if the Heirs satisfied the Office of their Title without pleading as where Conusans of Pleas have been once allowed it is sufficient in another Action to shew the former Roll where it was alallowed Note An Indictment for a Nusans in the High-way The Court will not quash this Indictment upon Motion unless certified that the Nusans is removed But they will Reverse it upon a Writ of Error if their be Error in it without any such Certificate Iles Case A Mandamus was prayed to the Churchwardens of the Parish of Kinsmere in Hampton to restore John Iles to the place of Sexton there and it was granted And so the Court said hath béen for a Parish Clark Churchwardens a Scavenger But it was denied to one who pretended to be Master of the Lord Mayors Waterhouse for that they said was not an Office but a Service Anonymus A Fine was levied of Lands in Blandford Forum Resolved That this should not pass Lands in a Hamlet of that Town there being Constables distinct in Blandford Forum from others that were in the Hamlet so that they were as two Vills But if a Fine be levied of Lands in a Parish it shall extend to all the Vills within the Parish The Lord Hawley's Case A Mandamus was granted to restore him to the Recordership of Bath The Corporation returned That they were Incorporated by Letters Patents of Queen Elizabeth which empowered them to chuse probum discretum hominem in legibus Angliae peritum to be their Recorder and to hold a Court twice every Week before the Mayor Alderman and Recorder or any two of them whereof the Mayor to be one That the 1st of August 15 of this King he was made Recorder by the Committee upon the Act of this King for regulating of Corporations and that he continued in the Office Secundum locationem illam until the 25 of December 21 of the King and that from the 1 of August 15 of the King to August 21 he absented himself by the space of five years without any reasonable Cause and that he is nullo modo peritus in lege and that at a Court August the 21 they summoned him to appear some days before and he not coming they amoved him from his Office the 30 day of the said August After this Return filed it was moved First That it was repugnant for they returned That the Lord Hawley continued in his Office until the 25 of December 21 of the King and after that they amoved him in August 21 of the King To which it was answered That in regard upon the whole return it appears that he was amoved though it be said he continued after that is not material but surplusage As where a Jury gives a general Verdict and yet discloses special matter disagreeing to it the Court judges according to the special matter or else they might mean that though he were turned out yet he did continue exercising it de facto And the Court were of Opinion that the contradiction in the Return was not material For Hale said If it shall be taken that he is yet in then there is no need of a Mandamus Again it was said That the matter of absence was not sufficiently returned for it appears by the Charter that the presence of the Recorder is not necessary to the holding of the Court for it is to be held before the Mayor Aldermen and Recorder or any two of them whereof the Mayor to be one then they have not returned that they held a Court in all that time neither have they returned that any mischief or inconvenience happned to them by his absence A Park-keeper shall not forfeit his Office for Non-attendance unless a Deer be killed or the like in his absence Also it is returned from the 1 of Aug. 15. Car. to the 1 of Aug. 21. he absented himself for five years and he might be out of Town five years in six years time and yet be there every Court day And for the other cause of removal that he was not peritus in lege It was said That the Corporation being Laymen could not return a thing whereof they were not Judges That the Return was too general nullo modus peritus but ought to have set forth some special Fact whereby it might appear to the Court. Also They could not remove him for a Cause which they could not examin he was put in by Commissioners authorised by Act of Parliament which it was said did capacitate implicitely him at least their Act supplied the Election of the Town which if it had been would have dispensed with his disability And the Case of Bernardiston Recorder of Colchester was much relied upon who in 1655 brought a Mandamus to be restored to his Office And it was returned That he was not learned in the Law and that one being indicted before him upon the Statute of 1 Jac. of having two Wives and convicted he denied him Clergy and also they returned That he absented himself for nine Months and notwithstanding by the Iudgment of the Court he was restored It was said by Sir William Jones on the other side That the absence as it was returned was sufficient Cause to remove him for it is returned That without any reasonable Cause seipsum elongavit by the space of five years which must be intended five years continued and not made up by Fractions and so held the Court in that Case and executionem officij sui totaliter neglexit Now tho' his Presence be not of absolute necessity to the holding of the Court yet it is highly convenient that he should be there seeing the Charter gives such large Iurisdictions to determine all Causes excepting such as concern Freehold according to Law The Court here also must judicially take notice That the Office of Recorder is concerned in other matters besides the Administration of Justice in the Court for he is as it were the Common Counsel of the Corporation And whereas it hath béen objected That it is not returned that they had held a Court during his absence or that any prejudice had ensued Also That it must be intended that there were Courts when they have returned the Charter which empower them to hold one twice every week and 't is returned That he absented himself in Regiminis Civitatis detrimentum c. and ' its apparent they must suffer prejudice by so long absence If a Park-keeper should desert his Office for five years it would make a Forfeiture without Special Damage The other matter returned also That he is nullo modo peritus in lege is good Cause for the Charter appoints them to Elect such an one so one that is not so qualified is not capable and the Act of this King authorises Commissioners but to do what the Corporation might have done It is apparent That the Office requires skill in the Law he hath no power to make a Deputy by the Statute of 21 Jac. Causes in many Cases are
have admitted Wager of Law and therefore lies not against the Executor It was difficultly brought in that Debt should lye against the Executor upon a Surmize of a Devastavit by himself But that Point is now setled but no Reason to extend it further And he cited a Case where Debt was brought against A. Executor of B. Executor of C. who pleaded that he had not of the Goods of C. in his hands To which the Plaintiff Replied That B. had Wasted the Goods of C. to the value of the Debt demanded Vpon which Issue was joyned and found for the Plaintiff and he had Judgment to recover de bonis B. in the hands of A. But that Judgment was Reversed Anonymus IF A. Engages that B. shall pay for certain Goods that B. buys of C. this is good to charge him upon a Collateral Promise but not upon an Indebitat ' Assumpsit for it doth not create a Debt Anonymus IN an Information for a Riot it was doubted by the Court whether it were Local being a Criminal Cause And it was observed that divers Statutes in Queen Elizabeth and King James's time provided that Prosecutions upon Penal Laws should be in their proper Counties Which was an Argument that at the Common Law they might have been elsewhere Taylor 's Case AN Information Exhibited against him in the Crown Office for uttering of divers Blasphemous Expressions horrible to hear viz. That Jesus Christ was a Bastard a Whoremaster Religion was a Cheat and that he neither feared God the Devil or Man Being upon this Trial he acknowledged the speaking of the Words except the word Bastard and for the rest he pretended to mean them in another Sense than they ordinarily hear viz. Whoremaster i. e. That Christ was Master of the Whore of Babylon and such kind of Evasions for the rest But all the Words being proved by several Witnesses he was found Guilty And Hale said That such kind of wicked Blasphemous words were not only an Offence to God and Religion but a Crime against the Laws State and Government and therefore punishable able in this Court. For to say Religion is a Cheat is to dissolve all those Obligations whereby Civil Societies are preserved and that Christianity is parcel of the Laws of England and therefore to reproach the Christian Religion is to speak in Subversion of the Law Wherefore they gave Judgment upon him viz. To stand in the Pillory in Three several places and to pay One thousand Marks Fine and to find Sureties for his Good Behaviour during Life Walker versus Wakeman THe Case was An Estate which consisted of Land a Rectory c. was conveyed to the use of one for Life c. with a Power to Lett the Premisses or any part of them so as 50 l Rent was reserved for every Acre of Land The Tenant for Life Demised the Rectory reserving a Rent which Rectory consisted of Tythes only and whether this was within the Power was the Question Serjeant Pemberton Argued That this Lease is not warranted by the Power for a Construction is to be made upon the whole Clause and the latter Words that appoint the Reservation of the Rent shall explain the former and restrain the general Word Premisses to Land only for if it shall be extended further the Settlement which was in Consideration of a Marriage Portion is of no effect for the Rectory As in case it should de Demised reserving no Rent which it might be if not restrained to the latter words and they applied only to the Land But it was Resolved by the Court that the Lease of the Rectory was good for the last Clause being Affirmative shall not restrain the Generality of the former And this Resolution was chiefly grounded upon Cumberford's Case in the 2 Rolls 263. where a Conveyance was made to Vses of divers Mannors and Lands with a Power to the Cestuy que use for Life to make Leases of the Premisses or any part of them so that such Rent or more were reserved upon every Lease which was reserved before within the space of Two years and a Lease was made of part of the Lands which had not been Demised within Two years before And Resolved it was a good Lease and that thereupon any Rent might be reserved because the Power was General To Lease all and the restrictive Clause should only be applied to such Lands as had been demised within Two years before Termino Sanctae Trinitatis Anno 28 Car. II. In Banco Regis MEmorandum The last Term Sir Richard Rainsford was made Chief Justice Hale Chief Justice quitting it for infirmity of Body and Sir Thomas Jones was made one of the Justices of the Court of Kings Bench. Anonymus IN an Action upon the Case brought against the Defendant for that he did Ride an Horse into a place called Lincolns in Fields a place much frequented by the Kings Subjects and unapt for such purposes for the breaking and taming of him and that the Horse was so unruly that he broke from the Defendant and ran over the Plaintiff and grievously hurt him to his damage c. Vpon Not guilty pleaded and a Verdict for the Plaintiff It was moved by Sympson in Arrest of Judgment that here is no cause of Action for it appears by the Declaration that the mischief which happened was against the Defendants Will and so Damnum absque injuria and then not shewn what right the Kings Subjects had to walk there and if a man diggs a Pit in a Common into which one that has no right to come there falls in no Action lies in such Case Curia contra It was the Defendants fault to bring a Wild Horse into such a place where mischief might probably be done by reason of the Concourse of People Lately in this Court an Action was brought against a Butcher who had made an Ox run from his Stall and gored the Plaintiff and this was alledged in the Declaration to be in default of penning of him Wild said if a Man hath an unruly Horse in his Stable and leaves open the Stable Door whereby the Horse goes forth and does mischief an Action lies against the Master Twisden If one hath kept a tame Fox which getts loose and grows wild he that kept him before shall not answer for the damage the Fox doth after he hath lost him and he hath resumed his wild nature Vid. Hobarts Reports 134. The Case of Weaver and Ward Anonymus IN Trespass in an inferiour Court if the Defendant plead son frank Tenement to oust the Court of Jurisdiction It was said by Wild that they may enforce the Defendant to swear his Plea as in case of Foreign Plea negat Twisden and as in this Court where a Local justification in Trespass c. is pleaded the Defendant must swear it But the Court held no Indictment will lie for Perjury in such Oath no more than upon a Wager of Law Anonymus IN Trover the Hab. corpora
a Jury But the Court inclined to grant the Writ for it did not appear that it was parcel of his Tenure but rather imposed upon him by the Custom of the Mannor and if Attorneys shall be discharged of the Service of the Common-wealth à fortiori of any private Service Vid. postea The King versus Webb IN an Action brought against him for imbesiling of the Kings Goods which was laid in the Declaration to be in London it was moved for the King that the County might be changed And the Court held the King might choose his County and might wave that which he had seemed to have elected before as he may wave his Demurrer and joyn Issue contra Perries Case IN an Information of Forgery against him being an Attorney of the Common Pleas it was alledged That he had framed a certain Writing in the Form of a Release at Sherborn and that he published and gave it in Evidence at Dorchester and the Venue came out of Dorchester whereas it was said it ought to have come out of both places To which it was answered That the publishing and not the framing was the Crime But notwithstanding it was held to be a Mis-trial and being in an Information it was not aided by any Statute Postea Anonymus IN Trover and Conversion amongst other things the Plaintiff declared de sex bovibus instead of bobus Vpon Not guilty pleaded and found for the Plaintiff and entire Damages assessed It was moved in Arrest of Judgment That the Jury ought to have given no Damages for bovibus being a word insensible and entire Damages being given it was naught for all To which it was answered That if the word be insensible notwithstanding the Anglice the Jury shall not be intended to have regarded it in the giving of Damages and if it hath a signification then it is well enough And it was said bovibus was an old Latin word and is found in Plautus and 't is bobus only by contraction It was also said That the Plaintiff brought this Action as Executor and the Trover was laid in the Testators time which was not sufficient tho' the Conversion was alledged in his own But the Court held neither of these Exceptions sufficient to Arrest Judgment Rumsey versus Rawson IN Replevin The Defendant Avowed for Damage Feasant The Plaintiff replies That the Parson of such a Parish and all his Predecessors have had time out of mind Common in the place where c. belonging to his Glebe and that the Beasts of the Plaintiff were Levant and Couchant upon the Glebe and he put them into the Common by the Licence of the Parson The Defendant Traverses that they were Levant and Couchant and found for the Plaintiff And it was moved in Arrest of Judgment That the Plaintiff had not alledged matter sufficient to justifie his Beasts going in the Common for no other Beasts ought to be put in the Common but those of the Tenant of the Land to which it is appendant or those which he takes to Compester his Land Fitz. N. Br. 180. b. and that tho' the Common be claimed for a certain number And the Opinion of the Court was That the Defendant might have demurred in this case But after a Verdict the Court shall intend they were Beasts which the Parson procured to Compester his Land and the right of the case is tryed so aided by the Statute of Oxford But they gave further time to shew cause Postea Anonymus AN Action was brought for these words Thou hast received Stoln Goods and knew they were Stoln Alice S. Stole them and thou wert partner with her For the first words the Court held them not Actionable for they might admit for a justifiable construction as if the Goods were waived But the last were holden sufficient for Partner with her must intend Partner in the Felony Skinner versus Gunter al. THe case was moved again by Pomberton and alledged in maintenance of the Action that it was but in the nature of an Action upon the Case for at the Common Law no Writ of conspiracy lay but for indicting one of a capital Crime and that after an acquittal by Verdict But since the Statute of 33 Edw. 1. de Conspiratoribus Actions have been brought for conspiring to Indict one of Trespass or to Sue one maliciously without cause of Action as this case is and so is Br. tit Consp pl. 2. and by F.N.B. 116. Such an Action in the nature of Conspiracy lies against one And the Title of the Action in this Case is In placito transgr super casum and for these Reasons all the Court were of Opinion for the Plaintiff Vid. Ante. Braithwaites Case BRaithwaite brought a Mandamus to the Mayor Bailiffs and Burgesses of the Town of Northampton to be restored to his place of Alderman there They make a Return and in their Return set forth the Letters Patents of 16 Car. by which they were Incorporated and power is given them of holding a Common Council consisting of a Mayor 2 Bailiffs and 48 Burgesses and that the Mayor Bailiffs and such Burgesses as had been Mayors commonly called Aldermen should have power upon just Cause to amove any Common Council Man from his place there and then they set forth how Braithwaite was a Member of the Common Council and had committed divers Offences which they expressed in particular Whereupon the 18 of Dec. 17 Car. the Common Council assembled together summoniri procuraverunt the said Braithwaite and he not coming to answer was the same day amoved ab officio suo loco suo in Communi Concilio per Majorem Burgenses authoritate secundum Chartam praedictam It was also set forth That they had a command from the Kin and Council to amove him Vpon this Return there were four Exceptions taken First That it did not appear that he was summoned for it ought to have been qui quidem Braithwaite postea summonitus fuir and not summoniri procuraverunt Sed non allocatur for it was held clearly to be all one Otherwise if it had been quod procuraverunt J.S. eum summonire A Second Exception was That their proceedings were too quick for they amoved him the same day wherein he was summoned Sed non allocatur for it appearing he lived in the same Town and refused to come to make his defence they might immediately amove him A Third Exception was That they had exceeded their power which was only to amove him from his place in the Common Council and they had amoved him from his Office Sed non allocatur for 't is that wherein his Office consists and indeed it was so averred in the Return But the main Exception was For that they had not as was alledged pursued their Authority for the Mayor and such Burgesses who had been Mayors have power given them to amove And here the Amotion is said to be per Majorem Burgenses so that it might be by
