matter they desired Mr. Justice Raymond to consult with the Judges of the Common Pleas to which Court Raymond immediately went and at his return reported to this Court the Opinion of the said Judges to be that he might be Sworn But if a Man convicted of Perjury were afterwards pardoned yet that would not enable him to be a Witness because it seemed to be an injury to the People to make them subject to the Testimony of such an one Vid. Hob. 81. a Pardon takes away poenam reatum so D. was Sworn Colepeppers's Case HE was indicted of High Treason for Raising Rebellion in Carolina one of the Kings Foreign Plantations in America whereupon he was this Term Tried at the Bar and acquitted Note By 35 H. 8. cap. 2. Foreign Treasons may be either tried by Special Commission or in the Kings Bench by a Jury of the County where that Court Sits Vid. Co. 1 Inst 261. b. Anonymus UPon a Tryal at Nisi prius at Guildhal before my Lord Chief Justice North in Trover and Conversion against an Executor de son tort ' The question came to be Whether the Goods having been taken in Execution upon a Judgment obtained against the Defendant by a Creditor of the Deceased should discharge him against the Plaintiff who brought this Action as Administrator And the Opinion of the Chief Justice was that this Execution was a good Discharge against another Creditor that should Sue him to whom he might plead Riens inter ses mains but it was no Discharge against an Administrator for Men must not be encouraged to meddle with a personsal Estate without Right but to prevent this mischief where the Party dies Intestate and there is contest about the Administration a Man may procure of the Ordinary Letters ad Colligendum Termino Sancti Michaelis Anno 32 Car. II. In Banco Regis Anonymus THe Statute of 43 Eliz. cap. 2. that enables Justices of Peace where a Parish is unable to provide for their Poor to Tax the neighbouring Parish the words being any other of any other Parish It was resolved that the Justices might impose the charge upon any of the Inhabitants of the neighbouring Parish and were not obliged to put a general Tax upon the whole Parish Anger versus Brower A Prohibition the Plaintiff declared upon an Attachment that at such a day and place he delivered the Writ to the Defendant and that he had prosecuted the Suit in the Court Christian since and upon Judgment by Nihil dicit and upon a Writ of Enquiry 100 l Damages were found and Judgment given and a Writ of Error brought The Error assigned was that the Plaintiff had laid no Venue where the Suing was since the Writ delivered which was the cause of Damage and not the delivery of the Writ so that place would not serve On the other side it was said that the Presidents were generally this way But to that the Court said that where those Presidents were there was no further Proceeding after Judgment as there seldom was when there was Judgment by Nihil dicit but here they reversed it for this Error Ante. The Case of the City of London concerning the Duty of Water Bailage THe Mayor and Commonalty of London brought an Indebitat ' Assumpsit against A. B. for 5 l for so much due to them for divers Tons of Wine brought from beyond the Seas to the Port of London at Four pence per Ton. Vpon Non Assumpsit pleaded and Trial at Bar divers Freemen of London were offered as Witnesses for the Plaintiff But the Counsel of the other side excepted to them for that they were Parties the Commonalty of London comprehending all the Freemen and likewise Interested On the other Side it was said that their Interest was in no sort to be considered it being so very small and remote a small Legatee hath been sworn to prove a Will In an Indictment against the County for not Repairing of a Bridge one of the County may be a Witness and this Justice Dolben said he had known in the Case of Peterburgh Bridge In a Robbery sur Statute de Winton the Plaintiff shall be Sworn a Witness and that for Necessity But it was Replied that there was no Necessity for they might have other Witnesses besides Freemen tho' perhaps with difficulty In an Action against the Hundred upon the Statute of Winton an Hundred or cannot be a Witness Scroggs Chief Justice Dolben and Raymond were of Opinion that they were Witnesses Jones contra And a Bill of Exceptions was tendred by the Counsel for the Defendant which the Court profered to Seal and to allow three or four days time to Draw it up But afterwards the Plaintiffs Counsel offered other Witnesses and set by their Citizens but the Verdict went for the Defendant Note It was said that the Lord Mayor could not Release the Action but under the Common Seal and that for a Duty or Charge upon a Corporation every particular Member thereof is not liable but Process ought to go in their Publick Capacity Note A Sheriff was ordered to attend the Court for demanding an excessive Fee for the execution of an Hab ' fac ' possess the Court saying there was none due Anonymus A Prohibition was granted to the Consistory Court of the Bishop of London for Citing one for calling of her Whore because such words by the Custom of London are punishable in the Courts of Law there Anonymus IF the Plaintiff dies after the Term began tho' before Judgment Entred yet Judgment may be Entred because every Judgment relates to the first Day of the Term. Anonymus A Motion was made to quash an Inquisition taken before the Coroners super visum corporis of one that killed himself which found that he was Felo de se But the Court were Informed that the party was Non compos mentis and that there had been an undue Practice by the Coroner of both which great Proof was made and upon that it was quashed Note The Court said that if the Body
Rogers v. Bradly 143 Rozer v. Rozer 36 Rudyard 's Thomas Case 22 S SAlisbury 's the Lord Case 365 Samon v. Jones 318 Sarsfield v. Witherly 292 Sayle v. Freeland al' Infants 350 Sherborn v. Colebach 175 Shipley v. Craister 131 Smithson 's Sir Jerom Case 345 Snode v. Ward 197 T TArget v. Loyd 272 277 Thompson v. Leach 198 Tovey v. Pitcher 228 234 Tregonwell Jane Vid. Executrix of John Tregonwell v. Sherwin 262 Trethewy v. Ellesdon 141 Trippet v. Eyres 110 113 Tonstal v. Brend 174 Turner Methuselah v. Sir Samuel Sterling 25 Turner 's Case 348 W WAlden Sir Lionel v. Mitchel 263 265 Warren v. Sainthil 185 186 Watmough v. Holgate al' 219 221 Web Prescilla v. Moore 279 282 Welbie v. Phillips 129 West v. The Lord Delaware 357 Westby 's Case 152 Whitaker v. Thoroughgood 130 White v. Ewer 340 Whitmore Frances Vid. v. Weld al' 367 Williams v. Bond 238 Willows v. Lydcot 285 Woodward al' v. Fox 187 213 267 Wright v. Wyvell 56 A TABLE OF THE PLEADINGS IN THE SECOND PART A Actions upon the Case 1. IN a Special Indebitatus Assumpsit against an Attorney The Plaintiff declares That whereas T. S. was Indebted to the Plaintiff in a certain Sum of Money exceeding 12 l and the Defendant was indebted to the said T. S. in 12 l aut eo circiter The Defendant promised That if the Plaintiff would procure an Order under the Hand of the said T. S. for payment of the Money which he owed the said T. S. or any part thereof that then he would pay the same and avers that he procured such Order and shewed it to the Defendant and requested payment which he refused p. 69 After Imparlance the Defendant demurs to the Declaration 70 The Plaintiff joyns in the Demurrer 71 2 Against a Common Carryer for losing Goods delivered him to Carry 75 The Plaintiff declares that the Defendant is a Common Carryer and sets forth the Custom of England and the particulars of the Goods delivered to him to be Carried from B. to London and that he paid him for the Carriage and the Defendant lost them 75 76 Issue thereupon 77 3. Against a Sheriff for Returning Nulla Bona upon a Special Outlawry when the Party had Goods 84 The Declaration sets forth the Special Matter 85 86 Defendant pleads That a Prerogative Writ came out of the Exchequer whereupon the Defendant seized the Gâ—ods Nulla alia â—ona 87 The Plaâ—â—tiff demurs 88 4. For not Folding his Sheep upon the Plaintiffs Land according to Custom 136 The Declaration sets forth the special Custom and Cause of Action Issue thereupon 137 5. For Stopping up a Foot-way 185 The Plaintiff Declares That he was possest of and did inhabit in an ancient Messâ—age and that he had and ought to have a Foot-way for himself and his Servants over such a Close c. as belonging to his said Messuage and that the Defendant to disturb him in his way dug Ditches and Trenches cross the Way and erected Hedges and Fences cross it whereby he was hindred and deprived of his Way 186 6. Indebitatus Assumpsit upon several Promises For Moneys had and received for the Plaintiffs use For Money laid out for the Defendant For Money borrowed of the Plaintiff 254 For Money due to the Plaintiff for the Arrearages of an Account The Defendant hath not paid the said several Sums tho' requested c. As to the first and second Promises the Defendant pleads Non assumpsit infra sex annos as to the third and fourth Promises he pleads Non assumpsit 255 As to the first and second Promises the Plaintiff Replies and sets forth an Original sâ—ed forth iâ— a Clausum â—â—egit within the six years ea â—ntâ—ntione to â—eclare against him and that he promised within six years next before the Suing out of that Original The Defendant craves Oyer of the Original and hath it and says that the Writ will not warrant the Declaration 256 And prays Judgment whether the Plaintiff shall be admitted to set forth that Writ ad Warrantizandum Narracon ' suam The Plaintiff demurs to the â—ejoynder The Defendant joyns in Demurrer 258 7. For Words viz. Papist and Pensioner 263 The Plaintiff declares that he is a Protestant and never profest the Romish Religion that he hath been a Member of Parliâ—â—ent and did his Duty therein sets forth the Colloquium of the Plaintiff and of his being a Member of Parliament the first Words ex ulteriori malitia other Words 264 The Defendant pleads Not guilty 265 8. In Assumpsit the Plaintiff declares for a Runlet of Wine Another Indebitatus as well for Meat Drink Brandy and Tobacco as for Horse-Meat A Quantum meruit for Meat Drink Wine Brandy and Horse-Meat found and provided by the Plaintiff as an Innkeeper 279 Another Indebitatus for Goods sold An Insimul computasset the Plaintiff says that the Defendant hath not paid the several Sums inde producit sectam 280 The Defendant pleads an Outlawry in Bar and shews that J. S. impleaded the Plaintiff in the Common Pleas in an Action of Trespass and for not appearing she was waived and that the Outlawry is yet in force hoc paratus est verificare per Recordum Demurrer to the Plea Joynder in Demurrer 281 Assault Battery and Wounding Vide Trespass 2. Assignees Action by and against them Vid. Covenant 4. 5. Assumpsit Vid. Actions on the Case 1. 6. 8. Award vid. Debt 2. 4. 6. B Bankrupcy vid. Trover 1. 2. Bill of Exchange vid. Error 2. By Law vid. Debt 7. C Carryer Action against him Vid. Action on the Case 2. Clausum fregit Vid. Action on the Case 6. Covenant 1. BRought by the Executor of a Bishop against the Executors of an Assignee of the Executor of the Lessee 51 The Declaration sets forth the Indenture of Demise of a Rectory c. with the Consideration and Particulars demised The Covenants to repair and yield up The Lessees Entry c. 51 52 53 And assigns the Breach in permitting the Chancel c. to be out of Repair Profert in Cur ' the Lease 51 And Letters Testamentary of the Bishop 55 Defendants Demur generally 55 2. Against an Attorney upon Articles of Agreement for quiet enjoyment of Lands 59 The Declaration sets forth That the Defendant Covenanted pro ex parte of another Recites the Articles avers performance of all Covenants on the Plaintiffs part and assigns the Breach That the Plaintiff and his Servants were sued in an Action of Trespass in the Common Pleas and Damages recovered against him which he was compelled to pay sic idem the Plaintiff non quiete pacifice tenuit 60 The Defendant pleads non infregit Conventionem and Issue thereupon 61 3. By Executors upon certain special Covenants with their Testator for a Demise of Land which they set forth 97 They aver performance by the Testator in his life time and since his death by the
Plaintiffs and assign a Breach on the Defendants part Defendant pleads quod Testator nihil habuit in Tenementis The Plaintiffs demur to the Plea 98 4. By an Assignee of an Assignee against an Executor 117 The Declaration sets forth the Demise and that the Defendants Testator Covenanted to pull down three old Houses and build three new ones in their room and to keep the same in good repair and so deliver them up at the end of his Term 119 Sets forth the Plaintiffs Title to the Reversion by Assignment from the Lessor 119 120 And that the Tenant for years Attorned 121 That the Tenant in possession died and left the Defendant his Executor c. The the Plaintiff hath performed all and singular the Covenants on the part of the Lessor and his Assigns Protestando that the Defendant hath not performed those on the part of his Testator 122 He assigns a Breach in facto for permitting once of the new erected Houses to fall down before the end of the Term and other defaults in not Repairing Et sic the Defendant Convenconem non tenuit 123 The Defendant pleads performance specially to each Breach assigned and says that his Testator pull'd down the three Houses and built other three Houses in their room which he kept in Repairs and so delivered at the end of his Term 124 The Plaintiff demurs to the Plea as not being sufficient as to the leaving one House totally prostrate and ruined as the Plaintiff declared The Defendant joyned in Demurrer 125 5. Against the Assignee of an Executrix 228 The Declaration sets forth That the Plaintiff was possest of a Term for years yet in being by Indenture demised to the Testator for 21 years at the yearly Rent of c. 229 With a Clause of Re-entry and Covenants 230 That the Lessee entred made his Will made the Assignor his Exetrix and died That she proved the Will entred and assigned to the Defendant who entred and is still possest The Breach assigned was in the Non payment of Rent 231 The Defendant pleads That he assigned over before any Rent due 232 Demurrer to part of the Plea Joynder in Demurrer Judgment for the other part 233 Cesset executio Brevis de Inquirendo de dampnis quousque the Demurrer be determined 234 6. In Covenant the Plaintiff declares upon an Indenture of Demise from the Defendant 272 Profert in Curia The Demise Habendum Reddendum The Covenants on the Plaintiffs part 273 Covenants on the Defendants part for himself and Assigns to permit