sees his own time and advantage he will have his own choice do what they can for before they can complain of him which is a work of time and charge and trouble he will have done his work and so prevent them And then where is the freedom of Election This could never appear more plainly than in this Case of ours where the Election by the majority is set aside and the choice made by a lesser number and in effect by Mr. Mayor only is that which carries it It plainly appears that we had no sinister design to do any thing without the Mayor for we did all we could to get him to join with us and he thrice denied us but it as plainly appears that the Mayor had a design in refusing to do it till some of us must be gone and then to steal an Election behind our backs by a lesser number when he had the advantage After all that I have said I do agree that had eleven Aldermen of us gone about an Election without so much as desiring the Mayor to join with us or it may be upon once or twice being refused or when the Mayor had been occasionally absent or had it any way appeared that we meant a surprise in it or had we made a Choice subject to the least Exception and had he not obstinately gone away from us being in person upon the place without so much as giving us the least reason for his refusal I should have held my tongue and not have concern'd my self any farther in it I hope it sufficiently appears that I have been no Enemy to Government and Order But to choose an Alderman was our Duty and we were under an Oath to do our Duty and we did but discharge our Trust I may I think save my self the labour of arguing that however if we were mistaken in the Construction of the Charter and in the point of Law in the making of our Election yet here is no Riot in the Case for we are indicted for a Riot for a Riot is the doing of an unlawful act with force and violence neither are we an unlawful Assembly for that is where there is an intent to do an unlawful Act but still with force and violence but they go away without doing it as appears by Poulton de Pace Reg. Regin fol. 25. And in case the Election we made be adjudged duly made then the pretence of a Riot vanishes of it self as is held in Eden's Case Cro. Eliz. 697. If the Indictment be void for the principal matter which in the Case there was an unlawful Entry against the Statute of 8 H. 6. where that Statute was mis-recited they were not allowed in that case to stand upon the Riot I have but a short word more I have been the Recorder of Bristol these one and twenty years longer I think than any Man can be remembred I have sworn all the Aldermen that are now upon the Bench in my time and many more who are now dead I can say it without vanity till the time of this unhappy Election of Members to the Oxford Parliament which I sought not I had the good Will of all sides even of this Mr. Mayor who was Sir Richard Hart for I never would join with any Party but did all I could when I came amongst them to join them together and unite them For ever since they grew rich and full of Trade and Knighthood too much Sail and too little Ballast they have been miserably divided And unless this Court to whom I think it properly belongs upon complaint in such Cases will examine their Dis-orders and command Peace and Order to be observed in our Proceedings I cannot safely attend there any more nor hold any Gaol Delivery I submit what I have said to the Court. Whereupon the Court arrested the Iudgment Lord Grandison versus Countess of Dover IN a Prohibition the Case was Where an Administration once granted ought not to be repealed Charles Heveningham died Intestate leaving an only Sister Abigail then an Infant The Countess of Dover who was her Great Grandmother came into the Prerogative Court and prayed to be assigned her Guardian Ex officio which was granted and thereupon she obtained Administration durante minore aetate Afterwards my Lord Grandison brought a Prohibition suggesting that the Court had granted Administration upon a surprise and being Grandfather to the Children and so nearer of kinred prayed that Administration might be committed to him The Lady replyed that it was obtained after great deliberation and without any surprize and upon a Demurrer the Question was Whether this Administration was well granted to the Lady It was argued now by Dr. Master for the Plaintiff and afterwards by a Common Lawyer on the same side in Hillary Term following And by Dr. Reines and Sir William Williams for the Defendant The Civilian argued That the Father of both the Children died intestate and that their Mother administred and afterwards made a Will of which she appointed my Lord to be Executor and thereby committed the Infant to his Custody which being in Fact true the Curatorship of the Living Child by the Civil Law draws to it the Administration of the Estate of the dead Child There is a Statute Law which empowers the Father by Deed or Will to dispose the custody of his Child under Age 12 Car. 2. cap. 24. to any in Possession or Remainder who may take the Profits of his Lands and possess himself of the said Infant 's personal Estate and bring Actions in relation thereunto as a Guardian in Socage might have done And wherever a Father or †Quare of the Mother Mother has made such a disposition a Iudge cannot assign a Guardian The Spiritual Courts have power to repeal this Administration granted to my Lady Dover the Right is not in question for whoever has it reaps no advantage because 't is for the benefit of the Infant the contest is who ought to be admitted by the Spiritual Court to Administer It cannot be denied but that the Great Grandmother is a degree more remote than the Grandfather If therefore that Court hath entrusted one who ought not to have Administration they have an undoubted power in such case to make an Alteration If my Lord had been Administrator it had been agreeable to the Common-Law for he is Guardian in Socage durante minore aetate E contra E contra It was said That my Lord was really indebted to the Estate of the Infant intestate and therefore as this Case is the Spiritual Court ought not to repeal the Administration once granted for 't is for the benefit of the Infant 'T is not material who shall be Administrator for he who is so durante minore aetate hath no power over the Estate he is only a Curator in the Civil Law which is in the nature of a Bayliff in our Law who hath only power to sell bona peritura Probate
of Wills did not Originally belong to the Spiritual Courts de jure they had that Authority per consensum Regis Magnatum And as those Courts had not original Iurisdiction in such Cases so they had no power to grant Administration 'till enabled by the Statute of Edw. 31 Ed. 3. cap. 11. 3. For before that time the Kings of England by their proper Officers solebant capere bona intestatorum in manus suas 'T is plain that the Ordinary had no power by the Common Law over an Intestate's Estate for he could not maintain an Action to recover any part of it now if the Law had given him a power over the Goods it would likewise have given him an Authority or Remedy to recover them An Action would have lain against him at the Common Law 13 E. 1. cap. 19. and by the Statute of Edw. 1. which was made in affirmance thereof if he had possessed himself of such Goods and refused to pay the Debts Then since he hath no original Power in this Case and this being a special kind of Administration when he hath once executed that power he shall not repeal it and the Court enclined to that Opinion vid. 9 Rep. Henslow's Case DE Term. Sancti Mich. Anno 35 Car. II. in Banco Regis 1683. Roe versus Sir Thomas Clargis IN a Writ of Error Papist is actionable Raymond 482. upon a Iudgment in the Common-Pleas in an Action upon the Case wherein the Plaintiff declar'd That the King had made him one of his Privy Council in Ireland and that he was a Deputy Lieutenant of the County of Middlesex and had serv'd in several Parliaments for the Burrough of Christ-Church in Hampshire and that the King having summon'd a Parliament to meet at Westminster he did stand to be a Member of that Burrough and that the Defendant Roe did then speak these words of him Viz. He meaning the Plaintiff is a Papist Vpon a Tryal there was a Verdict and a Iudgment for the Plaintiff This Case was argued by Sir Francis Winnington for the Plaintiff in the Errors and by Mr. Roger North for the Defendant The Questions were these 1. Whether the words abstracted from the Offices set forth in this Declaration were actionable or not 2. Whether they are actionable as joined to those Capacities The Councel for the Plaintiff in the Errors held the Negative in both Points 1. The word Papist is not defin'd either by the Common Law or the Statutes of this Realm for from the first of the Queen to the 25 Car. 2. it is not to be found what a Papist is There are several Statutes between those times which provide against the Iurisdiction of the Pope and which inflict particular Punishments upon committing Offences therein prohibited but none of those Laws give any definition of a Papist If by a Papist is meant him who embraces the Doctrine of the Pope it was punishable before the Reformation to be of a contrary Opinion Now in the vulgar acceptation of the word a man may hold the same Opinion with the Church of Rome and yet not profess the Popish Religion so as to bring himself in danger of any of the Penalties in these Laws There was never yet an Indictment against a person for being a Papist but many have been indicted upon the breach of those Laws made against Recusants by which they incurred the Penalties thereby appointed In Michaelmas 27 H. 8. 27 H. 8. 14. B. an Action on the Case was brought in the Common-Pleas for calling of the Plaintiff Heretick and Willoughby the King's Serjeant argued That the Action would not lye because the word did import a Spiritual Matter of which the Temporal Courts had no knowledge and of that Opinion were the Chief Justice Fitzherbert and Justice Shelley The same may be said in this Case that the word Papist relates to something which is Spiritual of which this Court hath no cognizance Words which are actionable must immediately injure the person of whom they are spoken either in his Profession or bring him in danger of some Punishment Hob. 8. as to call an Attorney Bribing Knave which are adjectively spoken yet 't is an Injury done to him in his Profession It was said at the Trial in the Common-Pleas That 't is actionable to call a Man Papist at this time though it might not be so at another time This seems to be a very vain assertion for though the Times may alter the Law is still the same It would be a very great inconvenience if Men should be deterr'd by Actions to call another Man a Papist for this would be an encouragement to Popery and a check upon the Protestant Religion to punish the Professors thereof for saying a Man is a Papist who is really so both in his Iudgment and Profession But admitting the word to be actionable Not actionable to call a man Papist Cro. Eliz. 191. 't is not so before Conviction for 't is very improperly used and of no signification or discredit before that time 2. These words are not actionable as coupled with his Offices because he hath alledged no particular damage or Loss and his Offices are only Honorary and of no Profit and therefore he could receive no Damage by speaking these words if true when they in no sort relate to his Offices and are too remote to be applied to them 1. E contra The words are actionable in themselves for they scandalize the Plaintiff in his Reputation and may be a means to bring him to corporal Punishment for by several Acts of Parliament many Punishments are inflicted upon Popish Recusants which is the same thing with a Papist they are disabled from holding any Office or Imployment in the Kingdom they are not to come into the Kings presence or within five Miles of the City of London and the calling of him Papist subjects him to the danger of being Indicted for a Traytor for the words are Synonimous When H. 8. took upon him the Supremacy which the Pope had unlawfully Vsurped there were certain Papists in those days who called themselves Roman Catholicks that they might be distinguished from those who bore Allegiance to their lawful King which general appellation was afterwards changed into the word Papist so that both signifie the same thing The Objection that tho Times change the Law is still the same may receive this Answer That when the force of words is changed with the Times those words shall be actionable now which were not so at another time As for Example the proper and genuine signification of the word Knave is a Servant but now the Times have altered the sense of that word and made it to be a term of Reproach so that 't is actionable to call an Attorny Knave who is but a Servant to his Client 1. Then as to the Objection that the word Papist is not defin'd in our Law There is a Statute which disables a