c. and in Replevin the Avowant is Actor and in Suffering of a Recovery the Tenant is the main Agent being to his use in no other be declared And it was an Error assigned in the Lord Newport and Mildmay's Case as appeareth by the Record yet it seems it was taken to be so plain as not fit to be insisted on Wherefore there is nothing of it in the Report of the Case 1 Cro. 224. yet there was all endeavour imaginable used to Reverse that Recovery and divers other Presidents there are of the same manner of Entry And if it can appear to the Court that there was a Guardian admitted the Form of the Entry shall not be so severely Examined as in the 4 Rep. 53. where there was no Entry of any Admission of the Guardian by the Court at all yet it appearing quod venit per Guardianum the Court would not Reverse the Judgment for Error And for the Book of the 2 Cro. 641. there were other Reasons which Reversed the Judgment and the Admission ad prosequendum was not mentioned until the Court upon the other Matters had Resolved the Reversal And the Books there cited do not at all prove it to be Error And ad sequend ' ur Guardianum is not at all amiss for Ut many times notes an Identity Seisitus ut de feodo makes Conusans ut Ballivus c. And for the Entry of the Appearance it may be taken that the Guardian came in proper Person and so it ought to be But if propria persona refers to the Infant he must have Reversed the Recovery during his Nonage And so Twisden saith it hath been resolved in this Court lately Vid. Roll's 1st Part 171 and 2d Part. 573. Anonymus SCroggs the King's Serjeant moved to have at Trial at Bar in an Indictment of Perjury and for some further Time urging that it was the King's Case The Chief Justice said The King was no otherwise concerned in it than in maintenance of the Common Justice of the Realm It was usually the Subjects Interest and His Prosecution and therefore must not deviate from the Course in Civil Causes and not to be resembled with Causes wherein the King is concerned in point of Interest Anonymus A Prohibition was prayed to stay a Suit for Tythes of Wood. The Plaintiff suggested That he had a House in the Parish and that the Wood was cut for Fuel burnt in his House But the Court said that this would not serve unless it were expressed that the House was for maintenance of Husbandry by reason of which the Parson had Uberiores Decimas Barrett versus Milward al. A Scire facias was awarded against the Defendants upon a Recognizance which they entred into as Bail for a Plaintiff in a Writ of Error that he should prosecute it with effect or pay the Money if the Judgment were affirmed They plead That he did prosecute it with effect and that the Judgment was not yet affirmed The Plaintiff Replied Protestando that they did not Prosecute with effect Pro placito that the Judgment was affirmed by the Justices of the Common Bench and Barons of the Coif Et hoc paratus est verificare per Recordum To which the Defendants Demurred generally Because it was not alledged That there were Six Justices and Barons present when the Judgment was affirmed For 27 Eliz. c. 8. which gives them Authority requires that there should be Six at the least Sed non allocatur For the Defendant should then have pleaded Nul tiel Record ' for if there were not Six their Proceedings were coram non Judice Nota If a Certiorari be not Returned so that an Alias be awarded the Return must be as upon the first Writ and the other must be Returned quod ante adventum istius brevis the Matter was certified Gybbons versus North. IN an Assumpsit the Plaintiff Declared That whereas at the Defendants Request he was bound with him in a Bond of 200 l he in Consideratione inde promised to save him harmless and obliged himself his Heirs and Executors in 200 l to the performance of it and the Money not being paid the Defendant did not save him harmless But per debitum legis processum he was forced to pay the Money The Defendant Demurred because he did not alledge That he did not pay him 200 l For obliging of himself in the penalty of 200 l to save him harmless He hath election either to save him harmless or pay 200 l But the Court gave Judgment for the Plaintiff for there is no Election in this case being no more than an ordinary Promise to Save harmless And this Action is brought upon the Plaintiffs Dampnification which is a Breach and he doth not demand the 200 l Also a Verbal Contract cannot create a Penalty to oblige the Heir Jordan versus Forett ERror to Reverse a Judgment given against an Executor in Debt in the Common Pleas where the Executor pleaded divers Judgments formerly obtained against him and the last he pleads thus That one Eliz. H. in eadem Curia implacitasset c. and Recovered in Trinity Term but expresses not in what Year and there upon a general Demurrer Iudgment was given for the Plaintiff and it was assigned for Error That this Incertainty in respect of Time was good at least upon a general Demurrer But the Court affirmed the Judgment For if such Pleading should be allowed it would be very inconvenient to the Plaintiff and very difficult to find out the Record and then how should he plead that it was kept on foot by Fraud or such like But if it had been ascertained when the Plea commenced tho' no time alledged when the Judgment was obtained yet that would have been good for the Continuances would have directed to the finding of it Twisden said That the Course in this Court was a in Scire facias upon a Judgment to say quod cum recuperasset without alledging any Time But in the Common Pleas they set forth the Term. Putt versus Vincent IN Debt for 3900 l the Plaintiff declared upon Articles of Agreement wherein Putt Covenanted to Convey certain Lands to one Nosworthy and there are also certain Covenants from Nosworthy to the Plaintiff and from the Defendant Vincent who after Imparlance pleads that Nosworthy sealed the Deed and is still alive To which the Plaintiff Demurred And it was alledged by Jones That this being after Imparlance could not be pleaded it being only in Abatement and that he Commences his Plea Actio non as if it were a Plea in Bar. And the Court inclined that it was insufficient for both Causes But then it was said It appears by the Deed to which Nosworthy was a party that the Plaintiff could not sue the Defendant alone and so of his own shewing he could not have Iudgment But it was answered That it did not appear that Nosworthy ever Sealed the Deed. Et Adjournatur Postra Gifford versus
King by general words of all Land c. Conditions c. 3 Co. 2. a. b. much less could it pass from the King if it could pass at all by general words but I rest upon this First That it is a Power or kind of Trust to revoke but no Condition Secondly At least not such a Condition as is given to the King Thirdly If it were it ought to have béen executed by the same means as it should have béen by S. M. In Englefields Case there was no pretence to have more than to execute the Condition it ought here to have béen executed in the Life of S. M. and so it appears to be done in Englefields Case and Harding and Warners Case for I caused the Cases to be searched This is like the Case of the Statutes of 15 R. 2. cap. 5. 1 R. 3. cap. 1. 19 H. 7. cap. 15. these Statutes give the same advantage to Lords c. where persons have Uses in Lands respectively as if they had the very Lands but the Lord's c. cannot thereby claim any greater Interest than the cestuy que Uses had respectively in the Uses Now in this Case The Body of the Act and the Proviso fetch back and save the Trusts for all but S.M. As to the Execution for the Kings Debts it differs for the Process for they ever did and do run de terris de quibus illi aut aliquis ad eorum usum c. 'T is true in Sir Charles Hattons Case it was resolved That the Kings Debr should be executed upon Land wherein he had a power of Revocation Vid. Chirtons Case 11 Co. 92. And so Iudgment was affirmed per toram Curiam Termino Sanctae Trinitatis Anno 22 Car. II. In Banco Regis Anonymus IN Debt upon a Bond. After Verdict for the Plaintiff the Judgment was entred quod recuperet the Sum pro misis custag ' instead of pro debito praed ' But this was ordered to be amended as the default of the Clerk tho' in another Term The Court having power over their own Entries and Judgments Anonymus IN an Account it was held by the Court that if a man delivers Money to his Bayliff or Factor to lay out for him in Commodities he cannot bring an Assumpsit but only his Action of Account For the Chief Justice said that he knew such an Action once brought and the Jury that were to try the Cause informed him That if they should Examine all the Accounts which were between the Plaintiff and Defendant it would take up three or four days time So that it hath been always holden that in such case he should be driven to his proper Remedy which is an Action of Account and it may be the Factor hath laid out more Mony that he received Eaton versus Barker IN an Action upon the Statute of 17 Car. nunc for residing in a place where he had formerly kept a Conventicle and demands the 40 l penalty After Verdict for the Plaintiff it was moved in Arrest of Judgment that there was no Costs or Damages given For it was said that where a Statute gave a certain Penalty if this be not paid upon demand he that sues for it shall recover his Costs and Damages as North and Wingate's Case in the 3 Cro. 559. is But the Court held that they ought not to be given in Actions Popular whether the Forfeiture be certain or not but where a certain Penalty is given to the party grieved there he shall recover his Costs and Damages 10 Co. 116. Vide postea Polexphen versus Polexphen IN a Prohibition the Case was that Henry Polexphen died Intestate Andrew his Brother gets Letters of Administration in the Inferiour Diocess One who pretended to be the Wife of H. surmizing Bona notabilia procured Administration from the Prerogative Court Andrew appeals to the Delegates and dies Henry his Son and Heir comes in and gets the Administration committed in the Prerogative Court Repealed and hath Letters granted to himself Vpon this the Wife prayed a Prohibition supposing that the Delegates could not proceed after the death of Andrew but that their Commission was determined For their Authority is by that to proceed in a Case between such parties one of which is dead To which it was Answered That the Commission is to hear and determine the Cause And both in the Civil and Ecclesiastical Law the Suit shall continue after the death of either party for those which shall be concerned as appears by the Bishop of Carlisle's Case in 2 Cro. 483. and in the 1st Leonard 117 and 178. it is said That if one party dies ante litis conrestationem then it shall abate but if after it is otherwise And there are a number of Presidents of this nature both in the Arches and Admiralty Courts c. And in this very Case Henry Polexphen having obtained Administration de bonis non of his Vncle Andrew in the Country the now Plaintiff got it set aside by the Delegates because granted while an Appeal was depending and that upon full debate before them who would yet now suggest that the Appeal was determined by the death of Andrew The Court were of Opinion that no Prohibition was to be granted and that the Delegates Authority to proceed in that case continued notwithstanding the death of Andrew For the Commission is to proceed in causis Administration c. una cum suis incidentibus vel annexis qualitercunque c. Summariè juxta Juris exigentiam So that the Ecclesiastical Law is appointed to be their Rule by the course of which a Suit doth not abate by the death of the parties And Hale said The Appeal is to the King in Chancery and it is by reason of his Original Jurisdiction and thereupon he grants a Commission to hear it Now if he could hear it in Person none could object but that he might determine the Cause after the death of the parties and by the same Reason they may to whom he hath delegated his Authority But the Attorney General coming in and desiring to be heard in it for the Plaintiff the Court gave further time Eaton versus Barker THe Case was now moved again upon the Statute for coming to a place where he had formerly Preached in a Conventicle And Exception was taken to the Declaration For that it was not averred that the Defendant was in Holy Orders For the words of the Statute are That if any one that hath been Parson Vicar Lecturer c. or within Holy Orders and have taken upon them to Preach c. But to this it was Answered that there is another Clause in the Act That all such persons as shall take upon them to Preach c. which is general and extends to all men whether in Orders or no which have been Preachers And of that Opinion were the Court. It was also Objected That there was no Averment That the Defendant was not there upon Summons Sub
Tenant in Tail and levying of a Fine there is an Instantaneous Fee in him out of which the new Estate Tail is supposed to be created and that cannot hold bring derived out of a Fee subject to the Forfeiture by Relation but this Point was not touched by the Judges for that they were fully agreed upon the other Point Beasly's Case HE was taken in Execution taken a Recognizance of Bail and he made it appear to the Court that he never acknowledged the Recognizance but was personated by another and thereupon it was moved that the Bail might be vacated and he discharged as was done in Cottons Case 2 Cro. 256. But the Court said since 21 Jac. cap. 26. by which this Offence is made Felony without Clergy it is not convenient to vacate it until the Offender is convicted and so it was done 22 Car. 2. in Spicers Case Wherefore it was ordered that Beasly should bring the Money into Court an be let at large to prosecute the Offender Twisden said it must be tried in Middlesex tho' the Bayl was taken at a Judges Chamber in London because filed here and the Entry is venit coram Domingo Rege c. So it differs from a Recognizance acknowledged before my Lord Hobart upon 23 H. 8. at his Chamber and Recorded in Middlesex there Scire facias may be either in London or Middlesex Hob. rep If a false Bayl be acknowledged it is not Felony unless it be Filed and so held in Timberly's Case The King versus Humphrey's al. AN Indictment upon the Statute of Maintenance and one only found Guilty and it was moved in Arrest of Judgment that seeing but one was found Guilty it did not maintain the Indictment 2 Rolls 81. several were indicted for using of a Trade and said uterque eor ' usus fuit and held not good Sed non allocatur for that in that case in Rolls the using of the Trade by one cannot be an using by the other But this is an Offence that two may joyn in or it may be several as in a Trespass But then it was alledged that the Maintenance was in quodam placito in Cur ' coram Domino Rege pendent ' and not said where the Kings Bench Sate and this was held fatal Termino Sancti Hillarij Anno 28 29 Car. II. In Banco Regis Jay's Case A Mandamus to restore to his place of a Common Council Man in the Corporation of Eye in Suffolk The Return was that he was amoved for speaking of approbious words of one of the Aldermen viz. That he was a Knave and deserved to be posted for a Knave all over England And it was moved that the Return was insufficient for words are not good cause to remove a Man from his place in the Corporation To which it was said that this not a difranchising of him but only removing him from the Common Council as a person not fit to sit there To which Twisden said that his place there could no more be forfeited than his Freedom for he was chosen thereunto by the Custom of the place And Magna Charta is that a Man shall not be disseised de liberis consuetudinibus But he held that words might be a cause to turn out a Freeman as if they were that the Mayor or the like did burn the Charters of the Town or other words that related to the Duty of his place But in the Case at Bar the words do not appear to have any reference to the Corporation wherefore it was ordered that he should be restored The Court said that my Lord Hale held That Returns of this nature should be sworn tho' of late days it has not been used and that it was so done in Medlecot's Case in Cro. Abram versus Cunningham UPon a Special Verdict the Case appeared to be to this effect A. possessed of a Term makes B. Executor who makes three Executors and dies two of them dies and the Will of B. the Executor not being discovered Administration is granted cum Testamento annexo to D. who grants over the Term. The surviving Execcutor never intermeddles but so soon as he had Notice of the Will Refused before the Ordinary and the Point was Whether the grant of the Term in the mean time was good Saunders to maintain it Argued That to the making of an Executor besides the Will there was requisite that the Executor should assent and if the Executor refuses 't is as much as if there never had been any There is no Book which proves the Acts of an Administrator void where there is a Will and the Executor renounces Greysbrook and Foxe's Case in Plowden's Com. is that after Administration granted the Executor proved the Will And so in 7 E. 4. 14. in Dormer and Clerke's Case it was held that where there was an Executor who after refused and Administration committed the Administrator should have all the Rent belonging to the Term in Reversion which accrued after the death of the Testator If an Executor be a Debtor and refuses the Administrator may Sue him Which was denied by Twisden because a Personal Action once suspended is ever so Dyer 372. If one makes an Executor who dies and never proves the Will Administration shall be granted as upon a dying Intestate suppose an Executor de son tort had Judgment against him Shall not there be Execution upon a Term as Assets in his hands Twisden It hath been Doubted whether there could be an Executor de son tort of a Term or whether he were not a Disseisor And by the same Reason it may be granted in the present Case for at least the Administrator here is an Executor de son tort before the Refusal Levins contra Anciently Bona Intestati capi solebant in manus Regis as appears in Hensloe's Case in the 9 Co. And since the Power of the Ordinary hath been introduced it was only to grant Administration upon a dying Intestate 4 H. 7. Pl. 10. If the Ordinary cites the Executor to prove the Will and he Renounces 't is said he may grant Administration which implies that it cannot be before So 21 H. 8. cap. 5. is to grant Administration c. upon a dying Intestate or refusal of the Executor the Interest of the Executor commences before the Probat In 36 H. 6. 8. an Executor commanded one to take the Goods and after the Executor refused before the Ordinary who committed Administration and the Administrator Sued the person that took the Goods who Iustified by the Executor's Command and it was held good And a Relation shall never make an Act good which was void for defect of Power And the Court seemed strongly of that Opinion But Serjeant Pemberton desiring to Argue it the Court permitted him to speak to it the next Term. Et sic Adjornatur And afterwards it was Argued again and Judgment was given for the Defendant per totam Curiam Dunwell versus Bullocke IN an Action of