to make a Drain The Plaintiff entred and was possest and avers performance of all Covenants on his part The Breach assigned Eo quod the Defendant being possest of certain Tenements adjoyning for a Term of years did demise part of the Term to J. S. who entred 274 And died possest And Administration granted to his Widow who entred and was possest and took Husband The Husband and Wife entred and were possest and refuse to suffer the Defendant to make the Drain Et sic inde producit sectam 275 The Defendant pleads That he permitted the Plaintiff to make a Drain according to Covenant but the Plaintiff refused it The Plaintiff demurs The Defendant joyns in Demurrer 276 D Debt 1. IN Debt upon a Bond the Defendant craves Oyer of the Condition and pleads the Statute of Vsury 80 He sets forth the Usurious Contract the Money lent and the Bond in question given for it and that the Money for Forbearance exceeds the rate of 6 l per Cent. 81 The Plaintiff Replies That the Bond was made by a Scrivener in his absence who mistook the Condition and Traverses the Corrupt Agreement The Defendant demurs to the Replication The Plaintiff joyns 82 2. Debt upon a Bond to perform an Award 110 The Defendant craves Oyer of the Condition and pleads that the Arbitrators made no Award but that they named an Umpire who made no Award by Writing or Word of Mouth 111 The Plaintiff replies That true it is that the Arbitrators nor the Umpire by them first Chosen made any Award but refused whereupon the Arbitrators chose another Umpire who mad an Award within the time limitted 112 The Defendant demurs specially and assigns for Cause That it does not appear by the Replication that the Defendant had Notice that the Arbitrators had named the second Umpire or that he had any Authority to make any Umpirage The Plaintiff joyns in Demurrer 113 3. For Rent against an Executrix upon a Lease parol 176 The Declaration sets forth the Demise to the Defendants Testator of the 4th part of two Corn Mills and of one Mault-Mill under the same Roof to hold for one year sic de Anno in annum as long as both parties shall please paying Monthly for the same the Sum of 60 s 4 d ob so long as the said Testator should hold the Premisses and shews that he entred and held it for so long and that the Rent is due and unpaid for so many Months per quod actio accrevit 176 He also sets forth another Demise from year to year so long as both parties shall please at the yearly Rent of 20 l to be paid Quarterly by equal Portions the Tenants Entry the Rent arrear per quod actio accrevit Another Demise at Will laid Entry Rent arrear Actio accrevit 177 Another Demise at Will laid of the 4th part of another Mill Entry Rent arrear Actio accrevit the The Testator in his Life time nor the Executrix post mortem have not paid 178 The Defendant pleads in Abatement That the Tenant died Intestate and that Administration was granted to her and therefore ought to be sued as Administratrix and not as Executrix 178 The Plaintiff replies That the Defendant administred as Executrix before the granting the Administration to her The Defendant demurs to the Replication The Plaintiff joyns 179 4. Debt upon Bond. The Defendant craves Oyer of the Condition which is to perform an Award 219 Pleads That the Arbitrators made no Award The Plaintiff replies and sets forth the Award made in Writing and assigns a Breach in not paying a certain Sum of Money awarded 220 The Defendant demurs The Plaintiff joyns 221 5. Debt upon a Sheriffs Bond 234 The Defendant prays Oyer of the Condition which was to appear in Chancery to answer a Contempt Pleads the Statute of 23 H. 6. That an Attachment issued out of Chancery delivered to the Plaintiff being Sheriff who caused the Defendant to be arrested and after took the said Bond for his Appearance 236 Contra formam Statuti praedicti sic scriptum Obligatorium illud c. vacuum in lege existit The Plaintiff demurs to the Plea The Defendant joyns 237 6. Debt upon Bond Condition'd to perform an Award 239 The Defendant pleads that the Arbitrators made no award The Plaintiff replies and sets forth an Award made ore tenus 240 Notice of the Award and request for the Performance of it
her But Object All these words together to make a Slander Answ No man can assign me such a ratiocination a male divisis ad bene conjuncta I never heard it but in my Lord Straffords Case viz. that many Trespasses should make a Treason 'T is said he stirred up a Vexatious Action so does a Counsell when he Advises an Unsuccessful Action for the party is amerced pro falso clamore He will milk your Purse taken enunciatively signifies no more than Milking a Bull the Phrase is not come to an Idiom So of Filling his Pockets these Words might have been spoken of the Law and indeed they are spoken of the Thing not the Man or his Practice Dunce Corrupt c. concern the Profession but these words are applicable to any If he had said he were not a Good Fidler would that be Actionable Termino Paschae Anno 28 Car. II. In Communi Banco Hockett Uxor versus Stegold Ux ' TRespass for Assault Battery and Wounding of the Baron and Feme Vpon Not Guilty pleaded the Verdict was as to the Wife Guilty and quoad residuum Not guilty It was moved in Arrest of Judgment that the Baron and Feme could not joyn in an Action of Trespass for Beating them both 2 Cro. 355 655. 2. That there is nothing found as to the Beating of the Husband and so an imperfect Verdict for the Quoad residuum shall extend only to the other Trespasses done to the Wife Yelv. 106. Vid. Lib. which goes to both Points But the Whole Court were of Opinion that the Verdict had Cured this Mistake in the Action 9 Ed. 4. 51. 6 Acc ' Vid. Styles 349. Termino Paschae Anno 29 Car. II. In Communi Banco Herbert Perrot's Case HE having married a Wife that had an Inheritance of a considerable Value prevails upon her while she was but of the Age of 20 years to levy a Fine upon which the Use was declared to him and her and the Heirs of their two Bodies This was taken in the Country upon a Dedimus potestatem by Sir Herbert Perrot his Father and Mother After which the Wife died without Issue but had Issue at the time of the Fine It was moved in Court that this Fine might be set aside and a Fine imposed upon the Commissioners for the undue Practice and taking of a Fine of one under Age. But all the Judges agreed they could not meddle with the Fine but if the Wife had been alive and still under Age they might bring her in by Habeas Corpus and inspect her and set aside the Fine upon a Motion for perhaps the Husband would not suffer the bringing or proceeding in a Writ of Error And Justice Atkyns said These Abuses which are so frequent in taking Fines were occasioned by the Alteration of the Common Law made by the Statute of Carlisle 15 Ed. 2. that Fines which before were always to be done in Court may now be taken by Dedimus But the Common Law â—alls much short of the Order the Statute prescribes which requires that two Judges of the Court or one at the least should taking with him an Abbot Prior or Knight of good Fame take such Fines whereas 't is now the Common Practice to name Attorneys and Inconsiderable persons The Court were of Opinion That if a Commissioner to take a Fine do execute it corruptly he may be Fined by the Court for in relation to the Fine which is the proper Business of this Court he is subject to the Censures of it as Attorneys c. But they held that they had no power to Fine the Parties for a Misdemeanour in them North Chief Justice and Wyndham would have Fined Sir Herbert Perrot for taking a Fine of one under Age But Atkyns and Scroggs dissented because it did not appear that Sir Herbert Perrot did know she was under Age and it could not be discerned by the View she being Twenty Termino Sancti Hillarij Anno 29 30 Car. II. In Communi Banco Sir John Otwaie's Case IN an Ejectment upon a Special Verdict the Case was to this effect It was found that there was a Parish of Ribton and Vill of Ribton but not Coextensive with the Parish J.S. had Land in Tail in the Parish and out of the Vill and bargained and sold by Indenture with a Covenant to levy a Fine and suffer a Recovery to the Vses of the Deed of the said Land in the Parish of Ribton and the Fine and Recovery were only of Lands in Ribton and whether this would serve for the said Land in the Parish of Ribton was the Question Serjeant Maynard Argued that it would not and said that the Division by Parishes is wholly Ecclesiastical the Limits of which are equal to the Cure of the Parson But that of Towns and Vills is Civil and hath the same Limits with the Power of the Constable and Tythingman Where a Place is named in a Record of the Law and no more said 't is always intended a Vill tho' when a Vill and Parish are both mentioned and of the same Name they are intended Coextensive The later Authorities have admitted Fines to be levied of Land in a place known 1 Cro. 2 Ro. 20. But in a Recovery the Town must be mentioned But 't is Objected That here the Intention appears by the Deed that these Lands should pass But he Answered That cannot carry the Words further than they are contained in the Record Again it is Objected That the Deed Fine and Recovery do all make but one Assurance True but each hath its several effect the Deed serves to declare the Uses but it cannot make the Record larger than it is in the Subject Matter of it If a Formedon had been brought and the Fine and Recovery pleaded in Bar had it not been a good Reply to have said Nient comprise c. In 2 Cro. 120. Storke and Fox the Case was Walton and Street were two Vills in the Parish of Street and a Fine was of Lands in Street and Resolved that no Lands but in the Vill of Street tho' in the Parish did pass And so is Mo. 910. in case of a Grant 2 Ro. 54. If this were permitted it would introduce much Mischief for men would not know what passed by searching the Record but this should be known only by a Pocket Deed and so they in Reversion a Lord of Ancient Demesne c. would not know when to make their Claim and should be barred by reason of a Private Deed when the Record of the Fine or Recovery did not import that they were concerned Fines are to end Controversies and therefore must be certain and in that respect sometimes receive a stricter Construction than Grants A Fine of a Tenement is not good but ought to be reversed but a Grant of a Tenement will bind On the other side it was Argued that since Common Recoveries have been so much in practice and become the Common Assurances of mens Estates
out of Repair Secondly The whole is Sequestred whereas it ought to have been but in proportion to the Charge of Repairing and should be certainly expressed what it required Thirdly The Sequestration is to remain by the Sentence until the Judge should take further Order Whereas it ought to have been but until the Repairs had been done These Exceptions the Court held fatal and therefore gave no Opinion as to the Matter in Law but did incline that there could be no Sequestration for being made Lay Fee the Impropriation was out of their Jurisdiction and it was now only against the Person as against a Layman for not Repairing the Church And they said in case of Dilapidations the whole ought not to be Sequestred but to leave a proportion to the Parson for his Livelyhood Anonymus IN an Ejectment upon a Special Verdict the sole Point was Whether a Lease for a year upon no other Consideration than reserving a Pepper Corn if it be demanded shall work as a Bargain and Sale and so to make the Lessee capable of a Release And it was Resolved that it should and that the Reservation made a sufficient Consideration to raise an Use as by Bargain and Sale Vid. 10 Co. in Sutton's Hospitals Case Rozer versus Rozer AN Indebitatus Assumpsit pro parcell ' Corii ad specialem instantiam requisitionem of the Defendant sold and delivered to J.S. Et sic inde Indebitat ' existens the Defendant promised to pay Vpon Non assumpsit pleaded and a Verdict for the Plaintiff it was moved in Arrest of Judgment that there is no Promise laid and no Reason to presume a Promise when 't is the very ground of the Action tho' after a Verdict And admitting there were a Promise yet it being Collateral it did not make a Debt but should have been brought as an Action upon the Case Mo. 702. and Dyer 230. And hereupon Judgment was stayed Tho' as I hear in the King Bench about two years since between Danbey and Kent they held such a Case well enough after a Verdict Quaere Termino Sanctae Trinitatis Anno 33 Car. II. In Communi Banco Page versus Kirke IN an Action of Trespass upon Not Guilty at the Assizes in Suffolk a Verdict was found for the Plaintiff and 10 s Damages and 40 s Costs and Judgment entred accordingly And an Action of Debt was brought upon the Judgment and the Defendant pleaded Specially the Statute 22 23 of Car. II. ca. 9. against Recovering more Costs than Damages where the Damages are under 40 s in Trespass unless certified by the Judge that the Title was chiefly in question the Words of the Statute being If any more Costs in such Action shall be awarded the Judgment shall be void To which the Plaintiff Demurred and the Plea was held Insufficient because the Verdict was for 40 s Costs and not Costs increased by an Award of the Court. 