The Third PART OF Modern Reports BEING A COLLECTION Of Several SPECIAL CASES IN THE COURT OF King's-Bench In the last Years of the Reign of King Charles II. In the Reign of King James II. And in the two first Years of his present MAJESTY TOGETHER WITH The Resolutions and Judgments thereupon None of these Cases ever Printed before Indignor quicquam reprehendi non quia crassè Compositum illepidéve putetur sed quia nuper Hor. Epist 2.1 Carefully Collected by a Learned Hand LONDON Printed by the Assigns of Rich. and Edw. Atkins Esqrs for Charles Harper at the Flower de Luce over-against St. Dunstan's Church in Fleetstreet 1700. Mr Ambrose Holbech of Mollington. in the County of Warwick 1702 TO THE PROFESSORS OF THE Common Law OF ENGLAND Gentlemen ALL Human Laws are either Natural or Civil The Law of Nature which is also the Moral Law is at all times and in all places the same and so will always continue By Civil Laws I mean such as are established by Human Policy which with us are either Customs or Statutes and these have also some resemblance to Natural Laws because they are for the most part introduced by the concurrent Reason of Men and Reason is the Law of Nature Customs are made by Time and Usage and do thereby obtain the force of Laws in particular places and Nations but no otherwise than upon supposition that they were reasonable at the beginning To these may be added such Laws which are usually called Responsa Prudentum which together with Customs make a great part of our Municipal Laws And because 't is impossible that future Evils should be foreseen by the Wisdom of Mankind so as to prevent them therefore 't is very reasonable that positive Laws should be instituted by the Legislative Power which we call Statutes and those are either Commands or Prohibitions always enacted upon some present Emergencies and may be altered or repealed according as the Manners of Men change or as the Conjuncture of Affairs require for the publick Good I do not find this Nation was governed by any settled Laws from the time of William called the Conqueror till 9 H. 3. but by the irregular Power of the Norman King and of those who immediately succeeded him 'T is true he swore to preserve approbatas antiquas Leges Angliae but 't is as true that the same Force which compelled our Forefathers to submit did likewise exact their Obedience to the Customs of Normandy some of which we retain to this very day It was then a term of Reproach to be called an Englishman as if that denomination imported to be a Slave This made the lesser Barons that is the Freeholders or those which had such Lordships which are now called Court-Barons take up Arms to regain their ancient Rights and by that means they obtained a Grant of their old Laws from some of those Kings which was called Magna Charta Libertatum but living in a tumultuous Age they did never quietly enjoy those Liberties for notwithstanding that Charter many Infringements were made upon them which they continued in Arms to defend insomuch that in the Seventeenth Year of King John they delivered to that King a Schedule of their ancient Customs in Writing desiring that he would establish them by another Grant which was done accordingly But this Charter was as little observed as the former for the Norman Customs did still interfere with St. Edward's Laws and the People were miserably divided by those Innovations till Anno 9 H. 3. the Great Charter was established by Authority of Parliament From that time those ancient Laws and Customs were had again in repute they were revived by that Grant which was only declaratory of them and because a more exact Obedience and Conformity might be given to them for the future therefore did his Successor the good King Edward I. encourage the Lawyers in his time to reduce them into Order and Writing which was done accordingly about the middle of his Reign by John Breton not the Bishop of Hereford but a Judge of the King's Bench for as Mr. Selden has observed the Bishop of that Name died Anno 3 E. 1. And in that Book which is now called Breton the Statute of W. 2. is cited which was made 13 E. 1. and therefore it could not be penned by the Bishop unless he could quote a Statute which was not made till above ten years after his Death This is one of the first Systems extant of our Laws 'T is true the Book called The Mirror of Justice was written before but many Additions were made to it in this King's Reign by Andrew Horn a learned Man in that Age. There was likewise a small Tract then written by Sir Ralph Hengham Lord Chief Justice of the Common Pleas which only treats of Essoins and Defaults in Writs of Right Writs of Assize and Dower and therefore cannot be called a Body of our Laws I must admit that two such Books were written by the Lord Chief Justice Glanvil and Justice Bracton the one in the Reign of Henry the Second and the other in the time of Henry the Third but not one more of that Nature almost in the space of two hundred Years for I do not think the Book which the Lord Chancellor Fortescue wrote in the Reign of King Henry the Sixth can be properly called a System of Law It was published by him for these purposes first to obviate the design of two great Favourites the Dukes of Exeter and Suffolk who had used some endeavours to introduce the Imperial Law and therefore he shewed the Excellency of the Common Law above that and in the next place it was intended to soften the warlike Temper of the young Prince Edward by inclining him to the Study of those Laws by which he was to govern his People and to instruct him in some Occurrences therein The Abridgment by Baron Statham and the Year-Books are for the most part made up with Cases then depending in the several Courts at Westminster and with the Opinions and Resolutions of Judges which I rather call Responsa Prudentum than Systems of Law The next Attempt in that kind was made by Justice Littleton in the Seventh Year of Edward the Fourth who hath taught succeeding Ages with great Judgment and Learning in his Profession but 't is now two hundred and thirty Years since he wrote and many alterations have been made in the Law since his time I only mention these things to shew the necessity of new Books and that the old Volumes are not so useful now as formerly because many of the great Titles of which they were composed are now quite disused they are mentioned by my Lord Hales in his Preface to the Lord Chief Justice Roll's Abridgment which I shall not repeat and those very Titles make the greatest part of Justice Littleton's Tenures But amongst all the Old Tenures and Customs I admire that of Burrough English should still
the Court of Arches the Case was Prohibition not granted where a temporal loss may ensue The Plaintiff was presented by the Mayor and Aldermen of Bristol to the Parish Church of Christ-Church in the said City and the Defendant libelled against him because he was not 23 years of Age when made Deacon nor 24 when he entred into the Orders of a Priest 13 Eliz. c. 12. and the Statute requires that none shall be made a Minister or admitted to preach being under that Age. The reason now alledged for a Prohibition was because this Matter was triable at Law and not in the Spiritual Court because if true a Temporal Loss viz Deprivacion might follow But the Court denied the Prohibition and compared this Case to that of a Drunkard or ill Liver who are usually punished in the Ecclesiastical Courts though a temporal loss may ensue and if Prohibitions should be granted in all Cases where Deprivation is the consequence of the Crime it would very much lessen the Practice of those Courts David Burgh 's Case THE Parishioners of St. Leonard Foster Lane gave this Man who had a Wife and five Children 5 l. in Mony to remove into another Parish upon Condition that if he returned in 40 days that he should repay the Mony he removed accordingly and stayed away by the space of 40 days the Parish to which he removed obtained an Order upon an Appeal for his settlement in the last Parish where he was lawfully an Inhabitant which Order being removed into this Court and the Matter appearing thus upon Affidavits they declared their Opinion only upon the Order to remove viz. That the Man had gained a Settlement in the Parish to which he removed for he being an Inhabitant there for so long time as was required by Law to make a Settlement and not disturbed by the Officers they were remiss in their Duty and the Court would not help their negligence DE Term. Sanctae Trin. Anno 1 Jac. II. in Banco Regis 1685. Dominus Rex versus Dangerfield THE Defendant was convicted of publishing a Libel wherein he had accused the King when Duke of York that he had hired him to kill the late King Charles c. And on Fryday June 20. He was brought to the Barr where he received this Sentence viz. That he should pay the Fine of 500 l. That he should stand twice in the Pillory and go about the Hall with a Paper in his Har signifying his Crime That on Thursday next he should be whipped from Algate to Newgate and on Saturday following from Newgate to Tyburn which Sentence was executed accordingly and as he was returning in a Coach on Saturday from Tyburn one Mr. Robert Frances a Barrister of Greys-Inn asked him in a jeering manner whether he had run his Heat that day who replied again to him in scurrilous words whereupon Mr. Frances run him into the Eye with a small Cane which he had then in his Hand of which wound the said Mr. Dangerfield died on the Monday following Mr. Frances was indicted for this Murder and upon Not-guilty pleaded was tried at the Old-Bayly and found guilty and executed at Tyburn on Fryday July the 24th in the same year Mr. Baxter's Case HE was a Nonconformist Minister against whom an Information was exhibited for writing of a Book which he Entituled A Paraphrase upon the New Testament and the Crime alledged against him in the said Information was That he intending to bring the Protestant Religion into contempt and likewise the Bishops innuendo the Bishops of England did publish the Libel in which was contained such words c. setting forth the words He was convicted And Mr. Williams moved in arrest of Iudgment that the words in the Information and the Bishops therein mentioned were misapplied to the Protestant Religion and the Bishops of England by such Innuendoes which could not support this Charge against the Defendant That the Distringas and Habeas Corpora were inter nos Richardum Baxter which could not be because the Information was exhibited in the name of the Attorney General But the Court over-ruled these Exceptions and said that by the word Bishops in this Information no other could be reasonably intended but the English Bishops thereupon the Court fined him 500 l. and ordered him to give Security for his Good Behavior for seven years Procter versus Burdet AN Action of Covenant was brought by an Apprentice setting forth the Indenture by which the Defendant In Covenant the Breach was generally assigned and held good his Master had covenanted to find and allow the Plaintiff Meat Drink Lodging and all other things necessary during such a time and the Breach was as general as the Covenant viz. That he did not find hind him Meat Drink Lodging alia necessaria The Plaintiff had Iudgment by Nil dicit and upon a Writ of Enquity brought entire Damages were given against the Defendant And in a Writ of Error upon this Iudgment the Error assigned was that the Breach was too general and that entire Damages were given amongst other things for alia necessaria and doth not say for what 2 Cro. 436. Astel versus Mills and a Case was cited in the Point in Trinity-Term 16 Jacobi where the Iudgment was reversed for this very reason The Council contra argued that that which is required in an Action of Covenant is that there may be such a certainty as the Defendant may plead a former Recovery in Barr if he be sued again and therefore one need not be so particular in assigning of the Breach upon a Covenant as upon a Bond for in a Bond for performance of Covenants where there is a Covenant to repiar if it be put in suit 't is not sufficient to say That the House is out of repair but you must shew how but in a Covenant 't is enough to say That it was out of repair If in this Case the Plaintiff had shewed what necessaries were not provided for him Kelway 85. it would have made the Record too long and therefore 't is sufficient for him to say that the Defendant did not find alia necessaria That Case in 2 Cro. 2 Cro. 304 367. 1 Rol. Rep. 173. 3 Bulst 31. 2 Saund. 373. has since been adjudged not to be Law for many contrary Iudgments have weakened the Authority of it viz. That the Breach may be assigned as general as the Covenant as where a Man covenanted that he had a lawful Estate and Right to let c. the Breach assigned was that he had no lawful Estate and Right to let c. and doth not shew that the Lessor had not such Right or that he was evicted yet it was held good Curia In a Quantum meruit they formerly set out the Matter at length but now of late in that Action in general Words and also in Trover and Conversion pro diversis aliis bonis hath been held good which is as