given pro Quer. Termino Paschae Anno 34 Car. II. In Banco Regis Clayton versus Gillam IN Trespass for breaking and entering of his Close and Feeding c. and laying thereon certain pieces of Timber c. Et continuando Transgressionem praed ' After Verdict for the Plaintiff it was moved in Arrest of Judgment that one of the Trespasses viz. The laying of Timber could not be with a Continuando But it was resolved by the Court that continuando transgressionem praed ' shall be referred only to the Trespasses which may properly be said with a continuando But if the continuando had been expresly laid for that Trespass all would have been naught as it was resolved in a Case in this Court between Letchford and Elliot 16 Car. 2. The Earl of Shaftsbury versus Cradock IN an Action of Scandalum Magnatum for saying That the Earl was a Traytor c. The Action being laid in London where the words were supposed to be spoken It was moved in behalf of the Defendant that the Venue might be changed into some other Country and Affidavits were read that the Plaintiff had a great interest in the City and an intimacy with the present Sheriffs so that the Defendant could not expect an indifferent Tryal there and thereupon the Court did think fit to take the Cause out of London and gave the Earl the Election of any other County but he refused to Trie it elsewhere and would rather let the Action fall Curtis versus Inman IN Debt for the Penalty forfeited by the Statute of 5 Eliz. for using the Trade of a Grocer having not been Bound an Apprentice It was moved that the Action lies not in this Court because 21 Jac. cap. 4. Enacts That Actions popular shall be brought before Justices of Assize of the Peace c. But a Case was cited which was adjudged in this Court Hill 20 21 Car. 2. between Barns and Hughes which see before that such Action would lie But the Court notwithstanding in this Case said they would hear Arguments The Earl of Shaftsbury versus Graham al. IN an Action upon the Case in the nature of a Conspiracy the Declaration was That the Defendants did conspire to indict the Plaintiff of High Treason and for that purpose did Sollicit one Wilkinson and endeavoured to Suborn him to give false Testimony against the said Earl and an Indictment was offered at the Sessions at the Old Baily in London by the Defendant in pursuance of the said Conspiracy which Indictment the Grand Jury there found Ignoramus c. It was moved in behalf of the Defendants that whereas the Conspiracy was in the Declaration alledged to be in London that the Court would change the Venue and an Affidavit of the Defendants was produced That the Conspiracy alledged in the Declaration if there were any such was in Surry and not in London Note Wilkinson at the time of the supposed Conspiracy was a Prisoner in the Kings Bench and Affidavits were produced likewise to shew that the Plaintiff had such Interest with the present Sheriffs of London that an indifferent Jury was not like to be returned and that several Persons named to be material Witnesses for the Defendant durst not come to the Tryal if it were in London for fear of their Lives in regard they had been so affronted and abused when they were produced to prove the before mentied Indictment at the Old Baily and several other matters were alledged But it was insisted upon by the Counsel for the Earl That First The Venue uses not to be changed in Case of a Peer who is one of the Comites Regis and shall not be forced to Travel into another County to trie his Case as a Common Person Secondly That the present Case was local viz The preferring the Indictment at the Old Baily and where the Cause of Action ariseth in two Counties the Plaintiff hath his Election to bring it in either 7 Co. Bulwers Case But the Court declared that they were satisfied that no indifferent Tryal could be had in London they remembered they were affronted themselves when they were at the Old Baily upon the before mentioned Indictment And they resolved that they had a power to alter the Venue in the case of a Peer as it had been done about six years since in a Scandalum Magnatum brought by the Earl of Salisbury in this Court. And also they said that the Cause of Action here was Transitory viz. The conspiring and that the preferring of the Indictment was but in aggravation of Damages and the Action would lie altho' none had been offered or if preferred by other Persons than the Conspirators 'T is true when the matter ariseth in several plates the Plaintiff has Election but if there be like to be no indifferent Tryal in the place where it is laid 't is usual with this Court to change the Venue But the Court said they would not confine the Plaintiff to Surry if he could shew them cause that that was not an indifferent County Vid. 42 Ed. 3. 14. Termino Sancti Michaelis Anno 34 Car. II. In Banco Regis Denison versus Ralphson IN an Action upon the Case the Plaintiff declared That the Defendant in consideration of a Sum of Money paid by the Plaintiff did promise to deliver to him ten Pots of good and Merchandizable Pot Ashes and that not regarding his Promise and to defraud him he delivered him ten Pots of Ashes not Merchandizable but mixed with Dirt c. And declared also that pro quadam pecuniae summa c. the Defendant vendidit to the Plaintiff ten other Pots of Ashes Warrantizando c. that they were good and Merchandizable and that he delivered them bad and not Merchandizable knowing them to be naught and to this Declaration the Defendant Demurred And it was argued by Sanders That here were Causes of Action of several Natures put into one Declaration and they required several Pleas viz. Non Assumpsit and Not guilty and therefore ought not to be joyned Thompson for the Plaintiff cited a Case between Matthews and Hoskin An Action against a Common Carrier and declared upon the Custom of the Realm and that he had not delivered the Goods and declared also in a Trover and Conversion upon the same matter and after Verdict upon motion in Arrest of Judgment the Action was adjudged well brought 16 and 17 Car. 2. Hill in this Court. So an Action against one for twenty shillings upon the Hire of an Horse and declared further that he abused him and held good Curia Those Cases were after Verdict Causes upon Contract which are in the Right and Causes upon a Tort cannot be joyned for they do not only require several Pleas but there is several Process the one Summons Attachment c. the other Attachment c. These upon the Contract lie for and against Executors the other not but these seem to be both upon the Contract viz. That
Wingate and Stanton the Bail of William Stanton 38 Wise 's Case 69 Wood v. Coat 195 Woodward v. Aston 296 Wortley the Lady v. Holt 31 Wright v. Johnson 64 Z ZOuch v. Clay 185 ADVERTISEMENT Note That the Author of these Reports has referr'd to Croke's Elizabeth as the first Part and Croke's Charles as the third Part of those Reports except in the first thirty Sheets of the First Volume in which thirty Sheets he referr'd to Croke's Charles of the first Edition as the first Part and Croke's Elizabeth as the third Part of those Reports TERMINO Sancti Michaelis Anno 20 Car. II. in Banco Regis Sparks c. versus Martyn JONES moved for a Prohibition to the Court of the Admiralty for that they Libelled against one for Rescuing of a Ship and taking away the Sails of it from one that was executing the Process of the Court against the said Ship and for that in the presence of the Iudge and face of the Court he Assaulted and Beat one and spake many opprobious Words against him Now seeing that these Matters were determinable at Law the Ship being infra corpus Comitatus and they could not adjudge Damages to the party or Fine or Imprison He prayed a Prohibition But the Court denied it absentibus Windham Moreton 1 Cro. 216. For they may punish one that resists the Process of their Court and may Fine and Imprison for a Contempt to their Court acteâ— in the face of it tho' they are no Court of Record but if they should proceed to give the party Damages they would grant a Prohibition quoad that And of that Opinion was Wyndham the Case being afterwards put to him by the Chief Justice But the parties afterwards put into their Suggestion That the original Cause upon which the Process was grounded was a Matter whereof the Court of Admiralty had no cognisance Wherefore a Prohibition was granted For then the Rescous could be no Contempt Sir John How versus Woolley an Attorney of the Court. IT was Moved That Woolley should put in special Bail being an Attorney at large and having dicontinued his Practice But the Court said Attorneys at Large have the same priviledge with the Clerks of the Court and are to appear de die in diem And they were not satisfied that he had discontinued his Practice Suffil's Case IT was Moved to quash the Return of a Rescous against Suffil and divers others who rescued a person taken upon Mesne Process because the Rescuers being particularly named 'tis said rescusserunt and not added quilibet corum rescussit And for that Case was cited in the 2 Cro. where the Sheriff returns an Exigent against divers quod non comperuerunt upon the Quinto exacti and doth not add nec aliquis corum comperuit and for that cause it was Reversed in a Writ of Error notwithstanding Twisden being only in Court held it to be well enough it being in the Affirmative Anonymus A Prohibition was prayed to the Ecclesiastical Court for that a Parson Libelled against one there for talking of him Knave and 't was granted it not appearing to relate to any thing concerning his Function And a Case was cited to be Adjudged 24 of the Queen the Suit being in the Ecclesiastical Court for these words viz. Sir Priest you are a Knave and a Prohibition was granted Note If a man be taken in Execution he cannot be bailed tho' he brings a Writ of Error Anonymous IN Debt upon a Lease for years the Defendant may plead Entry into part upon which follows Suspension and it doth not amount to the General Issue Heely versus Ward ERror to Reverse a Iudgment given in the Court at Hull where the Plaintiff in an Assumpsit did declare That at such a place infra Jurisdictionem Curiae the Defendant in consideration that the Plaintiff had assumed to pay him so much a yard promised to deliver him so many yards of Kersey and it was assigned for Error That the delivery is not laid to be at a place infra Jurisdictionem Curiae and indeed there is no place at all And of that Opinion was Twisden he being only in Court and cited a Case where in an Assumpsit in the Marshalsey upon a Promise to make a Lease of a House in Middle Row and after Iudgment it was held Erroneous because Middle Row was not laid to be infra Jurisdictionem Curiae The Bishop of Lincoln versus Smith THe Bishop of Lincoln sued in the Court holden before his Chancellor for a Pension to which he intituled himself by Prescription and a Prohibition was prayed for Smith the Defendant there for that being by Prescription that Court had no cognisance of it And for that my Lord Coke's Opinion was cited 2 Inst 491. especially he could not sue for it in his own Court But it was resolved by Keeling and Twisden the other Iustices being absent that Pensions tho' they were by Prescription might be sued for in that Court for having cognisance of the Principal that shall draw in the Accessory As if one Libel for a Modus decimandi if they allow it they may try it and Coke's Opinion they said was not warranted by the Books and Fitzh N.B. 524. is against it 2 Cro. 483. and the Court being held before the Chancellor and not the Bishop himself he might sue there Vide Hob. 87. Conusans of Pleas granted to be holden before the Steward of the Grantee licet the Grantee fuerit pars Anonymus AN Attachment was prayed against one who being arrested upon a Latitat gave a Warrant of Attorney to Confess a Judgment and presently after snatched it out of his hand to whom it was delivered and tore off the Seal And the Court seemed to incline in regard it was to Confess a Judgment in this Court that it was a Contempt upon which an Attachment might be granted Anonymus A Prohibition was prayed to stay a Suit in the Court Christian for Tythes upon the suggestion of a Modus which was alledged in this manner That the Proprietors and Occupiers of such a Mannor or any parcel thereof should pay a Groat to the Parson for Herbage Tythes The Court held his this could not be for if a man had but two or three Foot of Ground in the Mannor he should pay a Groat but it ought to have been laid That the Proprietors and Occupiers of such a Mannor for themselves and their Farmers had paid Four pence Twisleton versus Hobbs ACtion for these Words You are a Forger of Bonds a Publisher of Forgery and Sue upon forged Bonds The Iury found the Defendant Not Guilty as to the first Words and resolved the last Words were not Actionable if not being laid that he knew of the Forgery Sir Thomas Griesley's Case INformation against him for stopping the High-way the word was Obstupabat It was proved in Evidence that he plowed it up and Resolved it did well maintain the Information Anonymus IN Debt If
remedied either by the words or intention of the Act. Vid. Ante. Nokes and Stokes versus .... THey two brought an Action of Debt upon a Bond. The Defendant pleads the Release of one of the Plaintiffs They pray Oyer of the Release which was of all Actions Suits c. that he had against the Defendant upon his own account and pleads that this Bond was not upon his own account and upon this Issue is taken and found for the Plaintiff Now it was moved in Arrest of Judgment That this Issue was frivolous And upon the whole matter it appears that the Plaintiffs have no cause of Action for the Release of one Obligée dischargeth the Bond and it must be upon his own account But the Court Seriatim delivered their Opinions for the Plaintiffs for he might take this Bond as a security of a Debt with which he was intrusted for another And the truth of the case upon the Evidence was That the Defendant being charged with the payment of divers Legacies to Strangers was requested by one of the Plaintiffs to enter into Bond to him and the other Plaintiff who afterwards made the Release that should be Conditioned for the payment of the Money Bequeathed to the Obligees to the use of the Strangers which not being done the Defendant was Arrested at the Suit of the Plaintiffs this being made known to the Plaintiff who was absent at the taking of the Bond and knowing nothing of the Suit was contented to Release all Actions he had against the Defendant upon his own account King versus Atkins DEbt upon a Bond of 2000 l The Defendant demands Oyer of the Condition which was That whereas the Plaintiff was bound with the Defendant to the King that the Defendant should give a true account of such Moneys as he should receive for the Excise and Chimney Money And that the Defendant should save him harmless from all Payments or Suits upon that Bond and pleads that no Suits Process or Execution was against the Plaintiff upon that Bond issint he saved him harmless The Plaintiff replies a Scire facias issued against him out of the Exchequer upon the Bond and that he was forced to retain an Attorney and that he paid 1 s for his Appearance To this the Defendant Demurrs Because he did not alledge that he gave him notice And this was said not to be like Broughtons Case 5 Co. For there the Defendant knew the Money was to be paid at the day and it was to save him harmless from the single thing but here from a great many so that it was requisite he should have notice Where the Mesne is bound to acquit the Tenant the Tenant shall not recover Damages unless he gives the Mesne notice that he is distrained so that he may Replevy the Beasts But it was said That no notice ought to be given where the thing is an Act of a third person as to pay Money when J. S. comes into England To which it was answered That did not lie in the Conusance of either Party but this was in the notice of the Obligée But that which séemed most against the Demurrer in this case was That the Defendant having pleaded no Process c. he takes upon him the knowledge of it Vid. 1 Cro. 54. And if in the Replication the Plaintiff had alledged notice and the Defendant had Traversed it it would have been a departure and the Court advised until the next Term. Postea Welsh versus Bell. TRespass quare clausum fregit and taking of two Horses out of his Cart The Defendant justifies the taking of them as a Distress for Rent due to him And to this the Plaintiff Demurrs First He could not sever the Horses but ought to have distreined Cart and all according to the Book of 20 Edw. 4. 3. Distress of a Cart loaden with Corn Rolls 270. 3 Cro. 783. and four Horses in it adjudged not excessive because he could not sever the Horses And in 3 Cro. 7. a Difference is taken between Distress for Rent and Damage Feasant to this purpose And the common ground is that a Distress must be taken so as it may be returned in the same plight 1 Inst 47. a. Secondly It appeared also in the Declaration That there was a Servant of the Plaintiffs in the Cart by reason of which it was alledged that the Cart and Horses were priviledged for a Horse cannot be distrained upon which a Man is Riding 3 Cro. 549 596. Ed Adjornatur Twisden cited a Case adjudged before Rolls Chief Justice in Trespass for taking of his Trunk The Case was the Defendant distrained it for Rent and being Informed that there were things of Value in it he caused it to be Corded to prevent damage And for that he was adjudged a Trespasser ab initio Anonymus AN Action on the Case was brought against the Defendant for taking and keeping of the Plaintiffs Wife from him And upon Issue joyned the Court was moved to defer the Trial the Case being that the Wife was Daughter of the Defendant and taken from him by the Plaintiff without his Consent and as the Plaintiff affirmed Married to him Now this Marriage was questioned in the Court Christian And the Court thought it reasonable that the Trial should be delayed until the Marriage was determined there But they were Informed on the other side that the Court were ready to give Sentence That the Marriage was good and the Defendant had Appealed Wherefore they thought fit that the Trial of the Cause should proceed The King versus Nelson AN Order for the keeping of a Bastard Child being removed by Certiorari it was moved to have it quashed because it was ad Sessionem pacis in Com' praed ' and doth not say Tent ' pro ' Com' praedict ' Sed non allocatur For such strictness is not required in an Order But Twisden said it ought to be so in an Indictment It was further alledged that it ought to appear That the Child was likely to be chargeable to the Parish which was agreed But that was sufficiently set forth in the Order for upon Reading of it it appeared that he was ordered to pay such Charges as the Parish had been at Wherefore the Court confirmed the Order and awarded that he should pay such Costs as the Parish had been at for Contesting of it as was done formerly in one Haslefoot's Case And besides the Court Committed Nelson Anonymus DEbt upon a Bond Conditioned to perform Covenants If the Defendant pleads performance without demanding Oyer of the Indenture it is a good cause of Demurrer Anonymus IN Covenant the Plaintiff declares That he let the Defendant a House and that he Covenanted to Repair it The Defendant pleads That it was sufficiently Repaired before the Action brought The Plaintiff Demurs because he doth not plead That he Repaired it for it may be the Plaintiff himself did it Keeling and Raynsford inclined against the Demurrer because