2. If the Judgment were Erroneous yet it was hard to make it avoidable by Plea notwithstanding that the Words of the Statute are Shall be void Termino Sanctae Michaelis Anno 33 Car. II. In Communi Banco Onslowes Case HE brought an Action against a Bayliff being the chief Magistrate of a Corporation for that although he were chosen one of the Burgesses to serve in Parliament for the Corporation by the greater Number c. yet the Bayliff to disappoint him of sitting and to bring trouble c. upon him did return another Person in the Indentures together with him to his Damage c. Vpon Not Guilty pleaded and a Verdict for the Plaintiff it was moved in Arrest of Iudgment that the Action would not lie And of that Opinion were the whole Court viz. North Chief Iustice Wyndham Charlton and Levins for they said they had no Iurisdiction of this Matter the principal part thereof being a Retorn in Parliament No Action before the Statute H. 6. c. did lie against a Sheriff or chief Officer of a Corporation for a False-retorn and the Courts at Westminster must not enlarge their Iurisdiction in these matters further than those Acts give them That there were no Presidents of any Actions at the Common Law save Nevils Case in the late times and Sir Samuel Bernardistons Case both which miscarried In the Long Parliament there were a great many double Retorns but no Actions had been brought which is a great Argument that no such Action lies as Littleton argues upon the Statute of Merton of disparaging an Heir Termino Paschae Anno 35 Car. II. In Communi Banco The Lord Conwallis's Case THE Case was Isaac Pennington a Copyholder of the Mannor whereof my Lord Conwallis is now feised committed Treason in the matter of the Murder of King Charles the First and then about Anno 1655. surrendred into the hands of the Lord of the Mannor his Copyhold Lands to the use of some of his Children who were admitted In 1659. the Mannor was aliened to the Lord Conwallis then came the Act of Attainder 12 Car. 2. whereby Tychburn with other Regicides were attainted and thereby it was Enacted That all their Mannors Messuages Lands Tenements Rents Reversions Remainders Possessions Rights Conditions Interests Offices Annuities and all other Hereditaments Leases for Years Chattels Real and other things of that nature whatsoever they be shall stand forfeited to the King c. Provided that no Conveyance Assurance Grant Bargain Sale Charge Lease Assignment of Lease Grants and Surrenders by Copy of Court Roll c. made to any Person or Persons other than the Wife or Wives Child or Children Heir or Heirs of such Person or Persons c. After which Attainder c. the Lord of the Mannor caused the Lands to be seised and brought an Ejectment The First Point Was whether in Case of Treason or Felony the Lord can seise before Conviction or Attainder And the Court seemed to be of Opinion that no Seisure could be till Attainder without Special Custom but they agreed the presentment of the Homage was not necessary to precede a Seisure or to entitle the Lord to take the advantage of a Forfeiture but in case of a Capital Crime it would be unreasonable and inconvenient to permit the same to be tried or controverted in a Civil Action before the Conviction appeared upon Record Secondly Whether this were such a Forfeiture as the Lord was bound to take notice thereof for if no notice then the acceptance of the Surrender c. would not preclude him from taking advantage of the Forfeiture And the Court inclined that the Lord should be presumed to take notice in this Case as he shall in the Case of Failer of Suit of Court Non-paiment of Rent c. Vide 2 Cro. Matthews and Whetton 233. Thirdly Whether the Mannor being conveyed away before the Attainder shall purge the Forfeiture Iustice Levins said That although no advantage of this Forfeiture can be taken till Attainder yet after Attainder it has relation and
praemissis praed ' c. Et praedictus Burrowes ex quo ipse sufficien ' Joynder in Demurrer materiam in lege ad actionem suam praed ' manutenend ' superius replicando allegavit quam ipse parat est verificare Quam quidem materiam praedict ' Johannes non dedicit nec ad eam aliqualit ' respond ' set verification ' ill ' admittere omnino recusat idem Burrowes pet ' Judic ' debitum suum praed ' una cum dampnis suis occasione detentionis debiti illius sibi adjudicari c. Et quia Justic ' hic se advisare volunt de super praemissis praedictis priulquam Judic ' inde reddant dies dat' est partibus praed ' hicusque ă die sancti Michaelis in tres Septiman ' de audiendo inde Judic ' suo eo quod Justic ' hic inde nondum c. Trippet versus Eyres Trin. 4 Jac. Secundi Rot. IN Debt upon an Obligation of 300 l penalty The Defendant demanded Oyer of the condition which was thus viz. If the above bounden Iohn Eyre his Heirs Executors and Administrators for his and their parts and behoofs do in all things well and truly stand to and keep the Award of Francis Barlow and Robert Soresby c. Arbitrators indifferently named and elected as well on the part and behalf of the above-bounden Iohn Eyre as of the above-named Burrows Trippett to arbitrate and award of and concerning all Actions and Demands whatsoever at any time heretofore had made or depending between the said Parties or either of them so as the said Award be made and put in Writing or by word of Mouth on or before the 9th day of April next ensuing but if the said Arbitrators do not make such their Award by the time aforesaid that then if the said Iohn Eyre his Heirs c. do stand to and keep the Award and Umpirage of such Umpire as the said Francis Barlow and Robert Soresby shall nominate between the said Parties of and concerning the Premisses so as the said Umpire do make his Award or Umpirage of and concerning the Premisses by Writing or word of Mouth on or before the 16th day of April aforesaid then this Obligation to be void The Defendant pleaded Actio non quia dicit that the said Francis Barlow and Robert Soresby made no Award within the time aforesaid and the said Defendant ulterius dicit that the said Francis Barlow and Robert Soresby the 10th day of April in the year aforesaid at London in the Parish and Ward aforesaid did name one Francis Jessup Esq to be Vmpire between the aforesaid Burrows Trippet and the aforesaid John Eyre and the said Francis Jessup sic ut praefertur Umpirator nominatus did within the time to him limitted make no Award or Vmpirage of and concerning the Premisses hoc paratus est verificare unde petit Judicium c. The Plaintiff replies quod bene verum est that the said Arbitrators made no Award and that before the 16th day of April aforesaid Scilicet at the day and place in the Plea of the Defendant mentioned they did name the said Francis Jessup to be Vmpire between the said Parties but he further saith that the said Frincis Jessup adtunc ibidem for Umpiratorem penitus recusavit superinde the said Arbitrators postea adtunc ibidem nominaverunt quendam Cornelium Clarke Armig ' to be Vmpire between the said Parties and further saith that the said Cornelius Clarke postea ante praedict ' decimum sextum diem Aprilis scilicet apud London c. suscepto super se onere Umpiragii praedict ' ore tenus arbitravit ordinavit quod praedict ' Johannes Eyre solveret praedict ' Burrows Trippett septuaginta libras c. And that after payment the Parties should give mutual Releases and saith that the Defendant did not pay the said 70 l according to the said award hoc paratus est verificare c. To this Replication the Defendant demurred This Case was the last Term argued at the Bar and the Court took time till this Term to give their Opinions The sole Question was whether the award made by Clarke was good in regard the Arbitrators had before named Jessup to be Vmpire and tho' he refused it was insisted on for the Defendant that the Arbitrators were concluded to name another and so Cornelius Clarke had no Authority as Vmpire Powell Rokeby and Ventris were of Opinion for the Plaintiff Pollexfen Chief Justice for the Defendant The reasons the three Iustices went upon were that the Nomination of Jessup to be Vmpire did not make him Vmpire and that his refusal immediately upon his nomination made it amount â—o no more than a bare proposal to him and so to stand for nothing and then it did not conclude the Arbitrators but that they might name another The penning of the Condition of the Bond is to be observed the words being to stand to the Award of such Umpire as the Arbitrators should nominate and not of such Person as they should name to be Umpire So that there is in the Condition a description or qualification of the Person to whose award the Parties should submit viz. to such an one as should be Vmpire and Vmpire by the nomination of the Arbitrators Now Jessup tho' nominated yet was not Vmpire for his refusal hindred that and therefore doth not come within the qualification the Pleading is always suscepto super se onere Arbitrii so that 't is the acceptance that makes him Vmpire or Arbitrator But it is objected that the Arbitrators here have executed their Authority and t is done as fully as can be on their parts and therefore they have no power to name any other The Condition empowered them to name one but not to name a second Answ 'T is true when an Authority is once fully executed the Power is determined but here admitting it to be an Authority which Ventris said it was not properly to be called so there being no express Authority given to the Arbitrators but 't is rather a description or qualification of the Person which is to make the Award ut supra yet there is no compleat execution If a Letter of Attorney be to deliver Seisin and the Attorney deliver Seisin within the view which is no good Execution of his Authority yet sure that does not hinder him from delivering Seisin upon the Land an habere fac ' process was executed by the Sheriff in delivering a House and after it was over it was discovered that a Person was hid in a Room of the House whereupon he was turned out and the Sheriff delivered Execution again which was resolved to be well in Palmers Rep. 289. Submissions to Awards have been favourably construed because they tend to the end of Controversies it was surely the Parties meaning if the Arbitrators named a man that rejected the Vmpirage that this should not conclude them
The Defendant demurred and shewed for Cause that in the prescription for the Priviledge it was tempore quo non extat memoria which was said to be insensible and the course in pleading was to say a tempore cujus contrarium memoria hominum non existit Sed non allocatur for the Court took the words to be sufficiently expressing time out of mind and divers Presidents are in this manner Rastalls Entries 475 476 and 143. Shipley versus Craister IN an Action of Debt upon a Bond of 80 l the Plaintiff declared that the Defendant entred into a Bond to him who was then the Sheriff of Northumberland by the name of his Office of 80 l The Defendant demanded Oyer of the Condition which was that one Jenkin Wood should appear coram Dom. Rege apud Westm die Lunae proxime post Octab Pur. c. and then he pleaded a Release of all Demands under the Plaintiffs Hand and Seal made to him bearing date the 9th day of March in the third year of the raign of the late King James profert hic in Cur. the Release And to this the Plaintiff demurred Serjeant Jefferson offered to argue that this Bond being taken by the Sheriff according to the duty of his Office and for the benefit of the Plaintiff who brought the Action that his Release to the Obligor would not bar this Action but the Court said there was no colour but it should be a good bar But upon perusing of the Record it appeared that the Defendant had pleaded that the Plaintiff had released by his Deed of Release bearing date the 9th day of March whereas the Release produced in Court bore dath the 19th of the same March and this the Court held a material variance Note The King cannot discharge a Recognizance taken for Security of the Peace but after 't is broken he may 11 H. 7. 12. Holland versus Lancaster ss JOHANNES LANCASTER sumÌ„ fuit ad respondend ' Count in Replevin Thomae Holland de placito quare cepit averia ipsius Thomae ea injuste detinuit contra Vad ' Pleg ' c. Et unde idem Thomas ê‘ Robertum Bird Attorn ' suum queritur qd ' praed ' Johannes vicesimo secundo die Octobris Anno Regni Domini Jacobi secundi nuê‘ Regis Angl c. tercio apud Mounckton in Insula de Thanett in quodam loco ibidem vocat ' le Barnyard cepit averia videlicet octo Vaccas ipsius Thomae ea injuste detinuit contra vad ' pleg ' quousque c. Unde dic ' qd ' deteriorat ' est dampnum habet ad valenc ' decem librarum Et inde ê“ducit sectam c. Conuzance as Bailiff to the Dean and Chapter of Canterbury for a Distress for a Fine upon an Alienation Dean and Chapter seised of a Mannor in Fee in jure Ecclesiae Et praed ' Johannes Lancaster per Brian ' Courthop Attorn ' suum ven ' defend ' vim injur ' quando c. Et ut Ballivus Decani Capitalis Ecclesiae Cathedral ' Metropolitan ' Cantuar ' bene cognoscit captionem averiorum praedictorum in praedict ' Clauso in quo c. juste c Quia dic ' qd ' diu ante praedict ' tempus captionis averiorum praed ' ac eodem tempore quo c. praed ' Decanus Capital ' fuer ' seisit ' de Manerio de Mounckton cum pertin ' in Com' Kanc ' praed ' in dominico suo ut de feodo in jure Ecclesiae suae praedict ' Qd'que quidam Johannes Sabine Barronettus diu ante praed ' tempus quo J. S. seized in Fee of the locus in quo c. suit seisit ' de tribus Mesuagiis quatuor Horreis centum quadraginta Acris terrae octogint ' acris marisci cum pertin ' in Parochiis de Mounckton sancti Nicholai Atwade in Insula Thanett in Com' Kanc ' praed ' unde praed ' Clausum in quo c. est praed ' tempore quo And held it of the Dean and Chapter By fealty and Rent and Suit of Court c. necnon a tempore cujus contrar ' memoria hom ' non existit suit parcel ' in dominico suo ut de feodo illa tenuit de eisdem Decano Capitalo ut de Manerio suo praed ' per fidelitat ' reddit ' sex librar ' duorum solidorum sex denar ' un ' oboli singulis annis ad Festum Sancti Michaelis ArcÌ„hi solvend ' per servicium faciend ' sectae ad Cur ' ipsorum Decani Capituli Manerii sui praedict ' de tribus septimanis in tres septimanas apud Manerium ill ' The Dean and Chapter seized of the Services tenend ' de quibus quidem serviciis iidem Decanus Capitalus fuer ' seisit ' per manus praefat ' Johannis Sabine ut per manus veri tenentis sui videlicet de fidelitate secta Cur ' praedict ' ut de feodo jure ac de reddit ' praed ' in dominico suo ut de feodo Et praedict ' Johannes Lancaster ulterius dic ' A Custom for the Lord to have a year and halfs Rent upon every Alienation qd ' infra Manerium praed ' talis habetur consuetudo a tempore quo non extat memoria hom ' habebatur scilicet qd ' post quamlibet alienationem in feodo vel de statu liberi tenementi alicujus parcel ' terrae vel tenÌ„torum tent ' de Manerio praed ' Dom ' Manerii praed ' pro tempore existen ' cum talis alienatio acciderit habuit habere consuevit reddit ' un ' anni medietat ' reddit ' unius anni per quem tal ' terrae vel tenementa sic alienaÌ„t ' tent ' fuer ' de Manerio praedict ' nomine finis pro alienatione Et sic dictus finis pro alienatione sic ut praefertur per consuetudinem Manerii praedict ' solubil ' aut aliqua pars in aretro fuit insolut ' qd ' tunc Dom ' And power to distrain for it if in arrear Manerii praedict ' pro tempore existen ' de tempore in tempus ad omnia tempora duran ' toto tempore praed ' quando quoties necesse requisivit distrinxit usus fuit consuevit distringere in super terras tenementa praed ' de Dom ' Manerii praed ' ut de eodem Manerio tent ' sic ut praefertur alienat ' quousque dictus finis pro alienatione sic ut praefertur solubil ' Quousque it be paid solut ' soret Et praedict ' Johannes Lancaster ulterius dic ' qd ' praedict ' Decano Capitulo de Manerio praedict ' cum pertin ' ac praed ' Johanne Sabine de Mesuagiis Horreis Terris praed ' cum perrin ' Unde c.