and that Aliens might bring Wines into this Realm and that all Merchandizes might be carried into Ireland and exported from thence which shews that without such leave persons could not trade thither and Denizens could not import Wines from those parts The Case of sole Printing is a Manufacture and so not in the power of the King to restrain for 't is a piece of Art and Skill but when once it becomes of publick concernment then the Prerogative interposeth 'T is a vain Objection to say that every Subject hath a Right to trade which Right is grounded upon the Common Law for that Law can give no such Authority against any King's Prohibition For suppose a foreign Prince should forbid the Subjects of England to trade within his Dominions what Right can the Common Law give them so to do Or suppose any Foreign Prince should restrain Trade to a peculiar number of Men exclusive from the rest how would the Common Law help them So that if this Trade depend upon the Will of a Foreign Prince why may not the King of England prohibit his Subjects from using of it He who hath the sole power of making Leagues and Treaties is the foundation of Trade and can that Right which the Subject hath at the Common Law be independent on this The Question now is about the Regulation of a Trade by Letters Patents which the King hath power to do 1. By his Prerogative 27 E. 3. c. 1. 43 E. 3. c. 1. 47 E. 3. 1 H. 5. num 40. for the appointment of the Staple is not by vertue of any Act of Parliament but 't is the effect of Leagues and Treaties 2. By Acts of Parliament which have allowed such Grants and from other Acts which take notice of the Kings Prerogative In 12 H. 7. 12 H. 7. c. 6. a Fellowship of Merchant Adventurers in London made an Order to restrain all persons to sell at such a Mart without their consent The Statute of 3 Jacobi recites Letters Patents of the Incorporation to certain Merchants to trade into Spain and 4 Jac. 3 Jac. c. 6. Cap. 9. recites the like Letters Patents granted to the Merchants of Exeter by the Queen The next thing to be considered is what Acts of Parliament have either taken away or abridged the King's Prerogative The first is Magna Charta viz. That all Merchants shall stay here nisi publice antea prohibiti the meaning of which hath been already explained The second Statute is that which the Defendant hath pleaded In answer to which 't is to be observed that a Preamble of any Statute Law is the best Expositor of it because it usually mentions the occasion of its making and this Act amongst other Things and Petitions recites that the King had granted to the Men of Flanders that the Staple of Wool should be at Bruges which Town had ordered that no Wool should be sold to Strangers which was much to the damage of trading Merchants Now what is the Remedy in this Case Why the King grants that they may buy Wool at such prizes as they can agree and carry it where they please let the Seas be open c. So that this Act had only a prospect to remedy the abuse of the Staple which hath in no sort abridged the King's Prerogative If there should be no Regulation of Trade by the Power and Prerogative of the King what would become of the Turkey Company when it might be in the power of one Man to ruine all the Effects of our English Merchants there by a Misdemeanour Therefore it ought to be looked after very strictly All Arguments which may be deduced from Monopolies will have no influence upon this Case because this Grant doth not barr the Subject of any precedent Right 2. As to the second Point 't is not to be doubted but that since they are abridged in Interest an Action on the Case will lie Mr. E contra Pollexfen contra These Letters Patents extend to a great part of Europe and the consequence of this Iudgment if for the Plaintiffs must be that all Merchants trading thither must be of this Company or excluded from Trade in those Parts Now supposing that several Men may be of this Company 't is impossible that all Merchants who trade into those parts of Europe should be Members thereof for where should they meet to make By-Laws Neither is it probable that other Merchants who live remote from London will adventure their Stock and Estates with the Citizens What will become of the Clothiers must they sell their Cloth at the Rate imposed by this Company The Question is not whether the King may restrain his Subjects from trading to particular places or that the Trade of the People is not under the Government of the King nor whether he may make Leagues and Treaties for 't is certainly his Prerogative nor how the Staple was formerly which hath been long since discontinued and not easie to find out nothing will follow from either of these considerations which may be of any use in this Case But the Question is whether the King can make such a Grant excluding all others from trading for 't is expresly provided by the Statute of H. 7. 12 H. 7. c 6. that no Englishman shall take of another any Fine or Imposition for his Liberty to buy and sell The Case of the East-India Company is not like this for they who argued then did admit that if the Grant to that Company had restrained the Subjects from trading to Christian Countries it had been void but it only prohibiting a Trade with Infidels with whom we should have no Communication without the King's Licence lest we should forsake the Catholick Faith and turn Infidels for that reason it was held good And such a Licence was seen by my Lord Coke 2 Brownl 296. as he tells us in Michelburn's Case which was granted in the Reign of Ed. 3. But a Patent to exclude all others is void both by the Common Law and the Statute Law As to the Argument that the Common Law gives no Priviledge to Trade against the King's Prohibition because Foreign Princes may restrain the Trade to a particular number of Men can any Inference be made from thence that the Kings of England may therefore restrain Trade to a like number of Men All Patents prohibiting Trade are void 1 Rol. Rep. 4. 13 H. 4.14 If a Man would give give Lands in Mortmain or would have a new Way by taking in the Common High-way this may be done with the King's Licence and the Escheator or Sheriff is to examine the Fact and if it be ad dampnum alterius such a Licence is void as being prejudicial to the Subject F. N. B. 222. and if 't is void a fortiori a Grant to restrain Trade must be so All Engrossing and Monopolizing are void by the Common Law the one is a Species of the other 't is defined by
is likewise insufficient for it sets forth the Deed of Settlement c. coram praetextu the Defendant juxta fiduciam in eo positam was possessed of the Office ad eorum voluntatem Now an Office is a thing which lies in Grant 1 Leon. 219. and cannot be transferred from one to another without Deed and here is no Deed pleaded and as no Estate at will can be granted of an Office without Deed so likewise there cannot be a deputation of such Offce without it If then there can be no Tenant at Will of an Office but by Deed and no such Deed is pleaded then Mr. Lenthal had no power to make a Deputation to Cooling but neither Tenant at will nor Tenant for Life can make a Deputy if in the very Grant made to them there is not an express Clause for the execution of the Office per se vel sufficientem Deputatum suum The substance of all which is viz. First here is no Tenant at will But admitting him to be so he hath no authority to make a Deputy and if he should appoint a Deputy he executes the Office without Authority and may suffer Escapes Lastly by pleading of this Deed he hath alledged that the Estate was in the Trustees and that they permitted him to enjoy the Office coram praetextu he did execute it and receive the Profits now this is too general and an issue cannot be taken upon such a Plea he should have pleaded positively that it was demised to him at will and that he made a Deputy and then also the authority in rolls is against him where 't is held 2 Rol. Ab … that the Marshal of the Kings-Bench may grant the Office for Life but cannot give power to such grantee to make a Deputy Now if a Tenant for Life cannot make a Deputy certainly a Tenant at will hath no power so to do But suppose a Deputy might be made his neglect in the execution of the Office shall make a Forfeiture of the Estate of the Grantee for Life It cannot be reasonably objected in this Case Rol. Abr. 155. that 't is any hardship for Mr. Lenthal to lose this Office for any defect in Pleading for admitting the Plea to be good yet there is a cause of Forfeiture because the Marshal of the King's Bench being a ministerial Officer is required by Law to be a person of such Ability as to answer all Escapes that so Men may have the benefit of their Suits for otherwise he having nothing to answer they may lose their Debts Now here by a secret Grant Mr. Lenthal hath conveyed the Estate out of himself and yet still continues Officer in possession by which means the People are deprived of the Remedy which the Law provides for them and this is a sufficient cause of Forfeiture Then as to the Trustees they have not said any thing of the Escapes 't is true Mr. Lenthal hath traversed those which are alledged to be voluntary but that signifies nothing to them because they cannot take any benefit by the Plea of another for every one must stand and fall by his own Plea If therefore their non-attendance be a Forfeiture the entruders shall not help them because they come in without any colour of Right But the Council on the other side argued this last Point first E contra which was thus Viz. A Man seised of the Inheritance of the Office of Marshal of this Court conveys it in Trust the cestui que trust enjoys it and receives the Profits the Question now is whether the non-attendance of the Trustees being never required by the Court be a Forfeiture of this Office And as incident to this Question it was debated whether Mr. Lenthal was Tenant at will T is no Forfeiture for they are not bound to attend It cannot be denied but that this Office doth concern the Administration of Iustice but 't is to be considered what Estate Mr. Lenthal hath in it He had once an Estate in Fee but if it had been for Life or in Tail it may be setled as this is done but not for years because it may then come to an Administrator If Mr. Lenthal be the cestui que use Co. Lit. 404. Godb. 64. then he hath an Estate of which the Law takes notice for he may be a Iuror at the Common Law 'T is plain that he hath an Estate created by operatian of the Law for he is Tenant at Will and for that reason the attendance of the Trustees is not necessary but if the Estate had been directly granted to them then the Office had been forfeited for Non-attendance It cannot be denied but that this Office may be granted at Will for so is Sir George Reynell's Case 9 Co. 98. now if it may be granted at Will by the Possessor it may likewise be so granted by him who hath an Estate created by the Law for fortior est dispositio legis quam hominis and in this Case no Inconveniency would happen for if the Will be determined then the Grantor is the Officer When Mr. Lenthal had assigned this Office to the Trustees and they by a subsequent Deed had declared it to be in trust for him and that he should take the Profits during life he hath thereby a legal Estate at Will for a Cestuy que Trust by Deed is a Tenant at Will It hath been objected that a Tenancy at Will of an Office is void and to prove this a Case in Jones's Rep. was cited Jones 128. but the reason of that Case is guided by the particular nature of that Office which could not be aliened without the consent of the King If this Office is not alienable in its nature then Mr. Lenthal hath still the Fee-simple but that will not be admitted But this is not only a bare Estate at Will but a Trust for Life and such a Trust which hath a legal construction Godbolt 6◠for if a Feoffment be made in Trust that he should convey the Estate to another which the Feoffee afterwards refused to do the Cestuy que Trust may bring an Action against him so if he should be returned on a Iury 't is no Exception to say that he hath not liberum tenementum and therefore he is not an incompetent person to have the charge of Prisons if he may be impannelled on a Iury to try men for their Lives 1. Then as to the first Question upon the last point whether Mr. Lenthal had done any thing to determine his Tenancy at Will The Grant of this Office by him to Cooling will not amount to a determination of his Will because 't is a void Grant 'T is true this is denied by my Lord Coke in his Comment upon Littleton Sect. 71. where he saith If Tenant at Will grant over his Estate and the Grantee entreth he is a Disseisor for though the Grant be void yet it amounts to a determination of his Will What