constant Practice Secondly There was no good Trial for there is an Award of a Venire facias but no Writ certified But this was also Over-ruled for it is the Course of the Assizes not to make out any Writ Thirdly Issue is joyned by the Clerk of Assize which the Court said ought to be for he is Attorney General there Parker versus Welby THe Plaintiff brought an Action upon the Case against the Defendant and Declared that he Sued out a Latitat against a third Person directed to the Defendant being Sheriff who thereupon Arrested him and after let him go at large And then he Returned a Cepi Corpus paratum habuit ubi revera he had not his Body at the Day To this Declaration the Defendant Demurred supposing that no Action would lye for this False Return for the Statute of 23 H. 6. obliges the Sheriff to let to Bail and if he hath not the Body at the Day he is to be amerced But the Court were of Opinion for the Plaintiff For it shall be intended that he let him go without Bail and if he did not he ought to have pleaded the Statute of 23 H. 6. which is a Private Law And at the Common Law a man could not be let at large in such case without a Homine Replegiando Or else he might have pleaded Not Guilty and given the Statute in Evidence And so it is Adjudged in Layton and Gardiner's Case 3 Cro. 460. So Moor placito 996. 2 Cro. 352. and 3 Cro. 624. Where the Defendant pleaded That he let to Bail according to the Statute and the Plaintiff was barred Twisden cited a Case in this Court Paschae 21 Car. 1. Rot. 616. between Franklyn and Andrews where the Plaintiff Declared as in this Case And the Defendant pleaded the Statute and that he let him at large upon Sureties and traversed absque hoc that he returned his Writ Aliter aut alio modo To which the Plaintiff Demurred It was Resolved First That the Sheriff could Return nothing but Cepi Corpus And he was then amerced because he offered to make a Special Return Secondly That where the Sheriff let the parties out to the Bail and he made such Return that it was no False Return and therefore he should not have traversed Absque hoc that he Returned Aliter vel alio modo As in Maintenance where the Defendant Iustifies for that the party could not speak English and therefore he went with him to instruct his Counsel He shall traverse Absque hoc that he maintained Aliter because that he maintained Would not do tho' it be justifiable So in that case the Court ordered it to be Entred upon the Roll that Judgment was given for the Plaintiff quia Traversia fuit mala So here they Ordered it to be Entred because the Defendant did not plead the Statute of 23 H. 6. Hocking versus Matthews AN Action upon the Case was brought for Maliciously Impleading and causing him to be Excommunicated in the Ecclesiastical Court whereby he was taken upon an Excom ' Cap ' and Imprisoned until he got himself absolved The Defendant pleaded Not Guilty and found against him And it was afterwards moved in Arrest of Judgment that the Declaration was not good for no Action will lye for suing a man in the Spiritual Court tho' without cause no more than in Suing in the Temporal Courts For Fitz. N. B. is That a man shall not be punished for bringing the Kings Writs So Hob. Waterer and Freeman's Case And it hath been lately held that no Action will lye for an Indictment of Trespass tho' falso but an Action of the Case will lye for suing in Court Christian for a Temporal Cause But the Court in this Cause gave Judgment for the Plaintiff For tho' in an Action between party and party in the Ecclesiastical Court where if the matter goes for the Defendant he shall have his Costs no Action will lye if the Court hath Iurisdiction Yet where there is a Citation ex Officio and that is prosecuted malicously without ground the Party shall have his Action for in such Suit he can have no Costs And so is Carlion and Mills's Case Adjudged 1 Cro. 291. And this shall be so intended after the Verdict or otherwise the Defendant should have shewed it to be otherwise and Iustified And Rainsford said without Cause shall be understood without any Libel or Legal Proceedings against him Anonymus IN Debt upon an Obligation to perform an Award which was to pay the Rent mentioned in such an Indenture He that pleads performance of this Award needs not set forth the Indenture but refer generally to it But if it be to be paid in such manner and at such times as is expressed in the Indenture then it must be set forth at large The like of an Award of payment of Money given by a Will Wilson versus Armorer THe Case was Argued again this Term by Coleman for the Plaintiff who Argued that the Exception takes the two Closes wholly out of the Grant and that no modification can be annexed to it 3 Cro. 657. and Moor Pl. 747. A Lease was made for certain Lands excepting a Close and Covenants were for quiet Enjoyment of the Premisses The Lessee disturbed the Plaintiffs possession in the Close excepted yet he could not bring a Writ of Co-venant for by the Exception it is as much as if it had been never mentioned and in this Case the Livery being secundum formam Chartae could not work upon these Closes The Case of Hodge and Crosse cited in Hob. 171. was this A man gave Lands to another Habendum to him and his Heirs after the death of the Feoffor and Livery secundum formam Chartae Resolved a void Feoffment and relyed upon the Case in 1 Anderson 129. as full in the Point A Lease of an House excepting a Chamber pro usu suo proprio occupatione It was held that he might assign Weston ê contra This Exception is altogether void for it cannot be for the Life of the Feoffor only Bro. tit Reservation 13. and it shall not except the whole Fee against the Intention of the Parties for then the Ill wording of his Exception should give him above twice as much as otherwise be should have had and it is but one entire Sentence and taking it altogether it must have an effect which the Law doth not admit and is therefore to be wholly rejected As where a man grants his Term after his death the Grant is void Otherwise where he grants his Term habendum after his death for there the last Sentence is rejected Hob. 171. The Case of the Exception of the Chamber is not alike for excepting it for his own use are apt words to give him power to dispose of it at his pleasure Keeling Rainsford and Moreton held the Exception good for the entire Fee Twisden That it was wholly void because one Sentence Plus Postea Sympson versus Quinley
principium inde One of the Lessees died before the Lease for Life determined whereupon the Lessor brings Covenant for the 3 l and sets forth this Matter in the Declaration To which the Defendant Demurred supposing that the 3 l was not to be paid unless the Death had hapned after the Term had commenced And the Court having heard it spoken to divers times by Counsel on both sides by the Opinion of Twisden Rainsford and Moreton Iudgment was given for the Defendant For all the other Reservations but this were expresly post principium termini and Clauses in Companies are to expound one another as it is said in the Earl of Clanrickard's Case in Hobart It is in the nature of a Rent and Reservation which it is not necessary that it should be Annual And in Randall and Scories Case 1 Cro. such a Duty was distrained for and it shall attend the Reversion Rolls 457. And he that hath but an interesse termini is not to pay the Rent reserved for there is no Term nor no Reversion until it commences If A. lets to B. for 10 years and B. redemises to A. for 6 years to commence in futuro in the mean time this works no suspension of either Rent or Condition The Intention of the Parties is to be taken That it should not be paid until then However Reservations are to be taken most strongly against the Reserver As Palmer and Prowses Case cited in Suffeild's Case 10 Co. is The Reversion of a Lease for years was granted for Life reserving certain Rent cum reversio acciderit a Distress was made for the Rent arrear ever since the Grant Resolved that it was good for no more than was incurred since it fell into possession Keeling Chief Justice held strongly to the contrary For he said the words were so express in this Case that they have left no place for Construction which other Clauses or the Intention of the Parties may direct when the Expression is doubtful He took it for a Sum in gross for Distrained for it could not be being reserved upon the Death of the Lessees or either of them which was also the limitation of their Lease And that Interpretations were not to be made against the plain sense of words He relied upon Edriches Case 5 Co. where the Judges said They would not make any Construction against the express Letter of the Statute yet there was much Equity in that Case to incline them to it And he said As well as a Fine is paid upon the taking of such Lease before it begins why may not something be paid also when their Interest determines And in some Countries they call such Payments A fair Leave Miller versus Ward TRespass for breaking of his Close on the 1st of August and putting in his Cattel The Defendant Iustifies for Common which he prescribes for in this manner viz. That two years together he used to have Common there after the Corn reaped and carried away until it was sown again and the Third year to have Common for the whole year and that that Year the Plaintiff declares for the Trespass was one of the years the Field was own quod post grana messa c. he put in his Cattle absque hoc that he put them in aliter vel alio modo The Plaintiff Demurs which it was Ruled he might for the Defendant doth not answer to the Time wherein the Trespass was alledged and the Traverse will not help it for aliter vel alio modo doth not refer to the time Anonymus AN Administrator brings Debt upon an Obligation The Defendant pleads payment to himself Vpon which it was found for the Defendant Coleman prayed that he might have Costs As where an Executor brings an Action sur Trover and Conversion in his own time and found against him it was Ruled in Atkyes Case 1 Cro. that he should pay Costs and hereof his own knowledge he had no cause of Action the Money being paid to himself But the Court Resolved That there ought to be no Costs in this Case for the Action of Trover in his own time might have been brought in his own Name so it was needless to name himself Executor or Administrator but the Action here is meerly in right of the Intestate Harvey versus James AFter Verdict at the Assizes the Clerk delivered the Postea to the Attorney by whose negligent keeping it came to be eaten with Rats But the Court Examining the Clerk of Assize it appeared that he had Entred the Jurors Names Verdict and Tales in his Book and according to that the Court suffered the Verdict to be entred on Record Anonymus IN an Action of Battery against Baron and Feme the Jury find the Feme only Guilty and not the Baron It was moved in Arrest of Judgment That this Verdict was against the Plaintiff for he ought in this Case to have joyned the Baron only for conformity and he declaring of a Battery by both the Baron being acquitted he hath failed of his Action and so is Yelverton 106. in Drury and Dennys Case But here the Court gave Iudgment for the Plaintiff and said that that in Yelvetron was a strange Opinion Anonymus A Certiorari was prayed to remove an Indictment of Manslaughter out of Wales which the Court at first doubted whether they might grant in regard it could not be tryed in an English Country But an Indictment might have béen found thereof in an English County and that might be tryed by 26 H. 8. cap. 6. vid. 1 Cro. Soutley and Prices Case and Chedleys Case But it was made appear to the Court That there was a great cause to suspect Partiality if the Tryal proceeded in Wales for the Party was Bailed already by the Justices of Peace there which Twisden said it was doubtful whether they had power to do for Manslaughter They awarded a Certiorari and took Order that the Prosecutor should be bound by Recognizance to prefer an Indictment in the next English Country Collect versus Padwell IN Debt upon a Bond to perform an Award which was That one should make a Lease to another before the 21 of October which was 2 or 3 Months after the Award and that the other upon the making of the Lease should pay him 50 l The Question was Whether notice in this Case ought to be given when he would make the Lease for otherwise it was said the other must have 50 l always about him or be in danger to break the Award And it was resolved by the Court That no notice was necessary Noell versus Nelson MIch 21. Car. 2. Rot. 745. Error to Reverse a Judgment given in the Common Pleas where the case was thus Nelson brings Debt against Noel as Executor of Sir Martyn Noel who pleads plene administravit The Plaintiff confesseth the Plea and prayeth Iudgment de bonis Testatoris quae in futoro ad manus Defendentis devenirint and upon a Suggestion of Assets afterwards he
had a Scire facias against Noell and Iudgment thereupon Noell brings a Writ of Error and assigned it in this that the Plaintiff confessing the Plea of fully Administred ought to have béen barred And it was argued by Wynnington for the Plaintiff and Sympson for the Defendant Wynnington Where an Executor pleads falsely or deceitfully Iudgment is to be given against him as upon â—he unques Administer come Executor Iudgment shall be de bonis propriis But where he Pleads truly it is the Reason the Plaintiff should be barred and the Plaintiff confessing his Plea It is as strong as if found by a Jury or rather more for Verdicts may be false and therefore Attaints are provided and such express confession as here is is much stronger than an implied Confession sur Demurrer Indeed if upon plene Administravit Assetts are found for part of the Debt Iudgment shall be for the whole 8 Rep. 134. Shipley's Case Because the Plea was false But if an Executor should be liable to be Sued and have Iudgment given against him when he had fully administred it would put a great inconvenience upon him as to be put to charge to defend the Suit and to be in Misericordia And whereas it was objected That if the Plaintiff should be barred in such Case he would yet have no advantage by Commencing his Suit of having his Debt paid before other Debts in pari gradu he answered this inconvenience is not to be matched with that that the Executor should be liable to besides the Law will ever favour the Executor for if an Executor be Sued and the Plaintiff Nonsuit he shall have Costs but an Executor Plaintiff shall pay no Costs upon a Nonsuit 3 Cro. 503. vid. Hob. 83. Lawneys Case Also a Man may be presumed to know whether an Executor hath Assetts or no for he may consult the Inventory And for the Cases that might be objected as that of the Warrantia Chartoe against an Heir who Pleads Riens per descent or that the Plaintiff is not impleaded the Plaintiff may pray Iudgment presently F. N. B. 134. He Answered 't is true the Writ may be brought quia timet for he may be after impleaded in an Action wherein he cannot Vouch yet if he be after impleaded in a Praecipe he must Vouch and this is a line real and the Heir merely in loco patris whereas when an Executor hath fully Administred the Executorship is as it were determined And for the Case where Debt is brought against the Heir who Pleads riens per descent the Plaintiff may pray Iudgment presently to have Execution of Assetts as shall afterwards descend he said he knew no particular Authority where it was so done but if it be so as it is said in Shipleys Case yet not to be resembled to this Case for the Heir is charged as for his own Debt and the Action is in the Debet Detinet Com. 443. and if the Heir Pleads riens per discent and found against him the Iudgment is general not so so of an Executor so where the Iudgment is sur nihil dicit Moor 522. Dier 81. 344. 2 Rolls 67. Tit. Heir so where he confesses the Action but if an Executor after pleading Plene Administravit confess the Action the Iudgment shall be de bonis Testatoris Hob. 178. And for the Opinion in Shipleys Case 8 Rep. which is according to the Iudgment here he said it was obiter but he relied upon Cro. Dorchester and Webbs Case where that Opinion is denied and said there that all the Presidents are that the Plaintiff is in such case to be barred Rastals Entries 323 324. Sympson contra The nature of the Plea is to be considered it both not deny the Cause of Action but goes only to take away the present effect of it remoto impedimento resurgit Actio vel Executio 34 H. 6. 23. Prisot saith If an Executor Pleads ne unques Executor and found against him Iudgment is to be de bonis propriis But otherwise If he Pleads Plene Administravit for then be doth not put the Party from his Action for ever He said the Case of the Action of Debt against the Heir was the same for he is bound only by reason of the Land descended 1 Rolls 929. If an Executor Pleads Plene Administravit and the Plaintiff takes Issue and found against him he is to be barred for he as the Book saith hath waived his advantage he cited also the Book of the Office of Executors 3 Cro. 887. supposed to be written by Doderidge lib. 7. cap. 15. and relied pricipally upon Shipleys Case 8 Co. 134. which is cited and allowed in Hob. 199. And upon a President in this Court Trin. 13 Jac. Rot. 1104. between Perryman and Westwood where Iudgment was just as in this Case and Mich. after Rot. 206. Vpon Suggestion of Assets a Scire facias was taken out and Issue taken and tried at Guild-hall before my Lord Coke where Assetts were found for part and Iudgment to Recover so much and the residue if Assetts should come after which as to the latter Iudgment was somewhat further than the principal Case Keeling Rainsford and Moreton Held clearly that Iudgment ought to be affirmed chiefly for the great inconvenience it would be to one that had Commenced an Action and yet his Debt should have no preference before others of the same sort and many times the Testator leaves a great Estate in Bonds and Specialties which yet are no Assetts until the Money is paid Whereas the Case of the Heir is much stronger in regard of the improbability of his having Assetts in futoro In 16 H. 7. 10. it is said if an Executor Pleads Plene Administravit it is but a Temporal bar A Rent is granted in Fee provided that it shall cease during the minority of the Heir the Wife brings Dower the Heir being under Age she shall have Iudgment sed cesset Executio Vid. Hutton 128. the case reported without any such Opinion Twisden stuck much to the Authority of Dorchester and Webbs Case but at length consented that Iudgment should be affirmed Note The Iudgment was in Misericordia and the Court doubted at first whether it were not Erroneous for that Cause but it appeared that the Executor did not come in primo die wherefore notwithstanding they affirmed the Iudgment Ante. Termino Sancti Michaelis Anno 22 Car. II. In Banco Regis Prydyerd versus Thomas A Writ of Error was brought upon two Judgments given in an inferiour Court and they returned two Records betwéen the same Parties but it seems not those which the Plaintiff intended and this was complained of to the Court and it appeared that those which the Plaintiff brought his Writ of Error upon were not determined for Writs of Enquiry of Damages were returned but no Judgments entred Curia If there be divers Records betwéen the same Parties the inferiour Court may remove which they please they being