the putting them to Sue severally as they must do at Law But here there is but part of them that Sue and then they appear to be Officers in the Ship that Sue and so not to have this Priviledge of the Common Seamen to Sue for it was alledged that this practice had been obtained but of late and in favour to them and here it appears that the Contract for the Wages was joynt with the Owners and they have sued but two of them and so they shall be charged with the whole But the Court denied the Prohibition for they have been ever alowed to proceed for Marriners Wages and tho' the Plaintiffs have an employment in the Ship as Purfer Boatswain or the like they are Marriners as well as others and may sue in the Admiral Court for their Wages and they having Iurisdiction shall proceed in their own way tho' different from our Law as to the joyning of all the Plaintiffs or Defendants and if the Proceeding be not according to their Law the Remedy lies there Note It was said by one of the Admiralty that tho' the Suit be against some of the Owners the course there is not to charge them with the whole but according to their proportionable parts Adams versus Cross IN a Replevin against Cross and two others for taking of divers Goods at Ware in quodam loco vocat ' a Messuage there The Defendants made Conusance as Bayliffs of Jane Cross and they say that before the Caption she was seised in her Demesn as a Fee at the Will of the Lord of the Mannor according to the Custom of the Mannor of and in the aforesaid Messuage which said Messuage is and time out of mind hath been parcel of the said Mannor and demised and demisable by Copy of Court Roll c. and being so seised 24 June 1687. she demised the said Messuage to the said Adams from thenceforth at Will reserving for so long time as the said Adams should hold it the yearly Rent of 8 l by equal Quarterly payments By virtue of which Demise the said Adams entred and was and yet is possessed and for 14 l being a Year and three Quarters Rent ending at the Feast of the Nativity of St. John Baptist last past they as Bayliffs to the said Jane distrained the said Goods being in the House c. To this Avowry the Plaintiff pleaded an insufficient and frivolous Bar and now took Exceptions to the Avowry for that the said Jane Cross is therein set forth to have been seised in Fee of the said Messuage at the Will of the Lord according to the Custom of the Mannor and sheweth no admission from the Lord whereas a Copyholder cannot plead his Estate without setting forth an Admission or Grant from the Lord 4 Co. 22. b. But the Court resolved in this Case there need not be shewn any Admittance for the Title did not come in question If one pleads a particular Estate for life or years generally the commencement of it is to be shewn but if a Lessee for years Let for a lesser Term reserving a Rent in an Action of Debt for the Rent he may set forth that at the time of the Lease he was possessed of the Land ê“ termino diversorum annorum adtunc adhuc ventur ' and being so possessed demised to the Defendant c. without shewing the beginning of his Term and how derived for 't is but an inducement to the Action And Judgment was given for the Avowant Clarke versus Tucket IN an Action of Trespass for entring of his House and taking of four Pewter Dishes of the Plaintiffs The Defendant pleaded the Letters Patents of Edward the 4th whereby the Company of Taylors in the City of Exeter were Incorporated and by the said Letters Patents they were to keep a Feast every year upon the Feast-day of St. John the Baptist in some place of the City belonging to them and there to make Orders and By-Laws c. And that the said Corporation at a Meeting held the 20th of March in the 21st year of the Reign of the late King Charles the Second did make an Ordinance or By-Law That if any person being Master or one of the Chief Wardens of the Corporation aforesaid at any of their Assemblies should reproach or revile the Master or any of his Brethren or any of the Common Council of the Corporation he should forfeit 6 s and 8 d And if any other person or persons of the said Bodies should revile or use any unhandsom Speech of the Master Wardens or any of the said Council he should forfeit 3 s and 4 d the said Fines to be levied by Distress upon a Warrant under the Corporation Seal and by sale of the Offenders Goods after Four days Notice given to the Fine so set forth and an Allowance of the By-Law by the Justices of Assize according to the Statute of Henry the 7th And further saith That the Plaintiff being a Member of the said Corporation and having Notice of the said By-Law did at an Assembly of the said Master and Wardens in the Common Hall say of the said Master and Wardens in the said Corporation these words viz. The Masters ipsos Magistrum Custod ' innuendo are all a Company of Pickpocket Rogues and divers other very scurrilous and reproachful Words were set forth to have been there spoken of the said Master and Wardens by the Plaintiff whereby the Plaintiff forfeited 3 s and 4 d by the said By-Law which was demanded of him and by him neglected to be paid by the space of six Days Whereupon the said Master made his Warrant directed to the Defendant commanding him to Levy the said 3 s and 4 d by distress and sale of the Goods of the Plaintiff And the Defendant by virtue of the said Warrant did enter into the Plaintiffs House being then open and took the Goods in the Declaration mentioned Nomine districtionis prout ei bene licuit And to this Plea the Plaintiff demurred and Judgment was given for the Plaintiff For a Corporation cannot make a By-Law to have a Forfeiture levied by the sale of Goods 8 Co. 127. nor for Forfeiture of Goods And here tho' the Defendant only Distrained neither is the Defendant charged with selling the Goods in the Declaration yet the By-Law being void as to the selling is void in toto and no Justification can be upon it It was also said at the Bar That the Distress was excessive to distrain so many Dishes for 3 s and 4 d Indeed a man cannot sever a Distress and therefore in some cases a Distress of great value as a Cart and Horses may be taken for a small matter because not severable but here he might have taken some of the Dishes But the Court did not regard that Exception because it did not appear of what value the Dishes were Again it was said That they ought to have made the By-Law upon St. John Baptists Day To
' est verificare Unde pet ' Judicium si praedictus Wilfridus acconem suam praedictam versus eum habere debeat c. Et praedictus Wilfridus dic ' quod placitum praed ' praedict ' Timoth ' Demurrer to the Plea superius placitat ' materiaque in eodem content ' minus sufficien ' in lege existunt ad ipsum Wilfridum ab accone sua praed ' versus pÌ„fat ' Timotheum habend ' praecludend ' quodque ipse ad placitum illud modo forma praed ' placitat ' necesse non habet nec per legem terrae tenetur respondere Et hoc parat ' est verificare Unde pro defectu sufficien ' placiti in hac parte Idem Wilfridus pet ' Judicium debitum suum praedict ' una cum dampnis suis occone detenconis debiti illius sibi adjudicari c. Et praed ' Timotheus ex quo ipse sufficien ' The Plaintiff joyns in Demurrer materiam in lege ad praedict ' Wilfridum ab accone sua praed ' versus ipsum Timotheum habend ' praecludend ' superius allegavit quam ipse parat ' est verificare Quam quidem materiam praedict ' Timotheus non dedic ' nec ad eam aliqualit ' respondet set verificaconem ill ' admittere omnino recusat ut prius pet ' Judicium Et quod praedict ' Wilfridus ab accone sua praedict ' versus ipsum Timotheum habend ' praecludatur c. Et quia Justic ' hic se advisare volunt de super praemissis praedictis priusquam Judic ' inde reddant dies dat' est partibus praedict ' hic usque à die Sancti Michaelis in tres Septimanas de audiendo inde Judicio suo eo quod iidem Justic ' hic nondum c. Lawson versus Haddock IN an Action of Debt upon a Sheriffs Bond the Condition was That the Defendant should appear coram Rege Regina in Cancellaria apud Westm in Quinden ' Paschae which was the Return Day of an Attachment issued out of Chancery against him for a Contempt The Defendant pleaded the Statute of 23 H. 6. which inter alia Enacts That the Sheriffs c. should let to Bail such persons as were Arrested and in their Custody by virtue of any Writ Bill or Warrant in any Action Personal or upon any Indictment of Trespass And upon Condition that they should appear at the Day and Place in the Writ c. mentioned and that all Bonds taken in other Form should be void And the Defendant further said That by an Attachment awarded out of Chancery against him the Plaintiff being then Sheriff was commanded to have the Defendant coram Rege Regina in Cancellar ' in Quinden ' Pasch ' ubicunque Cur ' illa tunc foret in Anglia and the Plaintiff took him by virtue of the said Writ and detained him till he had given the said Bond with Condition as aforesaid pro easiamento favore c. Which said Bond the Plaintiff colore Officij took of the Defendant contra formam Statuti c. sic dicit quod scriptum Oblig ' vigore Statuti praedict ' vacuum in lege existit hoc parat ' est verificare c. To this the Plaintiff Demurred First The Statute saith That where the party is in Custody by virtue of any Writ c. in any Action or upon any Indictment of Trespass And an Attachment for Contempt out of Chancery is not within the words of the Statute in the 3 Cro. Johns and Stratford 309. Taken by a Serjeant at Mace upon Process out of the Grand Sessions held not within the Statute in the 3 Leon. 280. Secondly The Condition is to appear coram Rege in Cancellar ' apud Westm instead of ubicunque as the Writ is For this vide Styl 234. Burton and Law and Mo. 430. Corbett and Downing As to the first the Court inclined That Attachments out of Chancery were within the Statute 'T is the constant Practice for Sheriffs to take Bail in such Cases Vid. Styl 234. Rolls's Opinion according As to the second Point 't is true That such Bonds have been judged void but of later times the Court have not been so strict upon the Wording of such Bonds And a Case was Cited to have been in B. R. Trin. 22 Car. 2. Rot. 914. where the Condition of a Sheriffs Bond was to appear coram Justiciariis nostris de Banco and not said apud Westm and yet held good But the Court gave leave to speak further to the Case at Bar. Williams versus Bond. A Prohibition to a Suit in the Ecclesiastical Court by the Defendant Churchwarden of the Parish Church of St. Peter in Hereford against the Plaintiff charging him with the Repairs of the Chancel of the said Church as Owner of the Priory-House to which Owners it hath belonged as was pretended tâ—â—e out of mind to Repair the said Chancel whereas there never was any such Custom as the Plaintiff suggested and set forth in his Declaration upon the Prohibition And that he had so alleadged and pleaded in the Ecclesiastical Court to hinder the Proceedings upon and trying such Custom in the Court Ecclesiastical which the Judge there refused to admit but doth proceed to Try Determine and give Sentence against the Plaintiff upon the said pretended Prescription whereas all such Custom ought to be tryed at Law c. The Defendant after a Traverse to any Proceedings after the Prohibition delivered pro Consultatione habend ' saith That all the Proprietors of the said Messuage called the Priory-House have Repaired the said Chancel time out of mind hoc parat ' est verificare c. unde petit Judicium breve de Consultatione And to this the Plaintiff Demurred And the Court were of Opinion that a Consultation should be granted for they may sue upon this Prescription and try it there as a Suit may be in the Ecclesiastical Court for a Modus decimandi and tho' the Parson is of Common Right to Repair the Chancel yet it may be upon a particular man's Estate by Prescription Vide 1 Brownl 16. 1 Roll. 126. Poph. 197. and Latch 217. Judith Hanson versus Liversedge Ebor ' ss SAMUEL LIVERSEDGE nuper de Mirfield in Com' praedict ' Yeoman alias dict' Debt upon Bond. Samuelem Liversedge de Mirfield in Com' Ebor ' Panificem Sum ' fuit ad respondend ' Judithae Hanson Vid ' de placito quod reddat ei Centum libr ' quas ei debet injuste detinet c. Et unde eadem Juditha per Thomam Beaumont Attorn ' suum dic ' quod cum praedict ' Samuel vicesimo quinto die Julij Anno Domini Millesimo sexcentesimo octogesimo nono apud Wakefield per quoddam scriptum suum Obligatorium concessiss se teneri eidem Judithae in praedict ' Centum libr ' solvend ' eidem Judithae cum inde requisit ' fuiss Praed ' tamen Samuel licet