a new Recovery Debt will not lie F.N.B. 122. E. and to prove this there is and Authority in Fitzherbert where a Prior had Iudgment for an Annuity and brought a Scire Fac. upon that Iudgment against the Successor of the parson who was to pay it and obtained a Iudgment upon that Scire Fac. to recover the arrearages and afterwards brought an Action of Debt upon the last Iudgment and the Book says fuit maintein There is another Case in 2 Leon. 2 Leon. 14. 4 Leon. 186. 15 H. 7.16 where 't is held that an Action of Debt will lye upon a Iudgment in a Scire Facias upon a Recognizance Which Objections may receive this Answer First As to the Case in Fitzherbert 't is admitted to be Law but 't is not an Authority to be objected to this purpose because the first Iudgment for the Annuity charges the Successor but the Original Iudgment in this Case doth not charge the Husband so the Cases are not parallel The like answer may be given to the Case in Leonard for a Recognizance is a Iudgment in it self and Debt will lie upon it without a Sci. Fa. upon that Iudgment But on the other side it was argued E contra that the award of execution is absolute against Husband and Wife for 't is a Recovery against both whereas before it was only the Debt of the Wife but now 't is joynt against the one as well as the other The Iudgment upon the Sci. Fa. is a distinct Action It cannot be denied but that if a Woman be indebted and marrieth the Husband is chargable during the Coverture Bro. Ab. tit Baron and Feme pl. 27. 49 E. 3.35 b. which shews that by the Marriage he is become the principal Creditor As to the Sci. Fa. t is true at the Common Law if a Man had recovered in Debt and did not sue forth Execution within a year and a day he must then bring a new Original 1 H. 5. 5. a 43 Ed. 3.2 b. and the Iudgment thereon had been a new Recovery but now a Sci. Fa. is given by the Statute instead of an Original and therefore a Iudgment thereon shall also be a new Iudgment for tho' t is a Iudicial Writ yet 't is in the nature of an Action because the Defendant may plead any matter in Bar of the Execution upon the first Iudgment 1 Inst 290. b. and 't is for this reason that a Release of all Actions is a good bar to it Besides Rast Ent. 193. 4 Leon. 186. Dyer 214. b. an Action of Debt will lie upon a Iudgment on a Sci. Fa. which shews that 't is an Action distinct from the Original and upon such a Iudgment the Defendant may be comitted to Prison several years afterwards without a new Sci. Fa. The Husband may have execution of a Iudgment recovered by him and his Wife after the death of his Wife without a Sci. Fa. 1 Mod. Rep. 179. for the Iudgment hath made it a proper Debt due to him and he alone may bring an Action of Debt upon that Iudgment and it seems to be very reasonable that he should have the benefit of such a Iudgment and yet not be charged after the death of his Wife when there hath been a Recovery against both in her life-time This is like the Case where a Devastavit is returned against Husband and Wife as Executrix Moor 299. 3 Cro. 216. Cro. Car. 603. Sid. 337. and a Iudgment thereon quod querens habeat executionem de bonis propriis the Wife dies yet the Husband shall be charged for the Debt is altered If it should be otherwise this inconvenience would follow that if the Wife should die F.N.B. 121. c. 1 Rol. Abr. 351. 10 H. 6.11 the Husband will possess himself of her Estate and defraud the Creditors so that he takes her but not cum onere But the Law is otherwise for if a Feme being Lessee for years doth marry and the Rent is behind and she dies the Husband shall be charged with the Rent arrear because he is entituled to the Profits of the Land by his marriage To which it was answered that if a Man should marry an Exerecutrix and then he and his Wife are sued and Iudgment obtained against them to recover de bonis testatoris and thereupon a Fi. Fa. is awarded to levie the Debt and Damages and the Sheriff returns a Devastavit and then the Wife dies the Husband is not chargeable because the Iudgment is not properly against him who is joyned only for conformity but if upon the return of the Devastavit there had been an award of execution De bonis propriis that would have been a new Iudgment and the old one De bonis testatoris had been discharged 1 Roll. Abr. 351. and then the Husband must be charged for the new wrong Adjornatur Afterwards in 1 Will. Mar. the Iudgment was affirmed Bowyer versus Lenthal INdebitatus Assumpsit quantum meruit ad insimul computasset Valerent for Valebant good after Verdict The Plaintiff had a Iudgment by default in the Court of Common-Pleas and a Writ of Enquiry was brought and entire Damages given and now the Defendant brought a Writ of Error and it was argued that if any of the Promises be ill Iudgment shall be reversed the Error now assigned was in the second Promise Viz. That in consideration that the Plaintiff would let the Defendant have Meat Drink and Lodging he promised to pay so much Quantum rationabiliter valerent it should have been valebant at the time of the Promise made Sed non allocatur So the Iudgment was affirmed DE Termino Paschae Anno 4 Jac. II. in Banco Regis 1688. Wright Chief Justice Holloway Justices Powel Justices Allibon Justices Powis Attorny General Wm. Williams Sollicitor General NOTA Wednesday May 2. being the first day of this Term Sir Bartholomew Shower Recorder of London was called within the Bar. Heyward versus Suppie IN an Action of Covenant which was to make such an Assignment to the Plaintiff Covenant to make an Assignment as Council should advise according to an Agreement made between him and the Defendant as Council should direct and advise and for non-performance thereof this Action was brought the Defendant pleaded non est factum and Iudgment was obtained against him Vpon which a Writ of Error was brought and the common Error assgned It was objected that the Plaintiffs Council should give the advice because he is the person interested This Objection was answered by Mr. Pollexfen who said that the Defendant had likewise an interest in this matter for 't is an advantage to him to make the Assignment that his Covenant might be saved 't is true it had been otherwise if the Covenant had been to make such a Conveyance as Council should advise for then the person to whom the Covenant is made may chuse whether he will have a Feoffment
Release or Confirmation and then his Council should advise what sort of Conveyance is proper But here it is to make an Assignment and such as the Parties had agreed on If a Man should be bound to give another such a Release as the Iudge of the Prerogative Court shall think fit 5 Co. 23. Lambs Case 1 Rol. Abr. 424. pl. 8. the person who is so bound must procure the Iudge to direct what Release shall be given because the Condition is for his benefit and he hath taken upon him to perform it at his Peril 'T is usual for Men to have Council on both sides to put their Agreements into method but in this Case it being left generally as Council shall direct what reason can be given why the Defendants Council shall not be intended especially when it seems by the penning of the Covenant he shall For an Assignment is to be made as Council shall direct and here being a Verdict for the Plaintiff it must now be presumed that the Defendants Council was first to give the advice and then he was to make the Assignment E contra E contra It was argued that first as to the Verdict 't is not materially objected in this Case because the Plea is non est factum so that nothing of the special matter could come in Evidence Now admitting this Covenant to be general yet one of the Parties must make his choice of Council before he can entitle himself to an Action All Deeds are taken according to the general intendment and therefore by this Covenant his Council is to advise to whom the Assignment is to be made 3 Bulstr 168. for if the Council of the Defendant should advise an insufficient Deed that would not have saved his Covenant Befides the Plaintiff hath not averred that Council did not advise and therefore the Defendant could not plead any thing but non est factum Adjornatur Anonymus A Pleint was removed out of the Lord Mayors Court by Habeas Corpus the Return whereof was Exceptions to a By-Law that the City of London was an ancient City Incorporate and that time out of mind there was a Custom that the Portage and unlading of all Coals and Grain coming thither should belong to the Mayor and Aldermen c. That there was a Custom for them to regulate any Custom within the City c. Then they set forth an Act of Common-Council by which the Porters of Billingsgate were made a Fellowship and that the Meeters of Corn should from time to time give notice to the Porters to unlade such Corn as should arrive there and that no Bargeman not being Free of the said Fellowship shall unlade any Corn upon the Forfeiture of 20 s. to be recovered in an Action brought in the Name of the Chamberlain and that the Party offending shall have no Essoign or Wager of Law Then they set forth the Iudgment in the Quo Warranto and the re-grant and that the Defendant not being of the said Fellowship did unlade one hundred Quarters of Malt c. Serjeant Thompson took many Exceptions to this By Law but the most material were 1. It appears upon the Return that the City of London hath assumed an Authority to create a Fellowship by Act of Common Council which they cannot for 't is a Prerogative of the Crown so to do and they have not averred or shewed any special Custom to warrant such an Authority 2. They have made this By-Law too general for if a Man should carry and unlade his own Goods there he is lyable to the Forfeiture in which Case he ought to be excepted 3. This Act of Common Council prohibits Bargemen not being Free of the Fellowship of Porters to unlade any Coals or Grain arriving there and they have not averred that the Malt unladed did arrive c. so they have not pursued the words of the By-Law 4. They say in this Law Godb. 107. that the person offending shall have no Essoign or Wager of Law which is a Parliamentary Power and such as an inferiour Iurisdiction ought not to assume Adjornatur Beak versus Thyrwhit THere was a Sentence in the Court of Admiralty Whether Trover will lie for a Ship after Sentence in Admiralty for the same Ship concerning the Taking of a Ship and afterwards an Executrix brought an Action of Trover and Conversion for the same The Defendant after an Imparlance pleads that at the time of the Conversion he was a Servant to King Charles the Second and a Captain of a Man of War called the Phoenix and that he did seize the said Ship for the Governour of the East-India Company she going in a trading Voiage to the Indies contrary to the King's Prohibition c. And upon a Demurrer these Exceptions were taken to this Plea 1. The Defendant sets forth that he was a Servant to the King but hath not shewed his Commission to be a Captain of a Man of War 2. That he seized the Ship going to the Indies contrary to the King's Prohibition and hath not set forth the Prohibition it self It was Argued by the Council contra That it may be a Question whether this was the Conversion for which this Action is brought for it was upon the Sea and the Defendant might plead to the Iuisdiction of this Court the Matter being then under the Cognizance of the Admiralty But as to the Substance of this Plea 't is not material for the Defendant either to set forth his Commission or the King's Prohibition he hath shewed enough to entitle the Court of Admiralty to a Iurisdiction of this Cause and therefore this Court cannot meddle with it for he expresly affirmeth that he was a Captain of a Man of War and did seize this Ship c. which must be intended upon the Sea so that the Conversion might afterwards be upon the Land Cro. Eliz. 685. yet the original cause arising upon the Sea shall and must be tried in the Admiralty and it having already received a determination there shall not again be controverted in an Action of Trover The Case of Mr. 3 Keb. 785. Hutchinson was cited to this purpose who killed Mr. Colson in Portugal and was acquitted there of the Murder the Exemplification of which Acquittal he woduced under the great Seal of that Kingdom being brought from Newgate by an Habeas Corpus to this Court notwithstanding the King was very willing to have him tried here for that Fact the consideration whereof he referred to the Iudges who all agreed that he being already acquitted by their Law could not be tryed again here Adjornatur Smith versus Pierce A Special Verdict was found in Ejectment A Term for years was devised for payment of Debts the Remainder over in Tail he in Remainder enters and levies a Fine and settles the Land upon his Wife for life and dies the Wife surviving and the Debts not paid whether this Term is barred by