brought in all their Names and it was Resolved in the Kings-Bench that the Action was well brought and affirmed upon a Writ of Error in the Exchequer Chamber But if in the Case at Bar they ought to joyn they must appear by Guardian It having depended divers Terms It was now Resolved by Rainsford and Moreton that the Action was well brought and they relyed upon the Case in Yelverton and they said the Case of Hatton and Mascue was no Authority against it for there they were named and where some are of Age no Administration durante minori aetate is to be granted They held also that the appearance ought to be by Attorney because they joyn with others and so in auter droit and so is 3 Cro. 377. the Countess of Rutland's Case and 541. Resolved that an Infant Administrator shall sue by Attorney See 1 Roll. 288 and 2 Cro. 420 421. Cotton and Westcote's Case The difference is taken where an Infant Executor is Defendant and where Plaintiff and Judgment given for him in which last Case only the appearance by Attorney is said to be good Twisden contra An Infant cannot in any wise sue or defend by Attorney First Because he cannot make an Attorney Secondly If it should be allowed he might be amerced pro falso clamore and no way to avoid it but by bringing a Writ of Error Thirdly He might be injured by the Attorney's Plea and could not remedy himself as he may against his Guardian as if in Debt the Defendant should plead a Release and the Attorney confess it And he cited a Case in this Court Mich. 1649. between Colt and Sherwood Where an Administrator brought an Action and it appeared by the Record that he was above 17 yet it was Ruled he ought to sue by Guardian For tho' by the Civil Law he was of Age to undertake the Administration yet the manner of his Suing was to be determined by our Law and that could not be by Attorney until the age of 21. Another Case be cited between Peyton and Dorce adjudged in the Court upon a Writ of Error out of the Petit Bag where Peyton sued as Administrator and the Entry was Quod queritur and did not express whether per Attornat ' Guardianum or how and had Judgment and Error was brought in this Court and these Four Points were Resolved First That a Writ of Error did lye out of the Petit Bag into this Court upon an Error in Fact Secondly That the Entry being General it should be taken that the appearance was in propria persona Thirdly That the Plaintiff being an Infant tho' an Administrator could not sue or appear but by Guardian or Prochein amy Fourthly That the Statute of Jeofails did not aid this Case which expresses only the Defendant's appearing by Attorney As to the other Point He inclined that the Action brought by them all was well enough But he acknowledged that much might be urged against the Case of Hatton and Mascue for the naming of them could signifie nothing not being made parties to the Action But he was not so much swayed by that Authority because he held that the Cause did not come well into the Exchequer Chamber being a Scire facias upon which he said no Writ of Error lay thither tho' upon a Judgment no more than upon a Recognizance and said They did joyn here as it were for Conformity As if a Feme Infant be made Executrix and Marries the Administration durante minori aetate ceases tho' she be under 17 and she and her Husband shall Sue The Chief Justice was absent being Sick and so the Plaintiff had Judgment by the Opinion of Rainsford and Moreton Ward versus Rich. WArd brought an Action against Hatton Rich de uxore abducta and keeping of her from him usque such a day which was sometime after the exhibiting of the Bill and concluded contra formam Staturi After Verdict for the Plaintiff it was moved in Arrest of Judgment and the Declaration was held good notwithstanding the impertinent Conclusion of contra formam Statuti there being no Statute in the Case Secondly The Court Resolved that Judgment should be stayed for the Jury shall be intended to give Damages for the whole time mentioned in the Declaration As in Trespass with a Continuando to a day after the Writ brought the Plaintiff shall not have Judgment after Verdict which gives Damages by Intendment for the whole time declared for And Twisden said These two Cases were Resolved A Tradesman brought an Action in an Inferiour Court for slandering of him in his Trade by which he lost his Custom within the Iurisdiction of that Court alibi and it was held maintainable notwithstanding the alibi The other was an Action brought upon the Sale of several things for divers Sums of Money quae quidem pecuniarum summae attingunt ad 10 l whereas rightly computed they came but to 9 l The Jury gave Damages less than 9 l and it was held good But if the Verdict had been for 10 l it had been naught The King versus Ledgingham AN Information was brought against Ledgingham for that he being a man of an unquiet Spirit communis perturbator oppressor vicinorum tenentium had taken excessive Distresses of divers of his Tenants After Verdict for the King at the Assizes it was said That no Judgment could be given upon this Information which was said to be defective both in matter and form It hath been often Ruled that Communis oppressor or such like General words without particularizing Offences was insufficient in an Indictment or Information unless the word Communis Barrectator which is of known signification in Law and comprehends divers Crimes and Twisden said is as much as Common Knave 9 Ass 2. Communis latro not good Vid. Roll. 79. Moor 451. neither can an Information be exhibited for taking of excessive Distresses for that was not punishable until the Statute of Marlebridge cap. 4. which saith that he that so Distrains shall be amerced whereas upon an Information he must of necessity be fined 2 Inst 107. Again It ought to have been expressed upon what Tenants the Distresses were taken with their Names otherwise it is too incertain One was Indicted for that he serving upon such a Grand Enquest did reveal the Secrets of the King and himself It was Resolved to be ill because not expressed what Secrets Moor 451. and of this Opinion was the Court in omnibus Ante. Pierson versus Ridge IN Replevin the Defendant made Conusans as Bayliff to a Lord of a Mannor who had a Court Leet by Prescription and laid a Custom for such a Township to send one to be sworn Constable there which not being done a Fine was set and this Distress taken for it Vpon which it was Demurred because no Custom was alledged to warrant the Distress For tho' of common Right a Distress may be taken for a Fine in a Court Leet that
here to forbear to Sue generally but to stay a Suit against the Defendant whom he could not Sue To which it was answered That after a Verdict it shall be intended there was cause of Suit as Hob. 216. Bidwell and Cattons Case And Attorney brought an Assumpsit upon a Promise made to him in Consideration that he would stay the Prosecution of an Attachment of Priviledge and there held that it need not appear that there was cause of Suit for the Promise argues it and it will be presumed And here 't is a strong intendment that the Bond was made in Common Form which binds the Heirs But Iudgment was given against the Plaintiff for the Court said it might be intended that there was cause of Action if the contrary did not appear which it doth in this Case for the Bond cannot be intended otherwise than the Plaintiff himself hath expressed it which shews only that the Ancestor was bound And whereas it was said by the Plaintiff's Counsel that this would attaint the Jury they finding Assumpsit upon a void Promise Hale said there was no colour for that conceit The Plaintiff having proved his Promise and Consideration as 't was laid in the Declaration which is the only thing within their charge upon Non Assumpsit modo forma Bulmer versus Charles Pawlet Lord Saint John IN an Ejectment upon a Tryal at Bar this question arose upon the Evidence Tenant for Life Remainder in Tail to J. S. joyn in a Fine J.S. dies without Issue whether the Conusee should hold the Land for the Life of the Tenant for Life Serjeant Ellis pressed to have it found Specialy tho' it is resolved in Bredons Case that the Estate of the Conusee shall have Continuance but he said it was a strange Estate that should be both a Determinable Fee and an Estate pur auter vie and he cited 3 Cro. 285. Major and Talbots Case where in Covenant the Plaintiff sets forth that a Feme Tenant for Life Remainder in Fee to her Husband made a Lease to the Defendant for years wherein the Defendant covenanted with the Lessors their Heirs and Assigns to repair and they conveyed the Reversion to the Plaintiff and for default of Reparations the Plaintiff brought his Action as Assignee to the Husband And resolved to be well brought because the Wives Estate passed as drowned in the Fee The Court said Bredons Case was full in the point but the Reason there given Hale said made against the Resolution for 't is said that the Remainder in Tail passes first which if it does the Freehold must go by way of Surrender and so down but they shall rather be construed to pass insimul uno flatu Hob. 277 In Englishes Case it was resolved it Tenant for Life Remainder in Tail to an Infant joyn in a Fine if the Infant after Reverse the Fine yet the Conusee shall hold it for the Life of the Conusor 1 Co. in Bredons Case and he resembled it to the Case in 1 Inst a Man seized in the right of his Wife and entituled to be Tenant by the curtesie joyns in a Feoffment with his Wife the Heir of his Wife shall not avoid this during the Husbands Life Nevertheless he told Ellis That he would never deny a Special Verdict at the request of a Learned Man but it appearing that he Plaintiff had a good Title after the Life should fall the Defendant bought it of him and the Jury were discharged Sacheverel versus Frogate PAs 23 Car. 2. Rot. 590. In Covenant the Plaintiff declared That Jacinth Sacheverel seized in Fee demised to the Defendant certain Land for years reserving 120 l Rent And therein was a Covenant that the Defendant should yearly and every year during the said Term pay unto the Lessor his Executors Administrators and Assigns the said Rent and sets forth how that the Lessor devised the Reversion to the Plaintiff an for 120 l Rent since his decease he brought the Action The Defendant demanded Oyer of the Indenture wherein the Reservation of the Rent was yearly during the Term to the Lessor his Executors Administrators and Assigns and after a Covenant prout the Plaintiff declared and to this the Defendant demurred It was twice argued at the Bar and was now set down for the Resolution of the Court which Hale delivered with the Reasons He said they were all of Opinion for the Plaintiff For what interest a Man hath he hath it in a double capacity either as a Chattel and so transmissible to the Executors and Administrators or as an Inheritance and so in capacity of transmitting it to his Heir Then if Tenant in Fee makes a Lease and reserves the Rent to him and his Executors the Rent cannot go to them for there is no Testamentary Estate On the other side if Lessee for a 100 years should make a Lease for 40 years reserving Rent to him and his Heirs that would be void to the Heir Now a Reservation is but a Return of somewhat back in Retribution of what passes and therefore must be carried over to the Party which should have succeeded in the Estate if no Lease had béen made and that has béen always held where the Reservation is general So tho' it doth not properly create a Fee yet 't is a descendible Estate because it comes in lieu of what would have descended therefore Constructions of Reservations have been ever according to the Reason and Equity of the thing If two Joynt-teants make a Lease and reserve the Rent to one of them this is a good to both unless the Lease be by Indenture because of the Estoppel which is not in our Case for the Executors are Strangers to the Deed. 'T is true if A. and B. joyn in a Lease of Land wherein A. hath nothing reserving the Rent to A. by Indenture this is good by Estoppel to A. But in the Earl of Clare's Case it was resolved That where he and his Wife made a Lease reserving a Rent to himself and his Wife and his Heirs that he might bring Debt for the Rent and declare as of a Lease made by himself alone and the Reservation to himself for being in the Case of a Feme Covert there could be no Estoppel altho' she signed and sealed the Lease There was an Indenture of Demise from two Joynt tenants reserving 20 l Rent to them both one only sealed and delivered the Deed and he brought Debt for the Rent and declared of a Demise of the Moiety and a Reservation of 10 l Rent to him And resolved that he might Between Bond and Cartwright which see before and in the Common Pleas Pas 40. Eliz. Tenant in Tail made a Lease reserving a Rent to him and his Heirs It was resolved a good Lease to bind the Entail for the Rent shall go to the Heir in Tail along with the Reversion tho' the Reservation were to the Heirs generally For the Law uses all industry imaginable to conform
there be not an Entry immediately a Livery within the View is not good and in this case by the Marriage he becomes seised in the Right of his Wife and cannot by his own Act divest himself of that Estate or work a prejudice to his Wife by putting the Estate out of her Which makes it differ from the Case of the 38 E. 3. 11. b. Where a man made Livery of the within View to a Woman and before she Entred married her and claimed the Estate in Right of his Wife there held to be a good Feoffment For in that case there is no Alteration of the Estate consequent upon the Intermarriage Neither is it like the Case of 2. R. 2. quoted in Forse and Hemling's Case in the 4 Co. Where a Woman grants a Reversion to a Man and they Intermarry before Attornment For there the Grant is to be perfected by the Act of a Stranger which in reason should be more available to a man than his own Act. But it was Resolved by all the Court that this Livery was well Executed after the Marriage For an Interest passeth by the Livery in View which cannot be countermanded The effectual part of it viz. Go Enter and take possession was before the Marriage tho' the Estate is not in the Feme while Entry She hath done all on her part to be done and hath put it meerly in the Foffor's power and when he Enters it hath a strong retrospect to the Livery and shall be pleaded as a Feoffment when she was sole If two Women Exchange Lands and one marries before Entry this shall not defeat the Exchange The Cases of 2 R. 2. and 38 Ed. 3. are as strong Emerson versus Emerson TRin. ult Rot. 1389. Error of a Judgment in the Common Pleas in an Action of Trespass by the Plaintiff as Executor upon the Statute of 4 E. 3. De bonis asportatis in vita Testatoris The Plaintiff declared that the Defendant blada crescentia upon the Freehold of the Testator messuit defalcavit cepit asportavit Vpon Not Guilty pleaded a Verdict and Judgment was for the Plaintiff and assigned for Error That no Action lay for Cutting of the Corn for that is a Trespass done to the Freehold of the Testator for which the Statute gives the Executor no Action and while the Corn stands 't is to many purposes parcel of the Freehold So that if a man cuts Corn and carries it away presently tho' with a Felonious intent 't is no Felony Otherwise if he let it lye after 't is Cut and at another time comes and steals it So that it appears for parcel of the Trespass no Action lyes then entire Damages being given as well for the Cutting as Carrying away the Corn the Judgment is Erroneous But all the Court were of another Opinion 9 Co. 78. for 't is but one entire Trespass the Declaration only describes the manner of Taking it away Indeed if it had been quare clausum fregit blada asportavit it had been naught or if he had Cut the Corn and let it lye no Action would have lain for the Executor So if the Grass of the Testator be Cut and carryed away at the same time because the Grass is part of the Freehold but Corn growing is a Chattel The Statute of 4 Ed. 3. hath been always Expounded largely Mr. Amhurst's Case of Grays-Inn SErjeant Maynard moved for a Mandatory Writ to the Mayor and Court of Aldermen of London upon the Statute of 13 Car. 2. c. 11. to give Judgment according to the late Act of 22 nunc Regis The Case was That the Act appoints a Market to be on certain Ground set out in Newgate-Market and in all such cases for the satisfaction of the Owners of the Ground if the City cannot agree with them for it it Impowers the Mayor and Aldermen to Empannel a Jury who shall Assess and Adjudge what satisfaction and recompence shall be given to the Owners and says That the Verdict of such Jury on that behalf to be taken and the Judgment of the said Mayor and Court of Aldermen thereupon and the Payment of the Money so awarded or adjudged c. shall be binding and conclusive to and against the Owners c. Now there was Fifteen thousand Foot of Amhurst's Ground taken away for this purpose and a Jury had been Empannelled and had assessed and awarded him Two shillings a Foot but the Mayor and Court of Aldermen refused to give Sentence or Judgment thereupon This says he is a Ministerial thing and this Court will interpose when any Officers will not do Iustice or will out-go their Authority For there is the same Reason to command to do Justice as to prohibit Injustice A Bishop of Exon had Fallen-out with a Town in Cornwal and denyed them Chrisme and a Mandamus went hence to command him to give it them Mr. Noy brought in a Copy of it Sir William Jones This somewhat resembles a Procedendo ad Judicium this is stronger than the Case of commanding a Bishop to grant Administration there this Court commands them to observe a Statute tho' it be in a Matter this Court has no Cognizance of We can't have an Action on the Case Hale If they don't make you Satisfaction your Interest is not bound Maynard But that is taken away by the same Act Pag. 143. 4. We are Lessee to â—he Dean and Chapter of St. Pauls Hale 'T is not Enacted That they shall give Judgment but that is implyed I never knew a Writ commanding to grant Administration tho' the Opinion has been so Sir William Jones That was done in Sir G. Sandy's Case after great Debate Then a Rule was made to shew Cause why a Writ should not go Afterwards the Court granted a Writ but willed them to consider well of the Form and to whom to direct it Loyd versus Brooking TRin. ult 1046. The Case was Tenant for Life Remainder to his first Son in Tail Remainder to J. S. for Life Remainder to his first Son in Tail c. Tenant for Life after the Birth of his first Son accepts a Fine from J. S. to certain uses and then makes a Feoffment after which the Son of J. S. is Born and whether his Contingent Remainder were destroyed or should vest in him was the Question And it was Resolved by the whole Court upon the first Opening that the Contingent Remainder was not destroyed the acceptance of the Fine displaced nothing the Feoffment divested all the Estates but the Right left in the first Son in Remainder supported the Contingent Remainders My Lord Coke's Case 2 Rolls 796 797 is stronger He Covenanted to stand seised to the use of himself for Life Remainder to his Wife for life Remainder to his Daughter for Life when born Remainder to her first Son in Tail And minding to disturb the arising of the Contingent Estates attempted it by these two Means First He grants the Reversion and in the