c. To this the Plaintiff Demurred First This is a Grant by Richard to Nicholas and so void without Attornment or Enrollment and being intended to Enure as a Grant shall not work as a Covenant to stand seised Secondly The Defendant hath pleaded it as a Grant and what he saith after in the Avowry to set forth how the Deed should work is vain and idle As to the first Point the Court held this Deed having no Execution to make it work as a Grant it shall operate as a Covenant to stand seised Mod. Rep. 178. Sanders and Savins Case A Grant of a Rent to his Kinsman for Life there being no atturnment it raised an use by way of Covenant but the pleading the Court held impertinent for instead of pleading of this Grant according to the effect of it in Law viz As a Covenant to stand seised He sets forth the matter in Law and haw it ought to be construed and because they would not countenance such vain and improper pleading the Case was adjourned Biddulph versus Dashwood IN an Action of Debt for 90 l The Plaintiff declared quod cum recuperasset coram Justiciariis de Banco apud Westm ' 90 l ê“ dam ' against the Defendant prout ê‘ Record process ' quae Dom ' Rex Regina coram eis causa Erroris in eisd ' corrigend ' Venire fac ' quae in Cur ' dicti Domini Regis Dom ' Reginae in pleno robore vigore remanent minime revocat ' plen ' apparet per quod actio accrevit c. To this the Defendant Demurred supposing that the Iudgment was suspended so far that an Action of Debt could not be brought upon it pending the Writ of Error But the Court held if the Defendant could insist upon this he ought not to have Demurred but to have pleaded Specially and demanded Iudgment if the Plaintiff should be answered pending the Writ of Error So Iudgment was given for the Plaintiff Termino Sancti Hillarij Anno 2 3 W. M. In Communi Banco Anonymus TRespass quare clausum fregit diversas petias Maheremij cepit c. Iudgment by default upon the Writ of Enquiry returned The Iudgment was stayed for the incertainty of the Declaration James Tregonwell Vid. Executrix of John Tregonwell against Sherwin IN an Action of Debt for Rent the Plaintiff declared in this manner That Frances Fen and John Tregonwell the 23 of Jan. 24. Car. 2. did Demise to the Defendant certain Lands for 21 years reserving 20 l per Annum to the said Frances during her Life and after her Decease to the said Tregonwell his Executors and Administrators and set forth Frances to be Dead and that the said Tregonwell being possessed of the Reversion of the Premisses pro Termino Annor ' adtunc adhuc ventur ' the 4 of May 30 Car. 2. made his Will and thereof made the Plaintiff his Executrix and died and that she took the Executrixship upon her and by vertue thereof became possessed of the said Reversion and for 30 l for a year and halfs Rent accruing after she brought the Action The Defendant pleaded an insufficient Plea and the Plaintiff Demurred And Iudgment was given against the Plaintiff upon the insufficiency of the Declaration for there is no good Title set forth to the Plaintiff for the Rent for t is not said that Tregonwell was at the time of the Lease possessed of the Lands pro Termino Annorum c. but that at the time of making his Will and that might be upon the creating of such Estate since and the Rent might not belong to the Reversion And tho' it was said his reserving the Rent to his Executors carried an intendment that he had a Term for years only yet that was held not to be sufficient and Iudgment was given for the Defendant Sir Lionel Walden versus Mitchell Hunt ' ss JOHANNES MITCHELL nuper de Huntington in Com' praed ' Maulster Attach ' fuit ad respondend ' Action for Words viz. Papist and Pensioner spoken of one who had been a Member of Parliament â—n the time of King Charles the Second Lionello Walden Mil ' de placito Transgr ' super Casum Et unde idem Lionellus per Robertum Clarke Attorn ' suum queritur quare cum praed ' Lionellus bonus verus pius fidelis honestus subditus ligeus domini Regis dominae Reginae nunc existit ac ut bonus verus pius fidelis honestus subditus ligeus eorundem domini Regis dominae Reginae nunc ê“genitorum suorum à tempore Nativitat ' suae hucusque se habuit gessit gubernavit bonorumque nominis famae conversaconis gesture tam in t ' quamplurimos venerabiles fideles subdit ' dictorum domini Regis dominae Reginae nunc ê“genitorum suorum quam omnes vicinos suos per tot ' tempus praed ' habit ' not ' reputat ' fuerat per tot ' tempus praed ' The Plaintiff a Protestant fuit adhuc existit verus professor Religionis Protestan ' Reformat ' per leges hujus regni Angliae stabilit ' ill ' sincere proficiend ' exercen ' Divina Servitia in Ecclesia in paroch ' sua seu aliqua Ecclesia capello aut alio usuali loco Communis precacon ' secundum usum Ecclesaie Anglicanae lect ' semper frequentans audiens Ecclesiae Romanae nunquam reconciliat ' And never a Professor of the Romish Religion fuit neque Religionem Romanam unquam profeffus fuit neque ad Missam unquam ivit Cumque praed ' Lionellus fuit extit un ' Burgens ' That he hath been a Member of Parliament sive Membr ' Parliamenti pro Villa de Huntingdon ' in Com' Hunt ' in Parliamento domini Caroli secundi nuper Regis Angi ' inchoat ' tent ' apud Westm ' in Com' Midd ' octavo die Maijanno regni sui decimo tertio ut hujusmodi Burgens ' sive Membr ' Parliamenti per tot ' idem Parliament ' usque dissolucon ' inde juste fidelit ' And did his Duty therein justly deservivit debitum fiduciae officij sui Burgens ' Membr ' ejusdem Parliamenti per tot ' idem tempus performavit Idemque Lionellus pro performacone fiduciae officij sui praedict ' Burgens ' sive Membr ' Parliamenti praedict ' alijs Causis diversa itenera ad Civitat ' London ' Westm ' à Villa Hunt ' praedict ' fecit performavit praed ' tamen Johan ' praemissorum non ignarus set machinans malitiose intendens eundem Lionellum non solum in bonis nomine fama credenc ' reputacone ' suis praedict ' multiplicit ' laedere detrahere penitus distruere verum etiam ipsum Lionellum infra poenas poenalitat ' contra Papistas subdit '
hujus regni qui Missam frequentant vel audiunt per Statut ' hujusmodi regni Angliae inde edit ' provis ' inferre causare octavo die Decembr ' Anno Domini Millesimo sexcentesimo octogesimo octavo apud Hunt ' praedict ' in Com' Hunt ' praed ' Colloquium habens cum quodam Thoma Waddington tunc Servien ' Colloquium ipsius Lionelli in aperto publico Mercato ibidem tunc tent ' de concernen ' eodem Lionello Religione sua de ejus existen ' un ' Burgens ' Of the Plaintiff and of his being a Member of Parliament sive Membr ' Parliament ' praed ' pro Villa de Hunt ' praedict ' in praesentia auditu quamplurimarum person ' in eodem publico Mercato adtunc ibidem congregat ' praesen ' existen ' haec falsa ficta scandalosa Anglicana verba sequen ' praefat ' Thomae Waddington servien ' ipsius Lionelli tunc ibidem existen ' de eodem Lionello falso malitiose palam ê“ublice dixit retulit propalavit alta voce publicavit pronunciavit videlicet Your Master ipsum Lionellum innuendo is a Papist The first words when he ipsum Lionellum innuendo is at home he ipsum Lionellum iterum innuendo goes to Church but when he ipsum Lionellum iterum innuendo is at London he ipsum Lionellum iterum innuendo goes to Mass Missam in Ecclesia Romana performat innuendo Sir Iohn Cotton quendam Johan ' Cotton de Stratton in Com' Bedf. Baronet ' al' Burgens ' sive Membr ' Villae de Hunt ' praedict ' in Parliamento praedict ' innuendo and he ipsum Lionellum iterum innuendo were both Pensioners ipmÌ„ Johan ' Cotton Lionellum pencÌ„ones habere de praedict ' nuper Rege Carolo secundo ad consentiend ' voces suas dand ' in Parliamento pro confeccone legum statut ' in oppressione subdit ' ipsius nuper Regis innuendo all the time of the Long Parliament praedict ' Parliament ' in quo idem Lionellus praedict ' Johannes ut praefertur fuerint Burgens ' sive Membr ' innuendo praedictusque Johan ' ex ulteriori malitia sua postea scilicet eisdem die anno ult ' menconat ' apud Hunt ' praedict ' super quod ' al' Colloquium adtunc ibidem habit ' cum praedict Ex ulteriori malitia Thoma Waddington adtunc ibidem Servien ' ipsius Lionelli existen ' de concernen ' eodem Lionello Religione ipsius Lionelli de suo existen ' un ' Burgens ' sive Membr ' Parliamenti praedict ' pro Villa de Hunt ' praed ' in praesentia auditu quamplurimarum aliarum person ' in publico aperto Mercato ibidem assemblat ' existen ' ad intencon ' praedict ' haec alia falsa ficta scandalosa Anglicana verba sequen praed Thoma Waddington adtunc ibidem Servien ' ipsius Lionelli ut praefertur existen ' de eodem Lionello falso malitiose palam publice dixit retulit asseruit alta voce publicavit pronuncavit videlicet Your Master ipsum Lionellum cujus Servien ' Other words praed ' Thom ' ut praefertur tunc fuit innuendo is a Papist when he ipsum Lionellum iterum innuendo is in the Country he ipsum Lionellum iterum innuendo goes to Church but when he ipsum Lionellum iterum innuendo is at London he ipsum Lionellum iterum innuendo goes to Mass ipsum Lionellum ad audiend ' Missam in Ecclesia Romana performat ' ivisse innuendo Sir Iohn Cotton praedict ' Johan ' Cotton ' iterum innuendo and he ipsum Lionellum iterum innuendo were both Pensioners all the time of the Long Parliament Quorum quidem falsorum fictorum scandalosorum malitiosorum verborum diccon ' propalacon ' praetextu idem Lionellus non solum in bonis nomine reputacone fama suis praedict ' gravit ' laesus deteriorat ' est verum etiam diversas grandes denar ' sum ' pro sedacone quamplurimorun falsorum rumorum de ipso Lionello sparsor ' expendere diversos corporis sui labores subire coact ' compulsus fuit ad dampnum ipsius Lionelli ducent ' libr ' inde produc ' sectam c. Et praedict ' Johannes ê“ Richardum Lee Attorn ' suum ven ' The Defendant pleads Not guilty defend ' vim injur ' quando c. Et dic ' quod ipse in nullo est culpabilis de praemissis superius ei imponit ' modo forma prout praedict ' Lionellus superius versus eum queritur de hoc pon ' se super patriam praedict ' Lionellus similitur Ideo Praecept ' est Vic' quod Venire fac ' hic à die Sanctae Trinitatis in tres Septiman ' duodecim c. per quos c. Et qui nec c. ad recogn ' c. quia tam c. Sir Lionell Walden versus Mitchell THe Plaintiff Declared in an Action for Words That he was a true professor of the Protestant Religion according to the Reformation and Laws of England and that he had been a Member of the Parliament begun the 8th of May 13 Car. 2. and that the Defendant premissor ' non ignarus 8 Decemb. Anno Domini 1688. having discourse of the Religion of the said Plaintiff and of his having served in the said Parliament said to T. W. Servant of the Plaintiff your Master is a Papist when he is at Home he goes to Church but when he is at London he goes to Mass Sir John Cotton and he were both Pensioners innuendo that the said Sir John Cotton and the Plaintiff received Pensions of King Charles the Second for giving their Votes in Parliament for Laws and Statutes in oppression of the People at the time of the long Parliament innuendo the Parliament in which the Plaintiff and Sir John Cotton served and upon not Guilty pleaded a Verdict was found for the Plaintiff It was moved in Arrest of Iudgment that none of these words were Actionable 1 Leon 336. To call a Man Papist said by Wray Chief Justice there that it is not Actionable unless spoken of a Bishop so in Savage and Cooks Case 1 Cro. 192. T is true where spoken of a Person in some eminent Office t is otherwise as Sir John Knightlies Case who was a Justice of Peace and Deputy Lieutenant Hill 33 34. Car. 2. in C. B. rot 1518. He had Iudgment in an Action for calling of him Papist and it was affirmed in a Writ of Error brought in B.R. And the Case of Peake and Tucker which was Trin. 1. Jac. 2. B. R. Rot. 838. Where the Plaintiff was a Merchant And the Defendant said of him he is a Rogue a Papist Dog never a Rogue in Town would have made a Bonfire but he Note those words were spoken the day