which he claims he ought to shew the other Will by which it must appear that nothing is contradictory to it or that it doth confirm the first but if Presumptions shall be admitted it must be in favour of the Heir for nothing shall be presumed to disinherit him Afterwards in Trinity-Term 5 Willielmi Iudgment was given for the Plaintiff and a Writ of Error was brought in the House of Peers to reverse that Iudgment but it was affirmed Anonymus A Writ of Error was brought to reverse a Iudgment in the Common Pleas in an Ejectment for Lands in the County of Essex in which a Special Verdict was found viz. That R. F. What Words in a Will make Tenants in Common was seized in Fee of the Lands in question who had Issue two Daughters Frances Jane Frances had Issue Philp Frances Anne R. F. the Father devised unto Philip Frances and Anne the Children of his Daughter Frances and to Jane his other Daughter the Rents and Profits of his Mannor of Spain for thirty years to hold by equal parts viz. the three Grandchildren to have one Moiety and his Daughter Jane the other Moiety And if it happen that either of them should die before the thirty years expired then the said Term should be for the benefit of the Survivor and if they all die then the same was devised over to other Relations Afterwards he made a Codicil in these words viz. I give Power and Authority to my Executors to let my whole Lands for the Term of thirty years for the benefit and behalf of my Children Anne one of the Granchildren died without Issue Frances another of the Grandchildren died but left Issue The first Question was whether the Power given to the Executors by the Codicil will take away that Interest which was vested in the Grandchildren by the Will Mr. Appleton argued that it would not because the Executors had only a bare Authority to let it or improve it for the benefit of the Children there was no Devise of the Land to them If Power be given to Executors to sell Lands 't is only an Authority and not an Interest in them but a bare Authority only to let is of much less importance 2. After the Testator had devised the Profits of these Lands to his Grandchildren and Daughter equally to be divided during the term and had provided that if any dye without Issue that then it should survive and if all dye then to remain over to collateral Relations c. Whether Frances being dead but leaving Issue her Interest shall survive to Philip or go to such her Issue As to that he held that the Testator made them Tenants in Common by equal parts and therefore he devised it by Moieties in which there can be no Survivorship 'T is like a Devise to the Wife for life 2 Cro. 448. 1 Roll. Abr. 833. King versus Rumbal Cro. Car. 185. and after her decease to his three Daughters equally to be divided and if any of them die before the other then the Survivors to be her Heirs equally to be divided and if they all die without Issue then to others c. the Daughters had an Estate Tail and there was no Survivorship So in this Case it shall never go to the third Grandchild as long as any Issue of the second are living On the other side it was argued that they are Ioyntenants and not Tenants in Common E contra for the Testator having devised one Moiety to his three Grandchildren joyntly by equal parts that will make them Ioyntenants But the Court were all of Opinion that the words in the Will shew them to be Tenants in Common for equally to be divided runs to the Moieties So the Iudgment was affirmed Woodward 's Case THE Statute of 23 H. 8. c. 9. Church Ornaments are a personal Charge upon the Inhabitants and not upon those who live else where though they occupy Lands in that Parish Godb. 134. pl. 4. 152. pl. 29. 154. pl. prohibites a Citation out of the Diocess wherein the Party dwelleth except in certain Cases therein mentioned one whereof is viz. Except for any Spiritual Cause neglected to be done within the Diocess whereunto the Party shall be lawfully cited One Woodward and others who lived in the Diocess of Litchfield and Coventry but occupied Lands in the Diocess of Peterborough were taxed by the Parishioners where they used those Lands for the Bells of the Church and they refusing to pay this Tax a Suit was commenced against them in the Bishop of Peterborough's Court who thereupon suggested this Matter and prayed a Prohibition because they were not to be charged with this Tax it being only for Church Ornaments And a Prohibition was granted the reason given was because 't is a personal charge to which the Inhabitants only are liable and not those who only occupy in that Parish and live in another but the repairing of the Church is a real Charge upon the Land let the Owner live where he will DE Term. Sanct. Trin. Anno 4 Jac. II. in Banco Regis 1688. Wright Chief Justice Holloway Justices Powel Justices Allibon Justices The Bishop 's Case Friday June 15th THE King having set forth a Declaration for Liberty of Conscience did on the 4th day of May last by Order of Council enjoyn that the same should be read twice in all Churches c. and that the Bishops should distribute it through their respective Diocesses that it might be read accordingly The Archbishop of Canterbury who then was together with six other Bishops petitioned the King setting forth that this Declaration was founded upon a dispensing Power which had been declared illegal in Parliament and therefore they could not in Honour or Conscience make themselves Parties to the Distribution and Publication of this Declaration who thereupon were summoned before the King in Council and refusing there to give Recognizance to appear before the Court of Kings Bench they were committed to the Tower by Warrant of the Council-Board The Attorney General moved for a Habeas Corpus retornable immediate and the same Morning in which that Motion was made Sir Edward Hales Lieutenant of the Tower returned the same and they were all brought into the Court. The Substance of the Return was viz. That they were committed to his Custody by Warrant under the Hands and Seals of the Lord Chanchellor Jefferies and also naming more of the Lords of the Privy-Council Dominos Concilij for contriving making and publishing a Seditious Libel against the King c. Then it was prayed that the Return might be filed and that the Information which was then exhibited against them for this Crime might be read and that they might all plead instanter Serjeant Pemberton Mr. Finch and Mr. Pollexfen oppsed the reading of it and moved that the Bishops might be discharged because they were not legally before the Court for it appears upon the Return that there is no lawful cause of
Commitment and that for two reasons 1. Because the persons committing had not any Authority so to do for upon the Return it appears that they were committed by several Lords of the Council whereas it should have been by so many Lords in Council or by Order of Council 2. They ought not to be committed for this Fact which is only a Misdemeanour The Bishops are Peers and therefore the Process ought to be a Summons by way of Subpoena out of the Crown Office and not to commit them the first time If a Man comes in voluntarily he cannot be charged with an Information neither can a person who is found in Court by any Process be so charged if it be illegal as if a Peer be committed by Capias Iustice Allybon replyed that when a Commitment was made by the Lord Chief Iustice of this Court his Name is to the Warrant but not his Office 't is not said Committitur per Capitalem Justiciarium Angliae c. for he is known to be so and why should not a Commitment by such persons Dominos Concilij be as good as a Commitment by Sir Rob. Wright Capitalem Justiciarium That it was enough for the Officer to return his Warrant and when that is done the Court will presume that the Commitment was by the Power which the Lords in Council had and not by that Power which they had not To which it was answered by Mr. Finch that the Lord Chief Iustice always carries an Authority with him to commit where-ever he goes in England but the Lords of the Privy Council have not so large a Power for though they be Lords of the Council always yet they do not always act in Council Then the Statute of 17 Car. 1. cap. 10. was read in which there is mention made of a Commitment by the Lords of the Privy Concil c. But it was answered that that Statute was to relieve against illegal Commitments and those enumerated in that Act were such only and none else And it was strongly insisted that Peers of the Realm cannot be committed at the first instance for a Misdemeanour before Iudgment and that no President can be shewed where a Peer hath been brought in by Capias which is the first Process for a bare Misdemeanour The constant Proceedings in the Starr-Chamber upon such Informations were Crompt Jurisdiction 33. Dyer 315. 4 Inst 25. Regist 287. viz. First the Lord Chancellor sent a Letter to the person then if he did not appear an Attachment went forth The Kings Council answered Sir Baptist Hick's Case Hob. that a Peer may be committed for the Breach of the Peace for which Sureties are to be given and can there be any greater Breach of the Peace than a Libel against the King and Government 'T is certainly such a Breach of the Peace for which Sureties ought to be demanded for where there is any seditious Act there must be a Breach of the Peace and if Sureties are not given then the person must be committed The Objections were over-ruled by three Iudges Then the Information was read which in Substance was viz. That the King by vertue of his Prerogative did on the 4th day of April in the third year of his Reign publish his gracious Declaration for Liberty of Conscience which was set forth in haec verba That afterwards viz. 27 Aprilis in the fourth year of his Reign the King did publish another Declaration reciting the former in which he expressed his care that the Indulgence by him granted might be preserved c. that he caused this last Declaration to be printed and to manifest his favour more signally towards his Subjects on the 4th day of May 1688. it was Ordered in Council that his Declaration dated the 27th day of April last be read on two several days in all Churches and Chappels in the Kingdom and that the Bishops cause the same to be distributed through their several Diocesses c. That after the making of the said Order c. the Bishops naming them did consult and conspire amongst themselves to lessen the Authority and Prerogative of the King and to elude the said Order and in further prosecution of their said Conspiracy they with Force and Arms did on the 18th day of May c. unlawfully maliciously c. frame compose and write a Libel of the King subscribed by them which they caused to be published under the pretence of a Petition Then the Petition was set forth in haec verba In contemptum dicti Domini Regis c. The King's Council moved that the Defendants might plead instanter for so they said is the course of the Court when a Man is brought thither in Custody or appears upon Recognizance But the Council on the other side prayed an Imparlance and a Copy of the Information and argued that the Defendants ought not to plead instanter because their Plea ought to be put in Writing and that they ought to have time to consider what to plead that it was impossible to make any Defence when they did not know the Accusation and that the Practice of the Court anciently was with them 'T is true when a Subpoena is taken out and the Party doth not appear but is brought in by Capias he shall plead instanter and the reason is because he hath given delay to the Cause So 't is likewise in Cases of Felony or Treason but not to an Information for a Misdemeanour Then the Clerk of the Crown informed the Court that it was the Course to plead instanter in these following Cases viz. when the person appears upon a Recognizance or in propria persona or is a Prisoner in Custody upon any Information for a Misdemeanour where no Process issued out to call him in As to the Objection that the Defendants cannot make any Defence without a Copy of the Information the Vsage is otherwise even in Cases where a Man's Life is concerned and what greater difficulty can there be to defend an Accusation for a Misdemeanour than a Charge for High-Treason certainiy the Defendants all know whether they are innocent or not These Points being over-ruled by the Court the Archbishop offered a Plea in writing the Substance of which was that they naming all the Defendants were Peers of Parliament and ought not to be compelled to answer this Misdemeanour immediately but they ought to appear upon due Process of Law and upon their Appearance to have a Copy of the Information and afterwards to imparle and because they were not brought in by Process they pray the Iudgment of the Court. This Plea was offered to the end that what was denied before upon a Motion might be settled by the Opinion of the Court but it was over ruled Then they pleaded severally Not-Guilty and were tried at the Barr a Fortnight afterwards by a Middlesex Iury and acquitted Anonymus In the Common-Pleas AN Action of Debt was brought upon a Bond against the Defendant