business to enquire of the Condition of her whom he will make his Wife Then the next thing to be considered is the Infancy of the Defendant and that is nothing in this Case Porter who was the probablest person to give notice is found to be an Infant too Conditions in Fact bind Infants Again the Condition here relates to an Act which she is capable of doing The Statute of Merton which Enacts Non currant usurae c. whereby Infants are exempted from Penalties yet in another Chapter gives the Forfeiture of the said double value to the Lord where his Ward Marries without his consent 'T is a restraint laid upon her in a matter proper for her Condition and with respect to her Condition that being and Infant she might advise with her Friends about her Marriage The Cases which have been objected do not come to this Case as the Opinion in Sanders and Carwells Case which might be good Law if it could be known what that case was for the words might either explicitly or implicitly require notice as if they were if he refused to pay c. or it may be no time might be set for payment for in Molineux Case there Rents were granted and after a Devise for the payment of them which naturally lie in demand Secondly There it concerned the younger Children to give notice for the Rents were not only to be paid to them but upon failer of payment the Land was Devised to them So that was a Concurrence of concern in them as to the performance of the Condition and the Estate they should acquire by the Breach Whereas the Plaintiff in this Case is not concerned in the performance of the Condition Thirdly The penning of the Condition were quite differs for 't is upon default of payment which implies notice must be first had In Frances Case there would have been no need of notice if the Devise had not béen to the Heir which is the only thing wherein it differs materially from this Case In Alfords Case the debate was occasioned by the special penning for it was thus that if thorough Obliviousness the Trusts should not happen to be performed Now there could be no Oblivion of that they never knew therefore there is some Opinion there that the Mayor and Citizens of L. ought to have had a precedent notice yet the Judgment is contrary for they could not have been barred by the Fine and Non-claim if notice had been necessary to the Commencement of their Title and 't is not found whether those to whom the Estate was devised before had notice so that this cause proves rather that there needs no notice in this case than otherwise Wherefore the Plaintiff must have his Judgment When my Lord Chief Justice had concluded Rainsford said he had spoken with Justice Moreton who declared to him that he was of the same Opinion Fitzgerald versus Marshall ERror of a Judgment given in the Kings Bench in Ireland in affirmance of a Judgment removed thither by Error out of the Common Pleas in Ireland By the Record it appeared that the Writ of Error to the Common Bench was directed Rob. Booth Militi Socijs suis quia in Recordo processu ac in redditione Judicij loquelae quae suit coram vobis Socijs vestris And the Judgment certified appeared to be in an Action commenced in the time of Sir R. Smith who died and Sir R. Booth made Chief Justice in his place before Judgment given And the Court here were of Opinion that the Record was not well removed into the Kings Bench there by that Writ which commanded them to remove Recordum loquelae coram R. Booth whereas the loquela commenced before R. Smith and the Titling of the Record is in such case placita coram R. Smith c. tho' some of the Continuances might be entred coram R. Booth and the Judgment given in his time and for this Cause the Judgment given in affirmance in the Kings Bench there was reversed Sir Samuel Sterling versus Turner ERror of a Judgment in the Common Bench in an Action upon the Case where the Plaintiff declared upon the Custom of London of Electing of two Men in the Office of Bridge-masters every year by the Citizens assembled in a Common Hall and a Custom that if two be Competitors he that is chosen by the greatest number of Votes is duely Elected and that if one in such case desire the Polls to be numbred the Mayor ought to grant the Poll. And shews that there was a Common Hall assembled the 18 of October 22. Regis nunc Sterling being Mayor and that then the Plaintiff and one Allet stood as Competitors to be chosen to that Office and avers that he had the greatest number of Voices and that he affirmed then and there that he had the greatest number which the other denying he requested the Mayor that according to the Custom they might go to the Poll and the Defendant not minding the Execution of his Office but violating the Law and Custom of the City then and there did maliciously refuse the numbering of the Polls but immediately made Proclamation and dismissed the Court by which he lost the Fees and Profits of the Place which he averred belonged unto it Vpon Not guilty pleaded and Verdict for the Plaintiff after it had béen several times argued in Arrest of Judgment that this Action did not lie it was adjudged for the Plaintiff by Tyrrel Archer and Wyld Vaughan dissenting And now Error was brought and assigned in the matter of Law and argued for that it was incertain whether the Plaintiff should have been Elected and that he could not bring an Action for a possibility of damage and this was no more not being decided who had the greatest number of Voices But the Court were clear of Opinion that the Judgment should be affirmed for the Defendant deprived the Plaintiff of the means whereby it should appear whether he had the greatest number of Electors or no. And Hale said it was a very good President and so it was adjudged by both Courts One D. of Bedfordshire Esquire was indicted of High Treason for coyning a great number of counterfeit pieces of Guinnies of Gold 23 Regis nunc and being Arraigned at the Bar he pleaded the Kings Pardon which was of all Treasons and of this in particluar but did not mention that he stood indicted Twisden said that my Lord Keeling was of Opinion that such a Pardon was not good But Hale said it might be well enough in this case but in case of Murther it is necessary to recite it because of the Statute of 27 E. 3. 2. vid. 10 E. 3. 2. 14 E. 3. 15. and so it was allowed The Lady Chesters Case A Prohibition was prayed to the Prerogative Court of Canterbury Sir Henry Wood having devised the Guardianship of his Daughter by his Will in VVriting according to the Act of this King to the Lady Chester his
only shewn upon the Declaration to enable the Plaintiff to bring his Action Note This is aided by a late Act of Parliament Jay versus Bond. IN Trespass the Defendant pleads that Ante Quinden ' Sancti Martini usque ad hunc diem praed ' Jay Excommunicatus fuit adhuc existit protulit hic in Cur ' literas Testamentarias Episcopi Sarum quae notum faciunt universis quod scrutatis Registeriis invenitur contineri quod Excommunicat ' fuit c. pro contumacia in non comparendo to a Suit for Tythes c. in cujus rei Testimonium praed ' Episcopus Sigillum apposuit It was objected that such a kind of Certificate of Excommunication as this is was not allowable for it ought to be positive and under the Seal of the Ordinary whereas this is only a relation of what is found in their Register Sed non allocatur for tho' such a form of pleading would be altogether insufficient in our Law yet their course is sometimes to certifie Excommunication sub sigillo Ordinarij and sometimes per literas Testamentarias as here Hale said to plead Letters Patents without saying sub magno sigillo is naught and that because the King has divers Seals Note The entry was here quod Defendens venit dicit c. Hale doubted whether he ought not to have made some kind of defence tho' no full defence is to be made when Excommengment in the Plaintiff is pleaded Owen versus Lewyn THe Plaintiff declared in Action upon the Case upon the Custom of the Realm against a Common Carrier and also sur Trover and Conversion Hale said so he might for Not guilty answers both but if a Carrier loseth Goods committed to him a General Action of Trover doth not lye against him Termino Sancti Michaelis Anno 24 Car. II. In Banco Regis Davenant against the Bishop of Salisbury IN Covenant The Plaintiff declared that the Bishop of Salisbury the Defendants Predecessor being seized in Fee demised unto him certain Lands for 21 years reserving the antient Rent c. and Covenanted for him and his Successors to discharge all publick Taxes assessed upon the Land and that since the Defendant was made Bishop a certain Tax was assessed upon the Land by vertue of an Act of Parliament and that the Plaintiff was forced to pay it the Defendant refusing to discharge it unde Actio accrevit c. The Defendant demurred first to the form for that 't is said that the Predecessor Bishop was seized and doth not say in jure Episcopatus But Hale said the Old Books were that where it was pleaded that J. S. Episcopus was seized that it implies seizin in the right of the Bishoprick which is true if he were a Corporation capable only in his politick capacity or as an Abbot c. but in regard he might also be seized in his natural capacity the Declaration was for this Cause held to be ill The matter in Law was whether this were such a Covenant as should bind the Successor as incident to a Lease which the Bishop is empowred to make by the 32 H. 8. For 't is clear if a Bishop had made a Covenant or Warranty this had not bound the Successor at the Common Law without the consent of the Dean and Chapter and if it should be now taken that every Covenant would bind the Successor then the Statute of 1 Eliz. would be of no effect But Hale said admitting this were an antient Covenant and if so it should have been averred to have been used in former Leases to discharge ordinary payments as Pentions or Tenths granted by the Clergy then it might bind the Successor by the 32 H. 8. But it were hard to extend it to new charges And we all know how lately this way of Taxes came in But the Court said that the Declaration being insufficent for the other matter they would not determine this But they held that however this Covenant should prove it would not avoid the Lease Vid. Gee Bishop of Chicester and Freedlands Case 3 Cro. 47. Note Hale said that antiently when the Sheriff returned a Rescous upon a Man he was admitted to plead to it as to an Indictment But the course of the Court of latter times has been not to admit any Plea to it but to drive the party to his Action upon the Case as upon the return of a Devastavit c. Cole versus Levingston IN Ejectment upon a long and intricate Special Verdict the Chief Justice said never was the like in Westminster Hall these following Points were resolved by the Court and declared by Hale as the Opinion of himself and the rest of the Judges First That where one Covenants to stand seized to the use of A. and B. and the Heirs of their Bodies of part of his Land and if they die without Issue of their Bodies then that it shall remain c. and of another part of his Land to the use of C.D. and E. and the Heirs of their Bodies and if they die without Issue of their Bodies then to remain c. that here there are no cross Remainders created by Implication for there shall never be such Remainders upon construction of a Deed tho' sometimes there are in case of a Will 1 Rolls 837. Secondly As this Case is there would be no cross Remainders if it were in a Will for cross Remainders shall not rise between three unless the words do very plainly express the intent of the Devisor to be so as where black Acre is devised to A. white Acre to B. and green Acre to C. and if they die without Issue of their Bodies vel alterius eor ' then to remain there by reason of the words alterius eor ' cross Remainders shall be Dier 303. But otherwise there would not Gilbert v. Witty and others 2 Cro. 655. And in this case tho' some of the Limitations are between two there shall be no cross Remainders in them because there are others between three and the intent shall be taken to the same in all The Dean and Chapter of Durham against the Lord Archbishop of York IN a Prohibition the Archbishop pleaded a Prescription that he and his Predecessors have time out of mind been Guardians of the Spiritualties of the Bishoprick of Durham Sede vacante and Issue joyned thereupon and tried at the Bar this Term. Hale said De jure communi the Dean and Chapter were Guardians of the Spiritualties during the vacancy as to matters of Jurisdiction but for Ordination they are to call in the aid of a Neighbouring Bishop and so is Linwood But the Usage here in England is that the Archbishop is Guardian of the Spiritualties in the Suffragan Diocess and therefore it was proper here to joyn the Issue upon the Usage There was much Evidence given that antiently during the vacancy of Durham the Archbishop had exercised Jurisdiction both Sententious and other as Guardian of the Spiritualties
to Bernard to make his Wife a Joynture it shews that it was intended he should have but an Estate for Life which needed such a Power and not an Estate Tail for then he might have made a Joynture without it I Answer That Tenant in Tail cannot by virtue of such Estate make a Joynture without discontinuing or destroying his Estate Sed Judicium pro Quer ' There being Justice Twisden and Justice Rainsford against the Chief Justice Termino Sancti Hillarij Anno 24 25 Car. II. In Banco Regis Anonymus A Prohibition was prayed to the Ecclesiastical Court for that they Cited one out of the Diocess to Answer a Suit for a Legacy But it was denied because it was in the Court where the Probat of the Will was For tho' it were before Commissioners appointed for the Probat of Wills in the late Times yet now all their Proceedings in such cases are transmitted into the Prerogative Court And therefore Suits for the Legacies contained in such Wills ought to be in the Archbishop's Court for there the Executor must give account and be discharged c. Note When a man is in custodia Marescalli any man may Declare against him in a Personal Action and if he be bailed out he is still in custodia to this purpose viz. quoad Declarations brought in against him that Term For the Bail are as it were Delegated by the Court to have him in Prison Hob. Error is not well assigned That there was no Bail filed unless added That the Defendant was not in custodia Debt IN an Action of Debt upon a Sheriffs Bond the Case was this A man was Arrested upon a Latitat in placito Transgr ' ac etiam bille pro 40 l de debito And the Condition of the Bond given to the Sheriff was to appear at the Day of the Return of the Writ to answer to the Plaint in plito debito And it was urged that this made the Bond void by the Statute of 23 H. 6. for the Condition should have been to Appear at the Day to Answer in the Action upon which the Process went out and that was in this Case but an Action of Trespass and the adding the Ac etiam debiti c. is but to satisfie the late Act and for Direction to the Sheriff to what Value he shall require Bail And it was usual to Endorse the Cause of Action before the Statute upon the Latitats that the Sheriff might insist upon Bail accordingly So this is a material Variance from the Statute and not like some of these which are remembred in Beaufage's Case in the 10 Co. and Dyer 364. And to this the Court inclined And Hale Cited a Case between Button and Low adjudged Mich. 1649. An Attachment went out of Chancery to answer Coram nobis in Cancellaria ubicunque c. and the Sheriff took a Bond Conditioned to Appear Coram Rege in Cancellaria ubicunque c. apud Westmonasterium And for the addition of Westminster the Bond was held to be void Anonymus THe Court was moved for a Prohibition to the Archbishop's Court to stop their Proceedings in a Cause belonging to the Jurisdiction of Durham upon a Suggestion that the Dean and Chapter of Durham Sede vacante have Cognizance there as Guardians of the Spiritualties And the Court granted a Prohibition for the Right of Jurisdiction was tryed between the Archbishop and Dean and Chapter the last Term and found against the Archbishop and therefore he was concluded by the Verdict until the Record was reversed by Error or Attaint Thodie's Case THody and two others were Indicted for that Conspiratione inter eos habita they enticed J. S. to play and cheated him with False Dice Thody pleaded and was found Guilty the others not having pleaded It was moved that Judgment might not be Entred against him until the others came in for being laid by way of Conspiracy if the rest should chance to be acquitted no Judgment could be given against him And so is 14 H. 6. 25. Hale said If one be Acquitted in an Action of Conspiracy the other cannot be Guilty But where one is found Guilty and the other comes not in upon Process or if he dies hanging the Suit yet Judgment shall be upon the Verdict against the other And so is 18 E. 3. 1. and 24 E. 3. 34. Wild said The difference was where the Suit was upon Conspiracy wherein the Villanous Judgment was to be given and where the Conspiracy is laid only by way of Aggravation as in this Case Hale said It would be the same in an Action against two upon the Case for Conspiracy but not in such Actions where tho' there be a Charge of Conspiracy yet the Gift of the Action is upon another matter But the Court said They would give him two or three days for the bringing in of the other two and defer the Entry of the Judgment in the mean time Methyn versus the Hundred of Thistleworth THe Case was moved again by North Solicitor He urgrd for the Plaintiff That the Issue being Whether they took the Felon upon Fresh Suit It being not found that there was any actual Taking or that the Fresh Suit continued until Sir J. Ash found the Felon in the presence of Sir P. Warwick Also it was found that Sir J. Ash was a Justice of Peace and therefore it was his duty to Apprehend him To this it was Answered That the Statute of Winton upon which the Action is founded and not upon the 27 of Eliz. and therefore it is ill if it concludes contra formam Statutorum doth not say shall Take but shall Answer the Bodies of the Offenders which is Answer them to Justice And therefore if the Felon be taken upon another account and the Country finding him in Prison cause him to be Indicted this satisfies the Statute Goldsb 55. Again it was more decent for Sir John Ash being concerned as an Inhabitant of the Hundred to leave this Matter to the other Justice of the Peace for it has been known that Justices of the Peace have been Censured in the Star-Chamber for being too forward to interpose in their own business But if it were an omission of the Duty of his Office that could not be Objected to him as an Inhabitant having done enough to satisfie the Statute of Winton Wild said That the Defendant should have Demurred because the Issue is ill joyned viz. absque hoc that he took him super eadem recenti insecutione For if he were not immediately taken upon Fresh pursuit it were sufficient but the Verdict finding Fresh Suit was made it may be taken by Intendment which shall help out a Special Verdict that it was directed this way and continued until the finding of him in the presence of Sir P. Warwicke Et sic Judicium pro Def. Ante. Dacres versus Duncomb IN Trover after Imparlance the Defendant pleaded That the Plaintiff with two others brought Trover for the