that King James came to the Crown and the time is supposed to have influenced the Opinion of the Court and the Plaintiff had Iudgment After having heard the Case several times spoken to the Court gave Iudgment for the Plaintiff principally for the words that he went to Mass for by the Statute of 23 Eliz. cap. 4. the Offender is to Forfeit 100 l and he imprisoned for a year so that they expose him to Corporal Punishment It is held that to say a Man committed petit Larceny is Actionable Allens Rep. 11. The Chief Justice here said That where a Man had been in an Office of Trust to say that he behaved himself corruptly in it as it imported great Scandal so it might prevent his coming in to that or the like Office again and therefore was Actionable Note The time these words were spoken was taken notice of viz. between King James the Second's Desertion of the Kingdom and the Proclaiming of the King and Queen when to call a Man Papist would have exposed to him the danger of the Rabble whereupon Judicium pro Quer. Lade versus Parker VIde ante Termino Michal ' ult It was this Term moved again That the pleading dedit concess ' Nicholao Marsh filio suo Annuitatem praed ' habend ' praed ' Nicholao heredibus assignat ' suis ad opus usum dicti Nicholai haered ' assign ' suor ' per quod vigore Statuti de usibus in possession ' transferen ' the said Nicholas became seised c. was sufficient and the words quae quidem concessio c. quod vide ante were to be rejected as Surplusage And of that Opinion were Powell Rokeby and Ventris But Pollexfen Chief Justice held strongly to the contrary and he agreed this Deed being to the Son with an express Consideration of natural affection tho' Money was also part of the Consideration mentioned that it would work as a Covenant to stand seised But then the Parties ought to have pleaded it as a Covenant to stand seised according to the legal construction of such a Deed where there is no Execution at Law whereas here they have pleaded it as a Grant at the Common-Law The other Judges differing in their Opinion said it was sufficient to plead the Deed as it was worded and if there were sufficient matter to intitle the Avowant Iudgment ought to be given accordingly and then the Avowant concludes that he became seised by the Statute of Vses which shews he intended to take the operation of the Deed that way so Iudgment was given for the Avowant Chief Justice contra Note Serjeant Levins cited the Pleading in Foxes Case 8 Co. where the words Demise and Grant in consideration of Money amounted to a Bargain and Sale it being of an Estate for years without enrolment it was pleaded dimisit concessit ad firmam tradidit non Barganizavit Woodward c. versus Fox IN an Action sur Assumpsit for 200 l received to his use Vpon non Assumpsit a Special Verdict was found quod vide ante Term ' Trin ' ult ' and the Case this Term came to have the resolution of the Court The case upon the Special Verdict is to this effect an Arch-deacon maketh a Register of the Court belonging to his Arch-deaconry in Consideration of 100 l The Bishop of the Diocess who was also Patron to the Archdeacon supposing the Office to have been void by the Statute of 5 and 6 Edw. 6. against the Sale of Offices relating to the Administration of Iustice granted the said Office of Register to the Defendant and the said Grant was confirmed by the Dean and Chapter The Archdeacon after the Death of that person to whom he had sold the Office ut supra Grants the said Office to the three Plaintiffs for their Lives and the Life of the longer liver of them the Plaintiffs before any Office found for the King or any Record shewing the Sale of this Office obtains a Grant of it from the now King and Queen The Court were all of Opinion for the Plaintiffs The Court did not speak to two Points stirred in the case viz Whether this Office could be granted for three Lives or whether it was within the said Statute of 5 and 6 Edw. 6. because they were in a manner agreed at the Bar and the Points setled But the two main Points in the Case which were spoken to are First Where an Archdeacon sells the Office of Register in the Court of the Archdeaconry whether by the Statute of 5 and 6 Edw. 6. the Grant and Nomination to this Office shall come to he Crown or whether it shall go to the Bishop of the Diocess Secondly Admitting the Right to be in the Crown whether the King and Queen can make a Register till Office found or that the Title appeareth by some matter of Record 1. It was resolved that the Right of appointing the Register it being Forfeited by the said Statute of 5 and 6 Edw. 6. did come to the King and Queen It is a Rule laid down by Manwood Chief B. Mo. 238. That where a Statute giveth a Forfeiture either for Nonfesans or Mis-fesans the King shall have it so in 11 Co. 68. This follows the Reason of the Common-Law in case of things which are nullius in bonis where no visible Right appears the Law giveth them to the King Siderfin 148 86. As Derelict Land Treasure Trove and a great number of such like instances may be cited from the Books so it is in Extraparochial Tithes tho' things of an Ecclesiastical nature 2 Inst 646. Cawdry's Case 5 Co. 18. Nay if the Right lie equal between the King and Subject the Kings Title hath the preference by Law Detur digniori is a Rule 9 Co. 24. In case of concurrence of Titles between the King and Subject It was objected That this held in valuable things and matters of profit to the Crown But the Court said there was no such distinction made in the Books and many Prerogatives c. were given to the King for the publick good and interest of the Government as well as for encrease of the King's Treasure There is no exception out of this construction of Forfeitures upon Penal Statutes unless they are in recompence for the Damage suffered by a Subject as the Statute of 2 Ed. 6. that giveth the Forfeiture of the treble value for not setting out of Tithes 2 Inst 650. And this follows the Reason of the Common Law that Fines and Penalties for Offences at Law go to the King as the Head of the Government and that was the second Reason the Court went upon that the Offence for which this Forfeiture is inflicted is principally against the King By the preamble of the Statute it appears to be made for avoiding of corruption in Offices and abuses in the Administration of Justice Now the King is the Fountain of Justice and that Ecclesiastical as well as Civil in
the case of Proxies Davis Rep. 4. It is said the King has power and that by the Antient Law of the Realm to Visit Reform and correct all Abuses and Enormities in the Iurisdiction Spiritual so that an Offence of this nature is a Violation of the Kings Justice and a Transgression of the Rules of his Administration This is indeed the case of all Crimes of a publick nature the King is most evidently injured by them the Indictments run contra coronam dignitatem c. Now who should have the Forfeiture but he that hath the greatest share in the Injury Again by giving of this Forfeiture to the King the end and design of the Statute is like to be best answered By the Preamble the Statute appeareth to be made that worthy persons might be advanced to places where Iustice was to be administred and who is best to be entrusted with this but the King The Court having given these Reasons they came to consider what had been insisted on at the Bar in the behalf of the Bishop It was said that all the Jurisdiction Ecclesiastical in the Diocess was originally placed in the Bishop and the case of Gastrill and Jones 2 Ro. Rep. 646 647. was cited where it is said That the Iudicial power of the Archdeacon was derived from the Bishop he is called Vicarius Episcopi and Oculus Episcopi T is true there are some Archdeacons that have Iurisdictions peculiar and exempt but that is by Prescription or Custom these are taken notice of by Godolphin But there is nothing found of that in the Verdict and so must be taken to be the common case of an Archdeacon and that was agreed It was said this offence was reckoned Simony in the Canon Law And the Bishop had the correction of it as in Smithes Case Owens Rep. 87. This was compared to the Cases of inferiour and subordinate Officers which when they are forfeited the superiour takes advantage as in the Earl of Pembrooks Case and Sir H. Bickly Popham 119. The Keeper of a Walke in a Forest forfeited this went to him that had the custody of the Forest so in Bridgman's Rep. 27. He that hath Liberty of a Park in a Forest when forfeited it goeth to the Lord of the Forest 39 H. 6. 32. The Keeper of the Marshalsey of the Kings Bench forfeited his Office the Duke of Norfolk Great Marshal of England took advantage of it To these Cases it was said by the Court That they differed much from the Case at the Bar. First In the Cases cited the Inferior Officer is put in by the Superior and in some Cases to answer for his miscarriage ubi respondeat Superior they are Offices incident as the County Clark to the Sheriff Mittons Case 4 Co. and Scroggs Case of the Exigenter to the Chief Justice of the Common Pleas Dyer 175. But here the Bishop doth not put in the Register of the Archdeacons Court He may make one to supply that place if it falls void when the Archdeaconry is vacant but then the next Archdeacon removeth him and puts in another Secondly The Forfeitures in the Cases cited were upon Breaches of Conditions in Law annexed to the Offices and t is a Rule in Law that the Grantor is to take advantage of the Breach of all Conditions but we are in case of a Forfeiture for offending against an Act of Parliament And the Court said tho' it might be supposed originally the Jurisdiction within the Diocess was lodged in the Bishop yet the Archdeacons Court hath time out of mind been settled as a distinct Court 4 Inst 339. and the Statute of 24 H. 8. cap. 12. takes notice of the Consistory Court which is the Bishops Court and the Archdeacons Court from which there lies an Appeal to the Bishops Court in 2 Ro. Rep. 150. Chivertons Case The Archdeacon is said to have a Court of himself and that the Courts of Westminster take notice thereof Thâ—s may be resembled to the Case of the Torn and Leet in the County the Leet is supposed to have been derived out of the Torn and yet upon the Forfeiture of a Leet it shall not go to the Sheriff As to the second Point it was resolved by the Court That the King might in this Case make a Register before Office found It was agreed That where an Estate of Freehold was forfeited to the King by Act of Parliament that an Office would be requisite to vest it in the King and that by the Statute of 5 Edw. 6. against the sale of Offices all the Estate and Interest c. of the Offender is forfeited But Pollexfen Chief Justice conceived this was not an Estate in the Archdeacon but only a Power to appoint a Register and in the nature of a chose en Action like the case of Offices in the King where the King may grant or nominate to the Office but hath not the Office in him to use or execute But he conceived and with that the rest of the Court agreed that however as to the present vacancy the right to supply that was a Chattel separate from the Inheritance and the King might supply the present avoidance before any Office found tho' it be admitted that the right of nomination in point of Estate should not vest in the King before Office found Where the Kings Tenant dies seised of an Advowson or in case of an Outlawry tho' the Estate is not in the King before Office yet if the Church becomes void the King shall present before Office 20 Edw. 4. 11. The case so put of an Advowson appendant Stamf. Prerog 54. B. T is a Transitory Chattel the present avoidance Lanes Rep. 43 64. 1 Ro. Rep. 326. and Jones Rep. 425. So the Body of the Ward is in the King before Office In Case of Simony the King shall present without Office Sed nota 31 Eliz. giveth the Presentation pro hac vice only And the Court said that the Verdict found that the Plaintiffs had a Grant from the Archdeacon also so that if nothing be in the King till Office it must remain in the Archdeacon so his Grant will be good till Office found There are no disabling words in the Statute but only shall Lose and Forfeite so quacunque via data the Plaintiffs ought to have Iudgment Harris versus Parker Ante ult ' Term. IN an Action of Debt for 99 l Rent the Plaintiff Declared upon two Demises which he laid at the Parish of St. Martin in the Fields in Middlesex of a Messuage and divers Lands quae praemissa sunt struat ' jacent ' existent in super acclivitatem de Hampstead Anglicè the rise of Hampstead Hill to hold for seven years reserving upon each Demise eighteen pounds yearly Rent The Defendant pleaded Actio non quia dicit quod praed ' Johannes Harris tempore dimiss ' praed ' nihil habuit in Tenementis praedict ' unde c. The Plaintiff Replied That long before the