ought to be left out and of that Opinion was the Court and therefore a Rule was made that he might discontinue this Action without Costs Mordant versus Thorold Hill 1 2 Gulielmi Rotulo 340. THE Plaintiff brought a Scire Fac. upon a Iudgment The Case was thus Viz. Ann Thorold recovered in Dower against Sir John Thorold in which Action Damages are given by the Statute of Merton 20 H. 3. c. 1. Sir John Thorold brought a Writ of Error in B. R. and the Iudgment was affirmed Then the Plaintiff in Dower brought a Writ of Enquiry for the Damages and married Mr. Mordant and died before that Writ was executed Mr. Mordant takes out Letters of Administration to his Wife and brought a Sci. Fa. upon the Iudgment and the question was whether it would lie This depended upon the construction of the Statute of King Charles the II. which enacts That in all personal Actions 17 Car. 2. c. 8. and real and mixt the death of either party between the Verdict and the Iudgment shall not hereafter be alledged for Error so as such Iudgment be entred within two Terms after such Verdict Serjeant Pemberton insisted that this was a judicial Writ and that the Administrator had a right to it though the Wife died before the Profits were ascertained by the Writ of Enquiry 't is no more than a plain Sci. Fa. upon a Iudgment which an Executor may have and which was never yet denied though this seems to be a Case of the first Impression The Council on the other side argued that 't is true an Executor may have a Scire Facias upon a Iudgment recovered in the life of the Testator by reason only of such Recovery but this Scire Facias is brought for what never was recovered because the Wife died before any thing was vested in her for the Iudgment will stand so as to effect the Lands but not for the Damages Curia When a Statute which gives a remedy for mean Profits is expounded it ought to be according to the Common Law Now where entire Damages are to be recovered and the Demandant dies before a Writ of Enquiry executed the Executor cannot have any remedy by a Scire Facias upon that Iudgment because Damages are no duty till they are assessed Sed adjornatur DE Term. Sanctae Trin. Anno 2 Gulielmi Mariae Regis Reginae in Banco Regis 1690. Shotter versus Friend Vxor ' Hill 2 Willielmi Rot. 39. THE Plaintiff and his Wife declared upon a Prohibition setting forth Proof by one Witness good in the Spiritual Court that John Friend on the 13th of October 22 Car. 2. made his Will by which he bequeathed to Mary Friend 10 l. to be paid to her within two years after his decease and that he made Jane the Wife of the Plaintiff Shotter Executrix and dyed that the said Executrix whilst sole and unmarried paid the said Legacy to Mary Friend who is since dead that Thomas Friend the Husband of the said Mary did after her death demand this Legacy in the Consistory Court of the Bishop of Winton that the Plaintiff pleaded payment and offered to prove it by one single Witness which Proof that Court refused though the Witness was a person without Exception and thereupon Sentence was given there against the Plaintiff which Sentence was now pleaded and upon Demurrer to the Plea The Question was whether upon the whole matter the Defendant should have a Consultation or whether a Prohibition should be granted because the proof by one Witness was denied by that Court. It was argued that the Defendant should not have a Consultation because Matters Testamentary ought to have no more favour than things relating to Tythes in which Cases the Proof by one Witness hath been always held good So 't is in a Release to discharge a Debt which is well proved by a single Testimony and it would be very inconvenient if it should be otherwise for Feoffments and Leases may come in question which must not be rejected because proved by one Witness A Modus decimandi comes up to this Case upon the Suggestion whereof Prohibitions are never denied and the chief reason is because the Spiritual Court will not allow a Modus to be any discharge of Tythes of Kind The Courts of Equity in Westminster-Hall give Relief upon a Proof by one Witness so likewise do the Courts of the Common Law if the Witness is a good and credible person 'T is true a Prohibition shall not go upon a Suggestion that the Ecclesiastical Court will not receive the Testimony of a single Witness If the Question is upon Proof of a Legacy devised or Marriage or not or any other thing which originally doth lie in the Cognizance of that Court but payment or not payment is a matter of Fact triable at the Law and not determinable there if therefore they deny to take the Evidence of a single Witness a Prohibition ought to go 2 Inst 608. 2. The Sentence is no obstacle in this Case because the Plaintiff had no Right to a Prohibition until the Testimony of his Witness was denied and Sentence thereupon given and this is agreeable to what hath been often done in cases of like nature As for instance Cro. Eliz. 88. Moor 907. Prohibitions have been granted where the Proof of a Release of a Legacy by one Witness was denyed So where the Proof of payment of Cythes for Pidgeons was denied upon the like Testimony Cro. Eliz. 666. Moor 413. 2 Rol. Rep. 439. 2 Rol Abr. 300. pl. 9. 299 pl. 14 17. Yelv. 92. Latch 117. 3 Bulst 242. Hutt 22. So where a Suit was for Subtraction of Cythes and the Defendant pleaded that he set them out and offered to prove it by by one Witness but was denied a Prohibition was granted And generally the Books are that if the Spiritual Court refuse such Proof which is allowed at the Common Law they shall be prohibited There is one Case against this Opinion which is that of Roberts in 12 Co. 12 Co. 65. Rep. but it was only a bare Surmise and of little Authority Those who argued on the other side held that a Consultation shall go E contra and that for two Reasons 1. Because a Prohibition is prayed after Sentence 2. Because the Ecclesiastical Court have an original Iurisdiction over all Testamentary things As to the first Point 'T is plain that if that Court proceed contrary to those Rules which are used and practised at the Common Law yet no Prohibition ought to go after Sentence but the proper remedy is an Appeal 2. It cannot be denied but that that Court had Cognizance of the principal matter in this Case which was a Legacy and Payment or not is a thing collateral Now wherever they have a proper Iurisdiction of a Cause both that and all its dependences shall be tried according to their Law which rejects the Proof by a single Witness
first Son of the Body of the said Simon Leach my Brother lawfully to be begotten and to the Heirs Males of the Body of such first Son lawfully to be begotten with like Remainder in Tail Male to the second third fourth c. Sons and for default of such Issue to Sir Simon Leach my Kinsman being Son and Heir of Simon Leach of Cadley in the County of Devon ' Esquire deceased and to the Heirs Males of his Body lawfully to be begotten and for default of such Issue to the right Heirs of me the said Nicholas Leach for ever They find that Nicholas Leach died without Issue that Simon Leach his Brother and Heir with Remainder over in Contingency as aforesaid entered and afterwards married Anne the Daughter of Unton Croke and that after the said Marriage viz. 20 August 25 Car. 2. he executed a Deed purporting a * Two months before a Son was born Surrender of the said Lands and Tenements to Sir Simon Leach in manner following viz. To all Christian People c. I Simon Leach of Elsefield in the County of Oxon Esquire send greeting Know ye that I the said Simon Leach for divers good Causes and valuable Considerations me hereunto moving have granted surrendred remised released and for ever quit claimed and confirmed and by these Presents do grant surrender remise release and for ever quit claim and confirm unto Sir Simon Leach of Cadley in the County of Devon Knight of the Bath and his Heirs and Assigns for ever all and every the Mannors c. To have and to hold the same to the said Sir Simon Leach for ever They find that Simon Leach Brother of the Testator was not compos mentis at the time of the sealing and delivery of the said Surrender That on the 10th day of November 25 Car. 2. which was two Months after this Surrender made the said Simon Leach had Issue of his Body Charles Leach who is his Son and Heir that he after the death of his Father entred and made a Lease to Tompson by vertue whereof he was possessed until the Defendant Sir Simon Leach entred upon him c. Two Questions were made upon this Special Verdict 1. Whether this Surrender by a person Non compos mentis was void ab initio and so could pass no Estate to the Surrendree for if so then though the Ideot himself is estopped by his own Act yet that can be no Barr to him in the Remainder because the Act being void the Estate in Law still remains in him 2. If it is not void in its self then whether it is voidable after the death of the Party by Charles Leach he claiming by virtue of a collateral Remainder and not as Heir at Law to the Devisor As to the first Point it was argued that the Cases of Lunaticks and Infants go hand in hand and that the same Reasons govern both that the Law is clear that a Surrender made by an Infant is void therefore a Surrender made by a person Non compos mentis is also void Fleta lib. 1. c. 11. num 10. the reason is because they know not how to govern themselves And as Fleta saith Semper judicabuntur infra aetatem F.N.B. 202. a. Regist 238. b. if he makes any Conveyance of his Land the Law hath provided a remedial Writ even for himself to avoid his own Alienation His Feoffments are void 39 H. 6.42 Bract. fol. 12. no. 5. fol. 100 120. Brit. cap. 34. fol. 88. Perk. 5. pl. 21. and if Warranties are annexed those they are also void if he granteth a Rent-Charge out of his Land that is likewise void and if the Grantee should distrain for this Rent after the death of the Grantor his Heir shall have an Action of Trespas against him and therefore by parity of Reason this Surrender must be void In Fitzherbert Tit. Grantee pl. 80. there is a Case to this purpose viz. An Assize was brought against the Tenant supposing that he had no right of Entry unless under a Disseisor by whom the Brother of the Demandant was disseised The Tenant pleaded that the supposed Disseisor was the Father of the Demandant whose Heir he then was and that his said Father made a Feoffment of the Land to the Tenant with Warranty and demanded Iudgment c. The Demandant replied that his Father at that time was Non compos mentis and the Tenant was compelled to rejoin and take Issue upon the Insanity which shews that if he was Non compos he could not have made such a Feoffment So if he maketh a Feoffment in Fee and afterwards taketh back an Estate for Life Fitz. Remitter pl. 23. the Non compos shall be remitted to his ancient Title which shews likewise that such Feoffment was void for the Remitter supposeth a former Right 'T is incongruous to say that Acts done by persons of no discretion shall be good and valid in the Law such are Infants and Lunaticks and it stands with great reason that what they do should be void especially when it goes to the destruction of their Estates Therefore 't is held that if a person Non compos releaseth his right that shall not barr the King in his Life time but he shall seize the Land and if he die his Heir may bring the Writ Dum non fuit compos mentis and may enter 'T is for this reason that a Release made by an Infant Executor is no barr because it works in destruction of his Interest 5 Co. 27. Russel 's Case 34 Ass pl. 10. the reason is the same where a person Non compos maketh a Feoffment for that likewise destroys his Estate So likewise an Infant can neither surrender a future Interest by his acceptance of a new Lease Cro. Car. 502. nor make an absolute Surrender of a Term of which he is possessed for such a Surrender by Deed is void 'T is agreed that if a Man Non compos maketh a Feoffment by Letter of Attorny 't is meerly void because 't is not delivered to the Feoffee by the hands of the Feoffor but 't is said that if it be delivered by him in person then 't is only voidable at any time by Action or Entry Finch 's Law 102. And of this Opinion was Sir Henry Finch in his Discourse of the Law who in the Margen of his Book quotes several Authorities in the Year Books to justifie this Opinion and amongst the rest he cites Sir Anthony Fitzherberts Natura Brevium 35 Ass pl. 10. who taking notice of the old Authorities seems to reject their Reasons who affirm a person Non compos shall not avoid his own Act when he recovers his memory because he cannot then tell what he did when he was in his former Condition But certainly when he recovers his Iudgment he is then of Ability to consider what was done during his Insanity and to avoid such Acts by shewing how his indisposition came by the