a Hoyman Common Carrier or Inholder 'T is objected That the Master is but a Servant to the Owners Answer The Law takes notice of him as no more than a Servant 'T is known that he may impawn the Ship if occasion be and sell bona peritura 2 Cro. 330. Hob. 11. He is rather an Officer than a Servant In an Escape the Gaoler may be charged tho' the Sheriff is also liable for respondeat superior But the Turnkey cannot be sued for he is but a meer Servant By the Civil Law the Master or Owner is chargeable at the Election of the Merchant 'T is further objected That he receives Wages from the Owners Answer In effect the Merchant pays him for he pays the Owners fraight so that 't is but handed over by them to the Master if the Fraight be lost the Wages are lost too for the rule is Fraight is the mother of Wages Therefore tho' the Declaration is that the Master received Wages of the Merchant and the verdict is That the Owners pay it 't is no material variance Objection 'T is found that there were the usual number of Men to guard the Ship Answer True for the Ship but not with reference to the Goods for the number ought to be more or less as the Port is dangerous and the Goods of value 33 H. 6. 1. If Rebels break a Gaol so that the Prisoners escape the Gaoler is liable but it is otherwise of Enemies so the Master is not chargable where the Ship is spoiled by Pirates And if a Carrier be robbed by an Hundred men he is never the more excused Ante. Cox versus Mathews THe Case was moved again And Hale said that if a Man Builds a House upon his own ground he that hath the Contiguous ground may Build upon it also tho' he doth thereby stop the Lights of the other House for cujus est solum ejus est usque ad coelum Poph. 170. and this holds unless there be Custom to the contrary as in London But in an Action for stopping of his Light a Man need not declare of an antient House for if a Man should Build an House up-his own ground and then grant the House to A. and grants certain Lands adjoyning to B.B. could not Build to the stopping of A's Lights in that Case 1 Cro. Sands and Trefuses 415. But the Case at Bar is without question for he declares That the Defendant fixed Boards to the Windows of the Plaintiff's House Anonymus UPon a motion to set aside an Inquisition taken before the Coroner super visum corporis certified into this Court that J.S. killed himself and was Non compos mentis Hale said such an Inquisition that finds a Man Felo de se is Traversable but no Traverse can be taken to make a Man Felo de se but fugam fecit is never Traversable Clue versus Baily IN Replevin the Defendant made Conusans as Bailiff to J. S. who demised the place where under certain Rent c. The Plaintiff Traverses the Demise and concluded hoc paratus est verificare To which the Defendant demurred generally And the Court were in doubt whether this ill conclusion of the Plea were not helped upon a general Demurrer Hale It were well the Causes of Demurrer were always assigned Specially and not to say only incertum dubium caret forma c. The old way was when Pleadings were drawn at the Bar to make the exception immediately and the other Party might mend if he pleased or might Demurr if he durst venture it And tho' now they are put in Paper yet such a Course should be observed for Demurrers were not designed to catch Men This not concluding to the Country seems to be but matter of Form and the Demurrer should have been quia non bene concludit Here the Defendant pleads that J. S. demised the Land for Life and without expressing the place of the Demise because of necessity it must be upon the Land Blake versus .... ERror of a Judgment in Replevin in the Mannor Court of Hexam in Northumberland where the Defendant avowed for Damage fesant The Plaintiff replied that J. S. was seized of the Mannor of Tallowfield in D. and that time out of mind he had Common c. in the place where and shewed himself to be Tenant and justified the putting in of his Beasts for Common and the Prescription being traversed it was found for the Avowant The Errors assigned were First In the Venire which was quia nec the Plaintiff nec Defendant aliqua affinitate attingunt instead of qui nec Hale said it was aided by the Statute of 8 H. 6. that helps Error in Process But Twisden said that Statute did not extend to inferiour Courts Another Error insisted on was that the Avowant did not shew that the Mannor of Tallowfield was infra Jurisdictionem Curiae But the Venire was extra vill ' Manerium de Tallowfield infra Jurisdictionem Curiae But the Court held that that was not sufficient to intimate that it was within the Jurisdiction but must have been shewn in pleading And Hale said seeing the Plaintiff had omitted to do it the Avowant might in his Rejoynder have alledged Tallowfield to have béen within the Jurisdiction as where one pleads a Plea without a place the other is not bound to Demurr but for his expedition may shew the place in his Replication Then VVild said this seems to be aided by the Statute of 21 Jac. which Enacteth That if the Jury comes out of any one of the places it sufficeth and here the Jury came as well out of the Vill where the Beasts were taken shewn to be within the Jurisdiction as the Mannor of Tallowfield Hale That will not serve in this Case for the Court could not Award a Venire to a place out of the Jurisdiction nor Jurors could not be returned out of such a place to try a Cause there Another Error assigned was that the Award of the Venire was praeceptum est per seneschallum and not said in eadem Curia To which it was answered That being on the same day upon which the Court was said to be held it must be intended so VVild held the Judgment ought to be reversed for the last Cause Twisden Principally for the first for he held that the Statute of the 8 H. 6. Aided not Process in inferiour Courts therefore where in the Award of the Venire it has been per quos rei veritas melius Scire poterit instead of Sciri the Judgment has been reversed Hale said that it ought to be Sciri for so it is in the Register and in the Statute of Eliz. that sets the Estate of Jurors at 4 l per ann But for the second Error he held that the Judgment ought to be reversed Whaley versus Tancred TRin. 23 Car. 2. Rot. 1513. In an Ejectment the Case was this Lessee for years makes a Feoffment and levies a Fine
Discretion tion of the Court to grant Restitution even after a Traverse put in yet now since the Statute of Eliz. where such Plea is tendred the Court cannot grant a Restitution tho' they would in this Case if by Law they might for the party that made this Entry had lost the Land just before by Verdict in an Ejectment and by this means the effect of it should be disappointed Note The Indictment wanted Vi armis for it was pacifice intravit sine Judicio disseisivit à possessione expulit amovit But on the other side it was said First That the Entry being pacifice it was not the course to lay it Vi armis Secondly That 37 H. 8. cap. 8. supplied the defect of Vi armis in an Indictment But as to the latter the Court were of Opinion that the Statute supplied only the lack of the words gladiis baculis cultellis as are mentioned in the Statute Vid. the Stat. Anonymus A Suit for a Pension may be in Ecclesiastical Court tho' by Prescription but if it be denied to be time out of mind then a Prohibition is to go so that the Prescription may be tried at Law as in a Modus decimandi mutatis mutandis It was said by the Court that two might joyn in a Prohibition tho' the Gravamen was several but they must sever in their Declarations upon the Attachment Termino Sancti Hillarij Anno 26 27 Car. II. In Banco Regis Anonymus IN Error the Writ was Teste the 30th of November last and Retornable in Parliament the 13th of April next the Day to which the Parliament was Prorogued The Defendants Counsel desired the Rule of the Court for the taking out of Execution supposing this Writ of Error was no Supersedeas and alledged that the late Rule made in the House of Lords did not extend to their Case for that was That all Causes there depending should not be discontinued by the intervening of a Prorogation but this Case will not be there depending before the Return of the Writ In 3 H. 7. 19. the Court of Kings-Bench would not allow a Writ of Error into the Parliament until some Error was shewn to them in the Record lest it should be brought on purpose to delay Execution In Bulstrode's Reports a Writ of Error Returnable the second Return of the Term was held to be no Supersedeas because it seemed an affected delay that it was not made Returnable the first Return Hale It has been taken that a Prorogation determined a Cause depending in Parliament by a Writ of Error but the Lords have lately Declared otherwise But that comes not to this Case the Writ not being Returned A Writ of Error Returnable ad proximum Parliamentum is not good but otherwise if they are summoned or prorogued to a Day certain If the Day of the Session had been a Year hence it would be hard a Writ of Error should stay Execution and the same Reason where the whole Term intervenes A Writ of Error did bear Teste 10 Nov. and was Returnable 1 Nov. proximè futur ' and the Record was sent into the Exchequer Chambet and a Mittimus Endorsed upon the Roll here And it was Resolved that Execution might be taken out because of the long Return Secondly That tho' there were Mittimus upon the Roll yet the Record remained here until the Return of the Writ to all purposes And the Opinion of the Court was that the Writ of Error was no Supersedeas But they would make no Rule in it because they said it was not Iudicially before them but the party might take out Execution if he thought fit And then if the other Side moved for a Supersedeas they should then Resolve the Point Note Hale said in an Assumpsit for Money upon the Sale of Goods upon non Assumpsit the Defendant might give in Evidence an Eviction of the Goods to mitigate the Damage and in all Assumpsits tho' upon certain Contracts the Jury may give less Damages than the Debt amounts unto as he said was done in a Case where a man promised to give a Straw for every Nail in every Horses Shoe doubling every time and they gave in Damage but the Value of the Horse tho' as the Bargain was made it would have come to above 100 l Lomax versus Armorer A Writ of Error was brought to Reverse a Judgment in Dower given in the Court of Newcastle The Error assigned was because the Proceeding was by Plaint and no Special Custom certified to maintain it As in London and Oxford they have Assizes of Fresh Force by Plaint The Court held it to be Erroneous for this Cause but would not determine whether it might not be good upon a Special Custom 1 Rolls 793. Pl. 11. Anonymus A Mandamus was granted to the Archdeacon of Norwich to Swear a Churchwarden upon surmize of a Custom That the Parishioners are to choose the Churchwardens and that the Archdeacon refused him notwithstanding that he was Elected according to the Custom The Archdeacon Return'd that non sibi constat that there is any such Custom which Form is not allowable for it ought to be positive whereupon an Action might be grounded and that by the Canon the Parson is to choose one c. The Court said that Custom would prevail against the Canon and a Churchwarden is a Lay Officer and his Power enlarged by sundry Acts of Parliament and that it has been Resolved that he may Execute his Office before he is Sworn tho' it is convenient he should be Sworn and if the Plaintiff here were Sworn by a Mandate from this Court they advised him to take heed of disturbing him Noy Rep. 139. Anonymus AN Assumpsit was brought against an Executor for that the Testator being Indebted to the Plaintiff he did ad requisitionem of the Defendant come to Account with him upon which there appeared to be so much due to the Plaintiff which he promised to pay After Verdict the Judgment was de bonis propriis and it was moved that it ought to have been de bonis testatoris For the Accounting with him is little more than telling him what is due and this might make an Executor afraid of Reckoning with any of his Testators Creditors The Court said that the Accounting upon the Defendants Request which was more than the Plaintiff was bound to have done was a Consideration and after a Verdict they must intend an express Promise But Hale said If upon the Evidence it had appeared that there was no Intention to alter the Nature of the Debt as in case an Executor should say stay a while until the Testators Estate was come in and I will pay you he should direct the Jury to find against the Plaintiff that would in such case charge an Executor in his own Right Termino Paschae Anno 27 Car. II. In Banco Regis NOte In an Indebitat ' Assumpsit a man Promises in Consideration that
taken strictly and here upon the first Fine the Earl of Leicester had no Estate left in him Mich. 6 Car. 1. in Communi Banco the Case of Ingram and Parker which tho' it may not be a clear Authority for me yet I am sure it does not make against me The Case was Catesby levied a Fine to the use of himself in Tail with Remainders over reserving a Power to himself and his Son to Revoke by Deed c. as in our Case and his Son after his decease by Deed intended to be Enrolled conveyed to one and his Heirs and after levied a Fine and it was held no Revocation First Because he having an Estate Tail in him the Deed might operate upon his Interest Secondly Because it was but an inchoation of a Conveyance and not perfected and they held it no Revocation and that the Fine levied after tho' intended to be to the Vses of the Deed yet should extinguish the Power Hale Chief Justice Vpon the close and nice putting of the Case this may seem to be no Revocation for 't is clear that neither the Deed nor Fine by it self can revoke but quae non valent singula juncta prosunt The Case of Kibbett and Lee in Hob. 312. treads close upon this Case where the Power was to Revoke by Writing under his Hand and Seal and delivered in the presence of three Witnesses and that then and from thenceforth the Uses should cease It was there Resolved that a Devise of the Lands by Will with all the Circumstances limited in the Power should Revoke yet the Delivery was one of the Circumstances and the Uses were to cease then and from thenceforth Whereas a Will which could have not effect while his Death did strongly import that the meaning was to do it by Deed and yet there the Will alone could be no Revocation for clearly he might have made another Will after and so required other Matter viz. his Death to compleat it And in that Case there is another put That if a Deed of Revocation had been made and the party had declared it should not take place until 100 l paid there the operation of it would have been in suspence until the 100 l paid and then it would have been sufficient yet there it had been done by several Acts and of several Natures the Intention in things of this nature mainly governs the Construction In Terries Case it was Ruled That if A. makes a Lease for years to B. and then Levies a Fine to him to the end that he might be Tenant to the Praecipe for the suffering of a Recovery that after the Recovery suffered his Lease should revive 'T is true in the Case at Bar if the Fine had been levied first and then the Deed of Uses made afterwards the Power had been extinguished by the Fine and so no Revocation of that which had no being could have been by the Deed. Twisden What if before the Fine levied the Intent had been declared to that purpose Hale I doubt whether that would have helped it I cannot submit to the Opinion in Parker and Ingrams Case cited viz. That the Deed not being Enrolled should make no Revocation For in case of a Power to make Leases for life it has been always held by the best Advice that the better way is to do it by Deed without Livery tho' Livery by the Common Law is incident to a Lease for life and so Adjudged in Rogers's Case for Lands in Blandford forum in Moor's Rep. where Tenant for life hath power to make Leases for life and makes a Lease by Livery 't is there held a Forfeiture tho' I conceived not because by the Deed the Lease takes effect and so the Livery comes too late Therefore the omission of Enrolling the Deed in that case does not seem to be material but if that Opinion be to be maintained it is because the party had such an Interest upon which the Deed might enure without Execution of his Power and so rather construed to work upon his Interest But that Reason does not satisfie because such an Estate as was intended to be conveyed could not be derived out of his Interest therefore it should take effect by his Power according to Clere's Case in the 6 Co. So by the whole Court here the Deed and Fine taken together were Resolved to be a good Execution of the Power and Judgment given accordingly Richardson versus Disborow A Prohibition was prayed to the Ecclesiastical Court where the Suit was for a Legacy and the Defendant pleaded That there was nothing remaining in his hands to pay it and that he had fully Administred And producing but one Witness to prove it Sentence was given against him and after he Appealed and because their Court gave no regard to a single Testimony he prays a Prohibition But it was urged on the other Side That it being a Matter within their Cognizance they might follow the Course of their own Law And tho' there are diversities of Opinions in the Books about this Matter yet since 8 Car. 1. Prohibitions have been been denied upon such a Surmize Hale Where the Matter to be proved which falls in incidently in a Cause before them is Temporal they ought not to deny such Proof as our Law allows and it would be a great Mischief to Executors if they should be forced to take two Witnesses for the payment of every petit Sum And if they should after their Death there would be the same Inconvenience In Yelv. 92. a Prohibition was granted upon the not admitting of One Witness to prove the Revocation of a Will Which is a stronger Case because that entirely is of Ecclesiastical Cognizance Wherefore let there go a Prohibition and let the party if he please Demur upon the Declaration upon the Attachment Hob. 188. 1 Cro. 88. Popham 59. Latch 117. Pigot versus Bridge IN Debt upon a Bond Conditioned for performance of Covenants and the Breach assigned was in the not quietly enjoying the Land demised unto him The Defendant pleads that the Lease was made to hold from Michaelmas 1661 to Michaelmas 1668 and that paying so much Rent Half yearly he was to Enjoy quietly and shews that he did not pay the last half years Rent ending at Michaelmas 1668. To which the Plaintiff Demurred supposing that the words being to Michaelmas 1668. there was not an entire Half year the Day being to be excluded and that it was so held in the Case of Umble and Fisher in the 1 Cro. 702. Cur ' contra 'T is true in pleading usque tale Festum will exclude that Day but in case of a Reservation the Construction is to be governed by the Intent Anonymus NOte per Hale Debt doth not lye against the Executor of an Executor upon a Surmize of a Devastavit by the first Executor For First 'T is a Personal Tort for which his Executor cannot be charged Secondly 'T is such an Action of Debt as would