Hazard a general Declaration good without setting forth Cross Considerations 175 A Promise to one Part being void cannot stand good as to the other 224 Attorney An Attorney has Priviledge to lay his Action in Middlesex because of his Attendance 47 Averment Whether an Agreement may be pleaded and averr'd to shew the meaning of the Parties and that the Condition of a Bond may be taken accordingly 108 Quarter-days may be averr'd upon these General Words The usual Feasts 141 Authority See Vmpire Where an Authority is once fully Executed the Power is determined Not so where there is a compleat Execution 115 Where a man is vested with a bare Authority his denial or refusal to execute it does not conclude him but that he may execute it afterwards 116 Secus where he is vested with an Interest 117 Award See Arbitrament B Bail See Pleading THe Plaintiff may release his Action after the Sheriff hath taken a Bail-Bond 131 Attachments out of Chancery within the Statute that enables the Sheriff to take Bail-Bonds 238 How far a Bail-Bond may vary from the Writ 238 Bankrupt Trover and Conversion brought by an Assignee of Commissioners of Bankrupts against one possest of Bankrupt's Goods 63 The Commissioners cannot assign Money levied at the Bankrupt's Suit in Execution remaining in the Sheriffs hands or in Court 95 A Bankrupt's Servant shall set forth an Account of the Bankrupts Estate in his Answer to a Bill in Chancery tho' he hath been already Examined before the Commissioners 358 Baron and Feme If a Woman be Warden of the Fleet and one in Prison there marry her he is thereby out of Prison and in the Eye of the Law at large being a Husband cannot be in Custody to his Wife 19 Battery brought for both and found only as to the Wife tho' they cannot joyn for beating both yet good after Verdict 29 That Baron and Feme Executrix devastaverunt converterunt ad usum iplorum good 45 In an Action brought against the Husband for Lodging and Goods had by the Wife after Elopement what Plea shall be good what not 155 Whether the Wife may joyn with her Husband in bringing Trespass Quare Clausum fregit where the Land is the Wives 195 A Supplicavit de bono gestu granted in Chancery against the Husband for ill Usage to his Wife 345 Bond or Bill Penal See Obligation By Law A Corporation cannot make a By-Law to bind those which are not of its Body without Act of Parliament or express Prescription 33 Whether a By-Law of the University of Oxford shall oblige the Townsmen 33 34 A Corporation cannot make a By-Law to have a Forfeiture levied by sale of Goods nor for Forfeiture of Goods 183 C Canons THose of 3 Jac. 1. of force tho' never confirm'd by Act of Parliament 44 What Canons of force what not ibid. Challenge To the Array because the Sheriff in 1687. had not taken the Test the Challenge disallow'd 58 Chancery See Covenant Mortgage Trial Limitations Executor An Infants Answer in Chancery by Guardian no Evidence at Law to affect the Infant 72 There can be no Process of Contempt in Chancery against a Peer 342 Purchaser without Notice of Incumbrance favour'd in Chancery 339. 343 Words of Conveyance passing more than was intended how relievable in Chancery 345 A Trust and Equitable Interest is a Creature of the Chancery and therefore disposable by the Rules of that Court 350 Where a man leaves his Estate under several Incumbrances if the Heir buys in any of the first they shall not by the Course of this Court stand in the Way of Creditors for more than the Heir really paid for them 353 Relieves an Heir against Extortion 359 What shall be admitted to be read in Chancery what not 361 Distribution of Intestates Estate upon the Statute of 22 23 Car. 2. cap. 10. may be sued for in Chancery 362 Where a Bill is Exhibited to examine in prepetuam rei memoriam the Plaintiff must not pray Relief 366 Commitment What Commitment of Justices of the Peace for refusing to find Sureties of Good Behaviour good what not 22 23 24 Condition Condition of a Bond not to give Evidence at the Assizes against Law and the Obligee ought to be prosecuted for taking such a Bond 109 Consideration See Vse Notice Grant Enrolment Marriage Mortgage Conveyance Conveyances at the Common Law not such as work by the Statute of Vses or Surrenders of Copy-holds divest the Estate out of him that makes them immediately and put it in the Party to whom such Conveyance is made tho' in his Absence or without his Notice till he shews his disagreement 201 What Acts are requisite in Conveyances at Common Law 201 202 Atricles to Settle decreed to be executed by the Heir at Law 343 A Voluntary Conveyance defective at Common Law rarely relieved in Chancery 365 Copyhold See Action on the Case In what Cases and when the Lord shall seize the Copyhold Estate of his Tenant for Felony or Treason 38 Lands do not appear to be Copy-hold by saying they were held according to Custom unless it be said at the Will of the Lord 144 A Copyholder in Pleading need not shew admittance where the Title does not come in question as in Avowry for Rent reserved from his Under Tenant 182 Corporation See By-Law A Corporation cannot prescribe in a Que Estate â— sed quere 186 Costs See Nonsuit The Court cannot allow double Costs unless the Judge of Assizes caused the Postea to be mark'd 45 Divers Trespasses assigned the Defendant pleads Not Guilty for some and Justifies for others and the Jury find for the Plaintiff in one Issue and for the Defendant on the other no more Costs than Damages 180 195 What Costs discharged by the General Pardon and what not 210 No Costs to either Party upon a Repleader 196 Full Costs in Trespass given where the Damage was under 40 s 215 Covenant See Grant Trespass An Attorney Covenants on behalf of another Person that the Plaintiff shall quietly Enjoy an Action of Trespass is brought against the Plaintiff Whether this is a Breach of the Covenant 46 61 62 In an Action of Covenant the Defendant cannot plead that the Plaintiff tempore quo nihil habuit in tenementis tho' such Plea in an Action of Debt for Rent is good 99 Where Lessee Covenants to build three Houses upon the Premisses and keep them in Repair he builds four and lets one fall to decay Whether the Covenant extends to the fourth 128 A Covenant which does not consist with the Recital that leads and occasions it shall not oblige 140 A Suit in Chancery to stay Waste no Breach of Covenant for quiet Enjoyment tho' the Bill be dismist with Costs 213 214 A Latter Covenant by a second Indenture cannot be pleaded in Bar to the former but the Defendant must bring his Action on the last Indenture if he will help himself 218 Custom See Fine D Damages See Costs Debt
See Rent IF part of a Debt upon Bond be received and an Acquittance given before the Action it is a Bar only of so much as was received but if after the Action brought it seems it may be pleaded in bar to the Whole 135 Whether an Action of Debt may be brought upon a Judgment pending a Writ of Error and whether the Defendant in such Action ought to Demur or plead Specially 261 A Consideration creates a Debt tho' that Debt be not reduced to a certain Sum as in the case of a Quantum meruit 282 Debt secured is Payment in Law 358 Devise See Tail Vse Of implicit Devises and where Lands shall pass by Implication in a Will and where not 56 57 A Reversion shall pass in a Will by the Words All my Hereditaments 286 Whether Money in the Court of Orphans be devisable 340 If Money be devised to one to be paid at his Age of 21 years if the Party dies before it shall go to his Executors but if Money be bequeathed to one at his Age of 21 years and he dies before the Money is lost 242 366 Where a Sum of Money is devised to a Child at such an Age it shall have the Interest in the mean time rather than the Executor shall swallow it especially when no Maintenance is otherwise provided 346 Devise to J.S. at the Age of 21 and if J.S. dies before 21 then to A A. dies after J. S. dies under 21 the Administrator of A. shall have it 347 If Lands be devised for payment of Debts and Legacies the Personal Estate shall notwithstanding as far as it will go by apply'd to the payment of Debts c. and the Land only make up the Residue 349 Where an Administrator shall have an Estate devised to an Infant and where not 355 356 A Sum of Money devised to be raised out of the Profits of his Lands the Profits will not amount to the Sum the Land may be sold 357 Diversity where a Child's Portion is devised out of Personal Estate and where to be raised out of Land 366 367 Distress Whether a Drover's Cattel put into a Ground belonging to a Common-Inn upon the Road to London may be distrained for Rent due from the Innkeeper 50 Leave given to mend the Conisans upon a Distress after a Demurrer paying Costs 142 A Distress may not be sever'd as Horses out of a Cart and therefore in some Cases a Distress of great Value may be taken for a small matter because not severable 183 Where one holds a Third part of certain Land and another two Third parts of the same Land undivided he who hath the One part cannot distrain the Cartel which were put in by Licence of him who hath the two Parts 228 283 E Ecclesiastical Court See Marriage WHether the Ecclesiastical Court may proceed against Conventicles or whether they be punishable only at the Common Law 41. They may 44 The legal Method of Proceedings in the Ecclesiastical Courts 42 43 The Proceeding ex Officio 43 A Suit may be tryed in the Ecclesiastical Court upon a Prescription to Repair the Chancel so also for a Modus Decimandi 239 Ecclesiastical Persons A Curate incapable of taking an Estate devised in Succession for want of being Incorporate but the Heir of the Devisee shall hold the Estate in Trust for the Curate for the time being 349 Ejectment In Ejectment the Declaration of Michaelmass Term and the Demise laid 30 of October after the Term began 174 Elegit See Execution Enrolment A Deed where the Grant is exprest to be in Consideration of Natural Affection as well as Money need not be Enrolled but the Land will pass by way of Covenant to stand seised 150 Error See Debt Essoine Where several Tenants in a Real Action may be Essoigned severally 57 Regularly Proceedings in an Essoine in Dower 117 Estate What Words shall create a Tenancy in Common 265 266 Evidence See Action on the Case Chancery Exchange Bills of Exchange have the same Effect between others as between Merchants and a Gentleman shall not avoid the Effect by pleading He is no Merchant 295 310 The Custom of Bills of Exchange 307 310 Execution How the Sheriff ought to behave himself in Executing a Fieri facias 94 95 Whether Money paid for Goods taken upon a Fieri facias is properly paid to the use of the Sheriff or Plaintiff ibid. A Fieri facias was executed after the Party was dead upon the Goods in the hands of the Executor but Teste before tho' not delivered to the Sheriff till after This was a good Execution at the Common Law but quaere since the Statute of 29 Car. 2. cap. 3. 218 An Extent upon an Elegit being satisfied by perception of Profits he in Reversion may enter 336 Executor See Award Rent Waver And Executor may detain for a Debt due upon a simple Contract against a Debt grounded upon a Devastavit 40 Whether the Executor of a Bishop may bring an Action of Covenant for breach of a Real Covenant relating to Lands of the Bishoprick 56 Where a Woman disposes of Goods as Executrix in her own wrong if she takes Administration afterwards tho' before the Writ brought this will not hinder the Plaintiff from charging her as Executrix in her own wrong 180 An Executor in his own wrong cannot retain ibid. The Mother Executrix shall not discount for Maintenance and Education out of the Money left by the Father for the Mother ought to maintain the Child But Money paid for binding him Apprentice may be discounted 353 After an Executor assents to a Legacy he shall never bring it back again to pay Debts Secus where he is sued and pays by Decree in Chancery there the Legatee shall refund 358 Where an Executor pays a Debt upon a Simple Contract there shall be no refunding to a Creditor of a higher nature Vid. Legacy 360 Money decreed in Chancery to the Executor of an Administrator do bonis non and not the second Administrator de bonis non where no Debts appeared of the first Intestate 362 Minority as to Executorship determines at the Age of 17 and then a Personal Estate devised to such Executor vests in him 368 Exposition of Words Faldagium 139 The force of these Words in forma praedicta 215 F Fieri facias See Execution Fine WHere and how a Fine levied by a Feme-Covert shall be set aside and where the Commissioner who took it may be fined by the Court 30 A Fine acknowledged before the Revolution and Writ of Covenant sued out after allowed good 47 48 A Right to an Estate by Extent barr'd by a Fine and Non-claim 329. So also the Right to a Term for years ibid. Secus where a Statute is assigned in Trust to wait upon the Inheritance 330 Fine Customary What Customary Fine between Lord and Tenant shall be allow'd good upon Alienation 134 135 Forfeiture See Office Generally where a Statute gives a Forfeiture and not said to