not avoid such Acts done by their Ancestors as well as Privies in Blood because the Incapacity of the Grantor goes to both Those who argued on the other side held that the Acts of Infants and persons non compos were not void in themselves but only voidable E contra 'T is true some Deeds made by an Infant are void not meerly Cro. Car. 502. because executed by him for some are good and those only are void which are made to his prejudice Such also are void which give Authority to a third person to do an Act as if an Infant enter into a Bond Perk. Sect. 139. March 141. and give it to a Stranger to deliver to the Obligee when he shall attain his full Age this is void because the person derived his Authority from an Infant who by reason of his Nonage could not give such a Power but if the Infant himself had delivered the Bond to the Obligee it had been only voidable Lit. Sect. 259. The Father of the Demandant was an Infant when he sold his Estate 46 E. 3.34 his Son brought the Writ Dum fuit infra-aetatem against the Alienee and it was held good which would not have been allowed if the Grant had been void All the old Authorities prove that the Acts of Infants and Ideots are not void but voidable If an Infant is bound in an Obligation 't is not void Cro. Eliz. 127. 2 Inst 483. for he may agree to it when of Age he cannot plead Non est factum and he may refuse to plead his Infancy If he be entituled to a Term for years Cro. Eliz. 126. Cro. Car. 502. and maketh a Surrender by the acceptance of a new Lease 't is good if 't is for his advantage either by the lessening of the Rent or the encreasing of the Term but if he hath no benefit by it 't is voidable only So he may purchase Lands because the Law intends it for his benefit and he can receive no damage by such a Purchase for he may either perfect or avoid it at his full Age which shews that such Acts are not voidable ab intio but only voidable as the Case shall require The Statute of 23 H. 6. Enacts 23 H. 6. c. 10. That Sheriffs shall take no Bonds upon an Arrest but for the Appearance of the Party and to themselves only and that a Bond otherwise taken colore officii shall be void that is not in its self but by pleading the Statute for 't is not to be avoided by pleading Non est factum So upon the Statute of Additions 1 H. 5. c. 5. 3 Co. 59. a. where a Man is outlawed without the addition of his condition or place of abode in the original Writ such Outlawry shall be void not of its self but it may be avoided by Writ of Error In like manner there are many Authorities to prove that the Acts of a person non compos are not void but voidable So is the first Resolution in Beverly 's Case that a Deed or Feoffment made by him is to be avoided by any other person but not by himself Thus stood the Law in the time of E. 35 Ass pl. 10. 3. For in an Assize the Defendant pleaded that the Plaintiff had released to him by Deed who replied that at the time of the making of the Deed he was Non compos The Court of Common Pleas seemed then to be of Opinion that the Replication was not good which shews that the Deed in its self was not void 't is true the Assize was then adjourned because that Opinion was directly against the Register which is that the Writ of Dum non fuit compos may be brought by the person himself notwithstanding his own Alienation But this hath since been denied to be Law Cro. Eliz. 398. for in Debt upon Bond the Defendant pleaded that he was Non compos and upon a Demurrer the Plea was over-ruled And of this Opinion was Sir William Herle Chief Iustice of the Common Pleas in 5 E. 5 E. 3.70 3. which was long before the Book of Assize So the Law continued till the Reign of H. 35 H. 6. f. 42. 6. viz. that the person himself could not avoid his own Feoffment either by Entry or Action The Writs de Ideota inquirendo and Dum non fuit compos import the same thing viz. that Acts done by them are not void for the first recites that the Ideot alienavit and the other that the Lunatick * Dimisit is there intended where the Estate is conveyed by Livery or for life and Alienavit is a Conveiance by Feoffment 17 E. 2. Stamf. Praerog 34. Dimisit terras Now if their Acts had been void ab initio then they cannot be supposed either to alien or lease their Lands which shews that such Acts are only voidable And as a farther Argument to enforce this the Statute de Praerogativa Regis was mentioned which gives the Custody of the Ideots Lands to the King during their Lives provided that afterwards it be given to their right Heirs ita quod nullatenus per eofdem fatuos alienetur Now to what purpose were these Words added if such an Alienation was void in it self Besides the Cases of Ideots mentioned on the other side and Lunaticks are not parellel for an Ideot hath a different incapacity from one Non compos 't is perpetual in an Ideot and for that reason the Law gives the King an Interest in him But a person non compos may recover his Senses Co. Lit. 2. b. Fitz. tit Issue 53. he may purchase Lands may grant a Rent-charge out of his Estate and shall not plead his insanity to defeat his own act If therefore this Surrender was not void at the time of the execution thereof but voidable only during the Life of the Surrenderor by office found then the Question cannot properly be whether the Lessor of the Plaintiff shall avoid it for that would be to revest the Estate in some body but the Surrender was good and the Estate for Life was utterly determined so that nothing being left to support the contingent Remainders those are also destroied And to prove this Chudleigh 's Case was relied on which was Co. 120. Sir R. C. was seised in Fee of the Manor of Hescot in Devon and having Issue Christopher and three other Sons made a Feoffment to the use of himself and his Heirs on the Body of Mary then the Wife of Mr. Carew to be begotten and for default of such Issue then to the use of his last Will c. for ten years and after the Expiration of that Term then to his Feoffees and their Heirs during the Life of Christopher Remainder to the Issue Male of Christopher in Tail with like Remainder to his other Sons Remainder to his own right Heirs He died without Issue by Mrs. Carew But before Christopher had any Son born the
said Feoffees made a Feoffment of the Land in Fee without any consideration afterwards Christopher had Issue two Sons Now the Vses limited by the Feoffment of Sir R. C. being only contingent to the Sons of Christopher and they not being born when the second Feoffment was made to their Father the Question now was whether they shall be destroied by that Feoffment before the Sons had a Being in Nature or whether they shall arise out of the Estate of the Feoffees after their Births And it was adjudged in the Exchequer Chamber that the last Feoffment had divested all the precedent Estates and likewise the Vses whilst they were contingent and before they had an existence and that if the Estate for Life which Christopher had in those Lands had been determined by his death before the birth of any Son the future Remainder had been void because it did not vest whilst the particular Estate had a being or eo instanti that it determined So in this Case Mr. Leach cannot have any future Right of Entry for he was not born when the Surrender was made so that the contingency is for ever gone Suppose a Feoffment in Fee to the use of himself and his Wife and to the Heirs of the Survivor The Husband afterwards makes another Feoffment of the same Lands Cro. Car. 102. and dies and the Wife enters the Fee shall not vest in her by this Entry for she had no right the Husband has destroyed the contingent use by the last Feoffment so that it could not accrew to her at the time of his death Nay tho' the particular Estate in some Cases may revive yet if the contingency be once destroyed it shall never arise again As where the Testator being seized in Fee of Houses 2 Sand. 380. devised the inheritance thereof to such Son his Wife should have after her Life if she baptized him by his Christian and Sir-Name and if such Son dye before he attain the Age of 21 years then to the right Heirs of the Devisor He died without Issue the Widow married again then the Brother and Heir of the Testator before the birth of any Son conveyed the Houses thus Viz. To the Husband and Wife and to their Heirs and levied a Fine to those uses Afterwards she had a Son baptised by the Testator's Christian and Sir-Name Then the Husband and Wife sold the Houses to one Weston and his Heirs and levied a Fine to those Vses It was adjudged that by the Conveyance of the Reversion by the Brother and Heir of the Testator to the Baron and Feme before the Birth of the Son her Estate for Life was merged and tho' by reason of her Coverture she might waive the Joint-tenancy 2 Roll. Abr. 796. Wigg versus Villiers and reassume the Estate for Life yet that being once merged the contingent Remainders are all destroied Curia Cro. Car. 502. The Grants of Infants and of persons non compos are parallel both in Law and Reason and there are express Authorities that a Surrender made by an Infant is void therefore this Surrender by a person non compos is likewise void If an Infant grants a Rent-charge out of his Estate 't is not voidable but ipso facto void for if the Grantee should distrain for the Rent the Infant may have an Action of Trespass against him In all these Cases which have been cited where 't is held that the Deeds of Infants are not void but voidable the meaning is that non est factum cannot be pleaded because they have the form though not the Operations of Deeds and therefore are not void upon that account without shewing some special matter to make them of no efficacy Therefore if an Infant maketh a Letter of Attorny though 't is void in it self yet it shall not be avoided by pleading non est factum but by shewing his Infancy Some have endeavoured to distinguish between a Deed which giveth only authority to do a thing and such which conveys an interest by the delivery of the Deed it self that the first is void and the other voidable But the reason is the same to make them both void only where a Feoffment is made by an Infant 't is voidable because of the solemnity of the Conveyance Now if Simon Leach had made a Feoffment in Fee there had still remained in him such a Right which would have supported this Remainder in Contingency This Surrender is therefore void and all persons may take advantage of it Afterwards a Writ of Error was brought to reverse this Iudgment in the House of Lords but it was affirmed Cases Adj. 150. Hall versus Wybank THE Statute of Limitations is Statute of Limitations whether it extendeth to the Defendant being beyond Sea six years 21 Jac. cap. 16. that if any person be entituled to an Action and shall be an Infant Feme Covert Imprisoned or beyond Sea that then he shall bring the Action at full Age Discovert of saue Memory at large and returned from beyond Sea The Plaintiff brought an Indebitatus Assumpsit to which the Defendant pleaded non assumpsit infra sex Annos The Plaintiff replied that the Defendant was all that time beyond Sea so that he could not prosecute any Writ against him c. And upon a Demurrer Serjeant Tremaine argued that the Plaintiff was not barred by the Statute which was made to prevent Suits by limiting personal Actions to be brought within a certain time and it cannot be extended in favour of the Defendant who was a Debtor and beyond Sea because 't is incertain whether he will return or not and therefore there is no occasion to begin a Suit till his return 'T is true the Plaintiff may file an Original and Outlaw the Defendant and so seise his Estate but no Man is compelled by Law to do an act which is fruitless when 't is done and such this would be for if the Plaintiff should file an Original 't is probable the Defendant may never return and then if the Debt was 1000 l. or upwards he would be at a great Expence to no purpose or if the Party should return he may reverse it by Error 'T is a new way invented for the payment of Debts for if the Debtors go beyond Sea and stay there six years their Debts would by this means be all paid The words of the Statute do not extend to this Case for the Proviso is That if the Plaintiff be beyond Sea when the cause of Action doth accrew Cro. Car. 246. 333. that then he have shall liberty to continue it at his return yet 't is within the equity of Law for him to bring his Action when the Defendant returns who cannot be sued 'till then That Statutes have been expounded according to Equity is not now a new Position 2 Roll. Rep. 318. for Constructions have been made according to the sense and meaning and not according to the Letter of many Statutes