a Scotishman Antenate being Naturalized by Act of Parliament in Ireland can Inherit Lands in England 2 Ne exeat Regnum Granted in Chancery to stop one from going beyond Sea to avoid a Sentence in the Ecclesiastical Court 345 Nonsuit The Plaintiff Nonsuited in Ejectment after Evidence where two Defendants and one appears to confess Lease Entry c. and the other not the Plaintiff shall pay Costs but quaere how to be divided 195 Notice See Chancery Conveyance Mortgage If a Man pleads a Valuable Consideration in Chancery to save his Estate from a Judgment he must also set forth That he had no Notice of the Judgment 361 O Obligation A Penalty may be recovered in an Action of Debt upon a Bill Obligatory tho' it be not drawn properly as a Penal Bill 106 Occupant Occupancy favoured in Chancery 364 Office Where the Archdeacon forfeits his Right to grant the Office of his Register by the Stat. 5 E. 6 c. 16. against the Sale of Offices whether the King or Bishop shall take advantage of the Forfeiture 188 213 267 A Dissenter that hath not received the Sacrament of 12 Months before may plead the Stat. 13 Car. 2. Stat. 2. cap. 1. to excuse him from serving Offices in Corporations 247 248 Original See Writs What Original Filing within time shall be sufficient to prevent the pleading the Statute of Limitations 193 259 Whether in the Common Pleas an Original in a Clausum fregit be sufficient to warrant a Declaration in an Assumpsit 259 Outlawry A Man in Prison ought not to be Outlawed by him who Imprisoned him 46 Action on the Case will not lye for the Party who hath an Outlawry agaist a Sheriff who neglects to extend the Goods of the Outlaw upon the delivery of a Writ of Capias Vtlagatum for that it is the King's loss 90 Whether Outlawry may be pleaded in Bar to an Assumpsit upon a Quantum meruit 282 Oxford See By-Law The Priviledge of the University not allow'd to a Townsman so as to excuse him from Office who keeps a Shop and follows a Trade tho' he be Matriculated and Servant to a Doctor 106 Priviledge not allow'd to a Member of this University in a Suit in Chancery 362 P Pardon SUits by Successor against Executor for Dilapidations not pardon'd by the General Pardon otherwise of Suits ex Officio against the Dilapidator 216 Parliament No Action lies against the Chief Officer of a Corporation for a Double-Return of a Burgess the Common Pleas having no Jurisdiction of this Matter 37 Peace The King cannot discharge a Recognizance taken for Surety of the Peace but after it is broken he may 131 A Gentleman said to be a Member of the House of Commons bound to the Peace for Challenging one of the King's Witnesses to Fight 317 Plantation Tho' a Plantation be an Inheritance yet being in a Foreign Country 't is look'd upon as a Chattel to pay Debts and a Testamentary thing 358 Pleading See Baron and Feme Covenant Intent Scire facias Copyhold What shal be held a Double Plea and what not 68 198 Trespass for carrying away diversa onera equina of Gravel naught for incertainty 73 Want of the Word alio or aliis in a Declaration where several mention is made of things of the same nature yet good enough 78 For the Defendant to traverse Matter not alledged good Cause for the Plaintiff to demur 79 If a Judgment and Execution be pleaded in an Inferiour Court not of Record the Proceedings ought to be set forth at large and not sufficient to say taliter processum fuit also it ought to be set forth That the Cause of Action did arise within the Jurisdiction 100 In a Prescription for Priviledge tempore quo non exstat memoria good enough tho' the Course be to say à tempore cujus contrarium memoria hominum non existit 130 Tho' by Course of the Court if a Defendant lye in Prison two whole Terms without any Declaration put in he may get a Rule to be discharged yet if a Declaration be afterwards delivered and Judgment thereupon 't is a good Judgment and the Bail formerly given will be liable 143 Where Freehold Lands were pleaded to pass by Surrender according to Custom the Special Custom must be set forth 144 Where the Writ contains more than is Declared for this is a Variance not aided by the Verdict and Judgment arrested 153 Debt upon Bond Condition'd That the Husband shall permit the Wife to dispose of her Personal Estate c. it is not sufficient for the Defendant to plead quod Conditio nunquam infracta fuit and put the Plaintiff to assign a Breach but the Defendant must shew forth That he hath perform'd the Condition 156 Where an Action of Trespass brought for the same Matter in another Court may be pleaded in Bar to an Action of Trover 169 170 In Trespass quod duas acras terrae fod subvert asportavit Judgment stayed because the Declaration doth not express the quantity of Earth carried away for the two Acres relate only to the Ground digged 174 The Plaintiff Declares for Assault Battery Wounding and Imprisonment the Defendant in his Plea takes no notice of the Battery naught 193 Plea in Abatement That the Plaintiff was dead before the Action brought where good 196 Where preadict is necessary and where not 197 Where a Traverse that might have been omitted is Cause of Demurrer 212 Doubleness in a Declaration cured by Answering 222 Day of the Week where material ought to be set forth in Pleading for the Court are not obliged to consult the Almanack 248 Tempore dimissionum where it should be temporibus dimissionum naught 253 254 271 Super Acclivitatem de Hampsted which is a description of a Scituation whether it be a Vill or Lieu conus sufficient for a Jury 254 272 Diversas petias Maheremij cepit c. naught for the Incertainty 262 Where the Defendant pleads an Insufficient Plea the Plaintiff shall make no Advantage of that upon Demurrer if his own Declaration be naught but Judgment will be against the Plaintiff 262. As where an Executor sues for Rent and does not sufficiently Intitle his Testator to the Estate demised ibid. Plenam potestatem Jus Titulum ad Praemissa dimittend ' and does not set forth what Estate he had whether in Fee or other Estate not good upon a Demurrer 271 Houses are set forth in Pleading to lye in Parochia praedicta and two Parishes are named before naught for the Incertainty 278 Traverse impertinent where the Matter is confest and avoided 283 No General Rule That a Matter cannot be pleaded specially which may be given in Evidence upon a General Issue and in what Cases it may 295 Vid. infra Statut. 1 W. M. cap. 4. Presumption Presumptions of Law stand as strong till the contrary appears as an express Declaration of the Party 208 Priviledge Whether the Warden of the Fleet shall have a Writ
of Priviledge fitting the Parliament 154 Prohibition A second Prohibition not grantable after a Consultation 47 Q Quantum meruit See Outlawry Que Estate See Corporation R Recovery A Deed Fine and Recovery do all make but one Assurance but each hath its several effect 31 Common Recoveries are Common Assurances and are not to be overthrown by nice Constructions 32 A Common Recovery stopt what shall be good Cause to stop it 90 Relation Of Relation its force and where it shall Operate 200 Remainder What shall be accounted a Contingent Remainder and what a Remainder vested 313 Rent Rent due if the thing let hath been really enjoy'd 68 A Rent cannot be reserved out of a thing Incorporeal 69 Every Quarters Rent is a several Debt and distinct Actions may be brought for each Quarters Rent Not so for part of the Money due upon Bond or Contract unless the Plaintiff shews that the rest is satisfied 129 A Debt for Rent payable by an Executor before Bonds because it savours of the Realty and is maintain'd in regard of the Profits of the Land received 184 Request Request where necessary to be set forth and where not 75 Rescous See Return Return If a Sheriff Return a Rescous it is not now Traversable tho' formerly it was 175 Reversion A Reversion is a present Interest tho' to take effect in possession after another Estate determined 328 Revocation What shall be a good Revocation in Equity 350 S Scire facias WHere one Ter-tenant is Return'd summon'd he may plead That there are other Ter-tenants tho' in another County 104. But he must not plead this by way of Abatement but demand Judgment si ipse ad breve praed in forma praed retorn ' respondere compelli debeat 105 The Record of a Scire facias naught in the Titleing not permitted to be amended 105 Scire facias in Chancery to Repeal a Patent 344 Settlement See Conveyance Marriage Mortgage A Voluntary Settlement avoided by a following Settlement in Joynture 363 Sheriff If a Sheriff of a City be in Contempt the Attachment shall go to the Coroners and not to the Mayor but if he be out of Office then it shall go to the succeeding Sheriff 216 Simony To sell an Advowson ea intentione that J.S. shall be presented Simony 39 In case of Simony the Presentation vests in the King without Office Quaere in other Cases 213 Statutes 13 E. 1. Stat. of Winton In an Action upon this Statute not necessary to set forth more in the Declaration than is pertinent to the Action 215 4. H. 7. cap. 24. Of Fines Of Claims after the coming in of Future Interests in the second Saving in this Act 333 21 Jac. 1. cap. 16. See Limitations 22 23 Car. 2. cap. 9. No more Costs than Damage explain'd 36 What Trespass within this Statute What not 48 29 Car. 2. cap. 3. A Promise by Letter a sufficient Promise in Writing within this Statute 361. This Statute does not extend to Trusts raised by Operation of Law 361 31 Car. 2. cap. 2. Where a Man commits a Capital Crime in Ireland he may be sent thither to be Tried thereupon notwithstanding that by this Act No Subject of this Realm shall be sent Prisoner to any Foreign parts 314 1 W. M. cap. 4. That Statute which saves time of Limitation does not alter the Form of Pleading but that shall be as it was before 185 197 Statute Recognizance See Fine What shall be esteemed a regular Extending of a Statute Merchant 326 Where the Interest of a former Statute shall drown'd in that of a latter being both Extended and assigned to the same person 326 327 328 The Extent of a Statute what it is and the Effect thereof 326 338 An Extent upon a Puisne Statute where Extended after a Prior Statute is in the nature of a Reversional Interest 328 When a former Statute is determin'd whether it be by release of the Debt by purchase of part of the Lands by being barr'd by Non-Claim upon a Fine Satisfaction acknowledged or any other means this lets in the Puisne Statute 332 An Extent begins by Record but it may end without Record for a Release by the Conizee after Extent determines it and he that hath a Puisne Statute may Enter 336 Cannot be assigned before Extent in Law 362 Surrender No Surrender of an Estate without Acceptance by the Surrenderee 199 Yet quaere for the Judgment was reverst in Parliament 208 That a Surrender divesteth the Estate immediately before express Assent of the Surrenderee 203 infr T Tail A Devise to one for Life Remainder to the Heir Males of his Body for ever this is an Estate-Tail in the Devisee 313 A Sum of Money cannot be Entailed 349 Tender Plea of a Tender without setting forth a Refusal not good otherwise if a place of Payment was appointed and the Party to Receive was not there 109 Tythes Whether Notice be necessary to be given to the Parson upon setting forth of Tythes 48 Traverse See Pleading Treason Whether Listing of Men to send beyond Seas to joyn the King's Enemies be Treason within the Clause of Levying War in the Stat. 25 Ed. 3. 316 Whether the indictment should not express in particular who those Enemies are or whether the General Words be not sufficient ibid. To List c. and an Intent to Depose the King is Treason within the Clause of Compassing the Death of the King 317 Trespass See Assent Whether a Suit in an Action of Trespass be a Breach of Covenant to hold and enjoy quietly 46 61 62 Where an Action of Trover will lye for Goods tho' an Action of Trespass would not for taking them 169 170 Trust See Chancery Limitation The force of the Word Trust in the Limitation of a Use 312 Where a Man buys Land in anothers Name and pays Money it will be a Trust for him who pays the Money tho' there be no Deed declaring the Trust 361 Trust executed in Chancery according to the Parties meaning 363 364 Tryal A New Tryal directed by the Lord Chancellor where the former Verdict has been complain'd of in a Bill before him the Complainant paying the Costs of the first Tryal 351 352 V Variance See Pleading Verdict See Baron and Feme A Mistake in an Indebitatus Assumpsit where good after Verdict 36 A Declaration tho' Inartificial is notwithstanding good after Verdict 174 Vill. Vill and Parish the Diversity and where Lands in One shall pass in the Other of the same Name 31 Vmpire Arbitrators and Umpire cannot lawfully have concurrent Authorities at the same time 115 Vse Where Money is paid to A. for the Use of B. in whom the Right and Interest vests 310 Lands may be Devised to the Use of another but if no Use be limited they will lodge in the Devisee for a Devise implies a Consideration 312 Vsury No Unlawful Usury if the Agreement be not Corrupt tho' the Wording of the Condition may be otherwise by Mistake