that at the Common Law a Man might exercise what Trade he would therefore this Statute is penned in the Negative to prevent many inconveniences which happened before the making of this Law Some Authorities there are where Informations have been brought upon this Statute Cro. Car. 347. 1 Sand. 312. and the Defendants have pleaded the the Custom of London for a Man Educated in one Trade to exercise another and upon Demurrer such Pleas have been over-ruled but reason in this Case is the best Authority Iourny-men who work for Hire cannot be within the meaning of this Statute but the Defendant by employing such had an influence upon the Trade and so 't is found viz. That he provided Materials and paid the Workmen and therefore he and not the Master workman who is but a Iourny-man is the person who did exercise the Trade not being an Apprentice the management was for his Profit the Workmen had no more but their Wages and it would be very mischievous if the Statute should be otherwise construed A Widow shall not exercise her Husbands Trade Hutt 132. unless she is enabled by the Custom of the place and possibly she might live so long with him as to be very skilful in it but the Act being penned in the Negative must have a large construction and therefore an Vsage against it will not take away its force Paying the Wages is as much as using the Trade himself 't is properly his driving the Trade by the Hands and Labour of his Servants 1 Jac. 1. c. 22. And it seems plain by the Statute of 1 Jac. 1. that this may be done for that Statute Enacts that no person using the Mystery of Tanning Leather by himself or any other person shall exercise the Craft of a Shoe-Maker c. which shews that the Trade may be carried on by Servants and Workmen A Goldsmith never makes his own Plate he only provides Materials for the Workmen but yet he is a Trader within the Statute because he makes profit of the Plate An Inn-keeper who sells Beer Bread c. in his House is not within this Statute because 't is part of his Trade to provide such things for his Guests but if he sells any quantities out of Doors 2 Bulst 187. he is then within the reach of this Law which ought to have a very beneficial construction because 't is made to maintain skilful Men in Trades which is for the publick good of Mankind 2. 'T is plain that he who useth one Trade cannot exercise another therefore a Coach-maker shall not make his own Whéels if he doth 't is exercising the Trade of a Wheel-right and so of the Iron and Leather and the other Materials which make up a Coach In Mr. Noy 133. Hunter versus Moon Attorney Noy 's Reports there is a Case of an Information brought upon this Statute against the Defendant being a Felt-maker for dying of his own Hatts and it was adjudged for him that 't is part of his Trade but this is but a single Authority and many have been against it since that time At the Assises in Cambridge the like Information was tryed against a Comb-maker for exercisng the Trade of a Horner it was insisted on that it was part of his Trade for he fitted the Horn for his use in making of Combs but there was a Verdict for the Plaintiff for it was held to be an exercising of the Trade of an Horner and the Council for the Defendant who were learned Men did acquiesce under that Iudgment He who is a Servant who undergoes no hazard but is to have a certain reward for his labour doth not exercise a Trade but 't is the Master who emploies him who hath all the Profit and who in this Case sells at the same rate as if he paid the Clothworker The Statute saith That none who hath not served as an Apprentice in any Mystery c. shall use the same c. Now he who employs Men in his House useth the Trade c. For suppose a Merchant should hire Iourny-men Shoemakers to work in his House for the Plantations this can be no other thing than the exercising of the Trade of a Shoemaker Private usage is not within the meaning of this Law but if what is done be for profit and gain and not confined to a particular Family 't is an exercising of a Trade within the intention of this Statute If the Defendant had sold these Cloths in England he had been a Draper and having exported them he is a Merchant Wherefore for these Reasons Iudgment was given for the Plaintiff But Iustice Dolbin was of another Opinion he said that no encouragement was ever given to Prosecutions upon this Statute and that it would be for the common good if it was repealed for no greater punishment can be to the Seller than to expose Goods to Sale ill wrought for by such means he will never sell more In this Case there is no inconvenience to the Company of Clothworkers because that Trade is a manual Occupation for hire the Master Workman is the person who useth the Trade and the Defendant hath done nothing but what is the proper work of a Merchant in his own House which cannot be a publick use of the Trade The intent of the making of this Statute was to prevent Idleness and that there might be generally a good Manufacture Now the Defendant hath well answered both these ends for he hath employed Men in the working and not only so but such Men who were bound Apprentices and served seven years in that very Trade such who could work well and to whom he gave good Wages 'T is the interest of a Merchant that his Cloth be well wrought but the Clothworker careth not how 't is done so he hath his Wages and by this care and industry of the Defendant that Trade which was almost lost abroad is now come into Reputation again Bradburn versus Kennerdale Mich. 4 Jac. Rot. 640. ERror to reverse a Iudgment in an inferior Court at Chester in Replevin for the taking of a Cow Replication whether good without a Traverse The Defendant made Cognizance as Bailiff to Sir Peter Warburton setting forth that before the taking c. Sir Peter was seised in Fee of the Mannor of Arkey of which the locus in quo was parcel and for that the Cow was there Damage Feasant he took it c. The Plaintiff in barr to the Avowry confesseth That Sir Peter Warburton was seised in Fee c. but that before that time Sir George Warburton his Father was seised of the said Mannor and likewise of one Mesuage in Fee c. and being so seised made a Lease thereof for three Lives viz. for the Life of G. H. the Father and for the Lives of his two Sons George and John alterius eorum diutius viventis that one of them was dead and that the other entred and was seised as
Proctor 2. Whether a sufficient cause was returned to displace Mr. Leigh As to the first It was held that a Mandamus doth lie because 't is a publick Office and concerns the Administration of Iustice and the Proctors being limited to a certain number viz. 28. if many of them should be displaced it would be a means to hinder Iustice This Court doth judicially take notice of the Ecclesiastical Courts by prohibiting them by taking notice of their Excommutions or of any proceedings when they are against the Law of the Land A Proctor doth the Business in that Court as as Attorney in B. R. and Notice is taken of his place as judicially as of any other Officer Sid. 94 152. and as to this purpose those Officers cannot be distinguished if therefore a Mandamus hath been granted to restore an Attorny why not a Proctor The Plaintiff hath no remedy but by a Mandamus because an Assize will not lie of this Office 't is admitted that an Action on the Case may be brought but then Damages only are to be recovered and not the Office and it would be very inconvenient to leave it to a Iury to give such Damages as the Party may sustain for the loss of his Livelyhood 'T is no Objection to say that there is a proper Visitor in this Case to whom to appeal viz. to the Archbishop for they have not set out any such visitatorial power in the Return or if any that he had power to restore him But if such Power had appeared upon the Return yet a Proctor ought not to appeal to the Archbishop or to the Guardian of the Spiritualties Sede vacante because ' is in effect to appeal to themselves for the Dean of the Arches before whom the Appeal must be brought is an Officer appointed by the Archbishop himself and hath the same Iurisdiction with him Besides the Proctors there are not properly under any Visitatorial Power they have a particular Iurisdiction within themselves and their Courts have been held in several places as at Bow Christchurch c. Then as to the Causes of this removal 't is returned 1. For receiving and prosecuting of a Cause without the advice of an Advocate contrary to a Statute made by the Archbishop Abbot 2. For refusing to pay 10 s. set upon him as a Tax towards the Charges of the House Now neither of these are sufficient Causes to displace him As to the first Cause if that Statute gives them any such Power 't is void because it deprives a Man of his Freehold which cannot be done but by the Law of the Land 'T is not said when this Offence was committed for it may be before a general Pardon and then 't is discharged But if it is an Offence that will not make a Forfeiture without warning and no such thing appears upon the Return 11 Co. 99. a. for if he had notice publickly he might have offered something in excuse of himself as Sickness c. which might have been allowed by the Court. 'T is as unreasonable a Law to put the Clients to unnecessary Charges to advise with an Advocate upon an ordinary Libel as it would be for an Attorny of the King's Bench to advise with Council to draw a Declaration on a Bond. 2. They do not shew by what Authority they may levy a Tax neither do they set forth what Tax was made in the whole so that it might appear that 10 s. was a proportionable part for him to pay neither doth it appear when this Tax was made or that Mr. Leigh was a Proctor when it was made E contra E contra This is not an Offence in matter of Iudgment but 't is a Misdemeanour and punishable 'T is very like the Case of Fellows of Colleges who have proper Visitors and therefore the King's Bench will not grant a Mandamus in such Cases A Proctor is an Officer of a Court different from the Courts of Law and therefore the King's Bench cannot take notice of his Office judicially they have no other way of punishing of a Proctor but by displacing of him and if this should be remedied by a Mandamus then those persons may offend without punishment 'T is not like the Case of an Attorny for he being an Officer of the King's Bench the Court doth judicially take notice of him but not of a Proctor 'T is more like the Case of a Steward of a Court Baron which is of private Iurisdiction and for which a Mandamus hath been denied 'T is like Midleton 's Case who was Treasurer of the New River Water 't is true a Mandamus was granted to restore him to that Office but it was only de bene esse to bring the Matter before the Court though that was a Corporation settled by Act of Parliament 'T is also like the Cases of Abbots Priors and Monks for whom a Mandamus was never granted because they are Ecclesiastical Corporations and have proper Visitors which is now by Law devolved upon the Archbishop So also Lay Corporations have Visitors which are their Founders and their Heirs 'T is an Objection of no force to say that this Appeal must be to the Dean of the Arches which is to appeal to the same person because though 't is true that the Dean is constituted by the Archbishop yet when once he is invested with that Office he is in for his Life and the Archbishop cannot afterwards come into that Court and execute the Office of Dean himself so he is not the same person neither hath he the same Iurisdiction Curia A Proctor is not an Officer properly speaking 't is only an Employment in that Court which acts by different Laws and Rules from the King's Bench they have an original Iurisdiction over this matter and a Mandamus is in the nature of an Appeal which will not be granted where they have such a Iurisdiction but when they exceed it and encroach upon the Common Law then Prohibitions are granted 'T is for this reason that in cases of Divorce which are of a higher nature than this case is no Appeal can be to the King's Bench for it would be an endless business for persons to Appeal ab uno ad aliud examen and therefore credit must be given to the determinations of those Courts who have such Original Iurisdiction Officers are incident to all Courts 1 Roll. Abr. 526. and must partake of the nature of those several and respective Courts in which they attend and the Iudges or those who have the supream Authority in such Courts are the proper persons to censure the Behaviour of their own Officers and if they should be mistaken the King's Bench cannot relieve for in all cases where such Iudges keep within their Bounds no other Court can correct their Errors in Proceedings Now for a Church-Warden of a Parish Clerk an Attorny or the like all these are Temporal Officers and are to be ordered by the Temporal Laws