it will be agreed he might have released it or by cutting of the Wood might have taken away all the right of Action Again it does not appear by the Record that the Defendant was here and so no benefit by the forbearing to cut the Wood. Rookwoods Case cited on the other side 1 Cro. 163. 1 Leonard 192. is that the Promise was made to the younger Brothers and the Consideration that they would consent but here the Plaintiff who was to have the Money had no share in the Consideration or Meritorious Act as where the Father promises J. S. if his Son will Marry his Daughter he will give him 1000 l the Son may bring the Action because the Consideration moves from him Hetlys Rep. 20. the Case was to this effect A Man promises a Woman whom he was to Marry upon a certain Consideration that if he had a Son by her he should have a Term whereof the Woman was then possessed and if it were a Daughter she should have the Moiety of the Goods c. they Intermarry and after the death of the Husband the Daughter born between them brings an Action against the Executor of the Husband and resolved that it would not lie tho' they did not think the Agreement made with the Wife to be discharged by the Intermarriage but only suspended which is a Quaere in my Lord Hobart Yet the Daughter being no Party to the Promise or to the Consideration could not bring an Action The Case of Norris and Pine before cited is stronger for there he that made the Promise had a benefit for it was in Consideration of Marriage On the other side it was said that tho' it doth not appear that the Defendant was Heir yet it may be intended after Verdict however 't is not nudum pactum for if the Defendant had no benefit yet there was a restraint upon the other and that is Consideration enough And for the objection of releasing that holds where J. S. promises J.N. if his Son will Marry his Daughter he will pay him 1000 l J.N. may Release but 't is doubtful whether he can after Marriage because then 't is vested in the Son as Scroggs Chief Justice said 1 Roll. 31. The Uncle of an Infant delivered J.S. 12 l who promised to pay the Infant when he came of Age and the Action was well brought by him after his Age. So Goods sold to A. to pay 10 l to B. B. may Sue Vid. 1. Roll. 32 Starkey and Mills The Court said it might be another Case if the Money had béen to have been paid to a Stranger but there is such a nearness of Relation between the Father and Child and 't is a kind of Debt to the Child to be provided for that the Plaintiff is plainly concerned And so by the Opinion of them all viz. Scroggs Wild Jones and Dolben Judicium pro Querente Ante. Anonymus A Prohibition was prayed to the Sheriffs Court of London for that an Action was there Commenced to which the Defendant pleaded That the cause of Action did not arise within the Jurisdiction and offered to swear his Plea but it was refused The Counsel for the Plaintiff objected against the Prohibition that the Plea came too late for it was after an Imparlance But it being proved by Affidavit that the Plea was tendred within two days after the Declaration was delivered and that immediately upon delivering the Declaration there is an Imparlance of course The Court granted the Prohibition and said that the other side might Demurr if they thought fit for the liberty of the Subject was infringed by bringing him within a private Jurisdiction when the Matter arises out of it and Attorney's in such places are sworn to advise no Plea to the Jurisdiction nor that none shall be put in by them And whereas 't was said that the Party had not prejudice for he might remove his Case by Habeas Corpus The that the Court answered coming by Habeas Corpus Bail must be put in above tho' the Cause otherwise did not require it Note It appeared here that there was no defence made in this to the Jurisdiction and Co. Inst was quoted that defence should be made tho' not full defence But the Court said it was not necessary and that Presidents were otherwise especially where the Court have no Jurisdiction of the matter otherwise where not of the person James versus Richardson IN Ejectment the Case upon a Special Verdict was thus A. devised the Lands to B. and his Heirs during the Life of J. S. and after to the Heirs of the Body of R. D. now living and to such other Heirs was should after be Born the Devisee for Life levied a Fine in the Life of him to whose Heirs the Remainder was limited but he had a Son at the time of the death of the Testator The question was Whether it was a Contingent Remainder the consequence whereof was to be destroyed by the Fine and that it was vested in the Son Scroggs Chief Justice Wild and Jones held it a Remainder vested by reason of the words now living which was a sufficient Designation of the person that was to take in a Will tho' improper to call him Heir But Dolben Contra for by this Construction the Heirs Born after are excluded and the Son would take but an Estate for Life tho' it were devised to the Heirs in the Plural Number Note Vpon a Writ of Error in the Exchequer Chamber this Iudgment was reversed Hillary 31 32. Car. 2. Termino Paschae Anno 31 Car. II. In Banco Regis A Mandamus was prayed to the Ecclesiastical Court to grant the Probat of a Will under Seal c. The Case was the Executor named in the Will had taken the usual Oath but after a Caveat entred and then Refused and another endeavoured to obtain Letters of Administration the Executor came after to desire the Will under Probat and contested the granting of Administration Which was Adjudged against him supposing that he was bound by his Refusal And after an Appeal to the Delegates this Mandamus was prayed and granted by the Court for having taken the Oath he could not be admitted to Refuse and the Ecclesiastical Court had no further Authority and the Caveat did not alter the Case Note The Oath was taken before a Surrogate yet it was all one Anonymus A Prohibition was prayed to a Suit for Tythes upon the Suggestion that the Lands out of which they were demanded say out of the Parish and the Bounds of Parishes are tryable at the Common Law But the Court denied the Prohibition because it did not appear that a Plea thereof had been offered in the Ecclesiastical Court Anonymus A Prohibition was prayed to stay a Suit against J. S. Lessee of a Rectory out of which a Pension was demanded It was suggested that the Lord Biron had three parts in four of this Rectory upon which the Pension was chargeable and that
upon the Warranty as well as the other tho' the Declaration saith knowing them to be naught yet the knowledge need not to be proved in Evidence Debt upon a Bond and a mutuatus may be joyned in one Action yet there must be several Pleas for Nil debet which is proper to the one will not serve in the Action upon the Bond. Sed Adjornatur Termino Sancti Hillarij Anno 34 35 Car. II. In Banco Regis Anonymus A Quo Warranto was brought against divers persons of the City of Worcester why they claimed to be Aldermen c. of the said Corporation The Cause came to be tried at the Bar and a Challenge was made to the Jury in behalf of the Defendants for that the Jury men were not Freeholders The Court said that for Juries within Corporate Towns it hath hath been held that the Statutes that have been made requiring that Jurymen should have so much Freehold do not extend to such places for if so there might be a failer of Justice for want of such Jurymen so qualified but then to maintain the Challenge it was said by the Common Law Jurymen were to be Freeholders But the Court overruled the Challenge but at the importunity of the Counsel they allowed a Bill of Exceptions and so a Verdict passed against the Defendants and afterwards it was moved in Arrest of Judgment upon the Point But the Court would not admit the Matter to be Debated before them tho' divers Presidents of like nature were offered because they said they had declared their Opinions before and the Redress might be upon a Writ of Error Termino Sanctae Trinitatis Anno 35 Car. II. In Banco Regis Anonymus A Motion for a Prohibition to a Suit in the Ecclesiastical Court for a Churchwarden's Rate suggesting that they had pleaded That it was not made with the Consent of the Parishioners and that the Plea was refused The Court said That the Churchwardens if the Parish were Summoned and refused to meet or make a Rate might make one alone for the Repairs of the Church if needful because that if the Repairs were neglected the Churchwardens were to be Cited and not the Parishioners and a Day was given to shew Cause why there should not go to a Prohibition Termino Sancti Michaelis Anno 35 Car. II. In Banco Regis Gamage's Case ERror out of the Court of the Grand Sessions where in an Ejectment the Case was upon Special Verdict upon the Will of one Gamage who devised his Lands in A. to his Wife for Life Item his Lands in B. to his Wife for Life and also his Lands which he purchased of C. to his Wife for Life and after the decease of his Wife he gave the said Lands to one of his Sons and his Heirs And the Question was Whether the Son should have all the Lands devised to the Wife or only those last mentioned And it was Adjudged in the Grand Sessions that all should pass And upon Error brought it was Argued that they were Devises to the Wife in distinct and separate Sentences and therefore his said Lands should be referred only to the last On the other side it was said that the word Said should not be referred to the last Antecedent but to all If a man conveys Land to A. for Life Remainder to B. in Tail Remainder to C. in forma praedict ' the Gift to C. is void 1 Inst 20. b. It is agreed if he said All the said Lands to his Son and his heirs it would have extended to the whole This is the same because Indefinitum equipollet universali Et Adjornatur Herring versus Brown IN an Ejectment upon a Special Verdict the Case was Tenant for Life with several Remainders over with a Power of Revocation Levied a Fine and then by a Deed found to be Sealed ten Days after declared the Vses of the Fine which Deed had the Circumstances required by the Power The Question in the Case was Whether the Fine had extinguished the Power It was Argued that it had not because the Deed and Fine shall be but one Conveyance and the use of a Fine or Recovery may be declared by a subsequent Deed in the 9 Co. Downam's Case And a Case was Cited which was in this Court in my Lord Hale's time between Garrett and Wilson where Tenant for Life with Remainders over had a Power of Revocation and by a Deed under his Hand and Seal Covenanted to levy a Fine and declared it should be to certain Vses and afterwards the Fine was Levied accordingly This was held to be a good execution of the Power and limitation of the new Vses and the Deed and Fine taken as one On the other side it was Argued That the Deed was but an Evidence to what Vses the Fine was intended and the Power was absolutely revoked by the Fine Suppose he in Remainder had Entred for the Forfeiture before this Deed should the Defendant have defeated his Right Et Adjornatur Postea Hodson versus Cooke IN an Action upon the Case for commencing of an Action against him in an Inferiour Court where the Cause of Action did arise out of the Jurisdiction After a Verdict for the Plaintiff upon Not Guilty it was moved in Arrest of Judgment That it was not set forth that the Defendant did know that the Place where the Action arose was out of the Jurisdiction which it would be hard to put the Plaintiff to take notice of On the other side it was said that the party ought to have a Recompence for the Inconvenience he is put to by being put to Bail perhaps in a Case where Bail is not required above and such like Disadvantages which are not in a Suit brought here and the Plaintiff ought at his peril to take notice However to help by the Verdict And of that Opinion were Jeffreys Lord Chief Justice Holloway and Walcot but Withens contra The Court said that it could not be assigned for Error in Fact that the Cause arose out of the Jurisdiction because that is contrary to the Allegation of the Record neither is the Officer punishable that executes Process in such Action but an Action lies against the party And so it was said to be resolved in a Case between Cowper and Cowper Pasch 18 Car. 2. in Scac. when my Lord Chief Baron Hale sate there Anonymus AN Indictment of Perjury for Swearing before a Justice of the Peace that J. S. was present at a Conventicle or Meeting for Religious Worship c. It was moved to quash it because it did not appear to be a Conventicle viz. That there was above the number of Five and so the Justice of the Peace had no power to take an Oath concerning it and then it could be no Perjury To which the Lord Chief Justice said That Conventicles were unlawful by the Common Law and the Justices may punish Unlawful Assemblies And he seemed to be of Opinion that a man might be
feeds to their damage it will be a Surcharge and an Action upon the Case will lie against him The Lord cannot improve but he must leave them sufficent and there can be no reason why the Owner should not have the Surplusage if any be I know they will cite an Authority against me in the Case between Webb and Littleburgh which was in C. B. 1654. There I confess the Declaration was grounded upon a Prescription much like to this and the Plaintiff had a Verdict and the Court would not arrest Iudgment upon it The Answer that I must give to that Case is grounded upon the difference between a Demurrer and a Verdict The Court may intend that after a Verdict which may help it for I allow an exclusion of the Lord upon a Special Case disclosed in pleading and that Special Matter may be supplied by the Verdict Besides I must observe that it was a Case of small consequence that concerned the Lord only for his Costs for he hath enjoyed his feeding against that Verdict ever since I can say it upon my own knowledge for I know the Parties and know the Place it was at Elinswell near Bury St. Edmonds in Suffolk The Iudges listen to Exceptions after a Verdict but will give Judgment if there be any possibility to maintain it I may add that this was a Popular Times when all things tended to the licentiousness of the Common People I shall Conclude praying Judgment against this Prescription for these Reasons It is a new and unheard of way of Pleading and against the Rule of Law joyning Freehold Tenants in the generalty which have no relation one to another and annexing an entire Interest to several Estates and mixing Prescription and Custom which are of contrary Natures and are great Absurdities It is against Reason to oust the Owner of all the feeding which for ought appears is all the Profits without any Special Matter or Recompence appearing in Pleading There is great inconvenience in admitting of such a Prescription new Inventions bringing unknown Consequences No inconvenience in ousting Tenants of this Prescription seeing that they claim the same Usage the ordinary way and the Lord can do them no wrong either by feeding or improvement In this Case the Court of Common-Pleas had been divided in Opinion upon the Matter in Law as appears by Vaughans Reports and therefore Sir Henry North thought not fit to wave the Matter of Law in the Kings-Bench altho' he had so good a Case upon the Fact that if it had been no prejudice he would joyn Issue and try the truth of this Prescription at the Bar whereupon the Demurrer was by consent waved and the Cause tried at the Bar and the Verdict passed for Sir Henry North with the approbation of the whole Court Afterwards another Action was brought to trial in the Exchequer at the Bar and it appearing to the Court that there had been Proposals towards an Agreement a Juror was withdrawn and my Lord Chief Baron Hale gave the Tenants advice to comply with this saying Redime te captum quam queas minimo So that the Matter of Law was never adjudged against Sir Henry North but the Matter of Fact tried for him and the main Question upon the Act of Level never came in Question which may extend to this great Waste altho' both the other Points were against Sir Henry North. Afterwards there was another Action brought to trial in the Exchequer and after a full evidence of about 4 or 5 hours the Plaintiff not daring to stand the Verdict was nonsuited THE CASE OF Sir Robert Atkyns AGAINST HOLFORD CLARE Under-sheriff of the County of Gloucester TERMINO Sancti Hillarij Anno 22 23 Car. II. In Scaccario AN Action upon the Case was brought by the Plaintiff Vid. Co. Entr. 439. a Quo Warranto brought for these Hundreds setting forth That he was seised of the Seven Hundreds of Crochon Bright Reppesgate Bradley c. in the County of Gloucester and had Return and Execution of Writs there That the Defendant knowing of it did Execute several Writs there to the Plaintiffs damage c. Vpon Not Guilty pleaded Issue is taken and this Special Verdict is found viz. They find the Patent of 11 May 5 Johannis whereby the King restores to the Abbot and Convent of Canons Regular in Cirencester certain Lands granted to them by his Brother Richard the First and also grants That no Sheriff of Gloucester or his Bayliff do intromit in aliquo within the Seven Hundreds except for Pleas of the Crown and Summons which the Abbot c. should receive from the hands of the Sheriffs and execute They find the Patent of 20 Decembris 17 E. 3. wherein the King reciting that Richard the First by Patent granted to this Abbot and Convent the Mannor of Cirencester and the Seven Hundreds and the Return of Writs in them that thereby they had used and enjoyed Retorna Brevium tanquam pertinentia ad Septem Hundred ' praedict ' Reciting also that by a Presentment made it was seised into the Chancery and that He Edward the Third for a Fine of 300 l grants that they should hold the Mannor Hundreds Vills c. quod haberent in Villis Hundredis praedictis c. absque impedimento retorna Brevium Infangthief c. tanquam pertinent ' Hundredis praedictis c. of the King and his Successors c. and confirms the Patent of King John They find that the Abbot c. were seised prout Lex postulat till 4 Febr. 27 H. 8. when the Monastery was dissolved and all came to the Crown They find the Statute for vesting of these Lands c. belonging to the Monastery in the King and the Statute of 32 H. 8. cap. 20. whereby it is Enacted That all Liberties c. which the late Owners of Monasteries had used c. shall be revived and be really and actually in the King his Heirs c. and shall be in the Rule Order Survey and Governance of the Court of Augmentations and that the same Liberties c. shall be used and exercised by such Stewards Bayliffs c. as the King his Heirs c. shall name and appoint c. and that the said Stewards Bayliffs c. shall be attendant and obedient to all the King's Courts for all Returns of Writs c. as the Officers of the late Owners should have been c. and that no Sheriff Under-Sheriff c. should intromit meddle in with or upon the Premisses otherwise or for other cause than they lawfully might have done before the same Premisses came to the possession of the King They find that Edward the Sixth being seised by descent from Henry the Eight Anno primo of his Reign per Lit ' Patent ' ex gratia advisamento Concilii sui dedit concessit cuidam Tho. Seymour Mil ' Dom ' Seymour de Sudley omnia illa Hundreda de Crochen c. nuper Monasterio
Verdict is ill found for 't is concessit c. Dom ' Seymour c. but not found what Estate and here is a breaking off in the middle of which we cannot tell what to make Now when the King Grants and expresses no Estate some Books have held the Grant to be void but the better Opinion is that it creates an Estate at will 5 E. 4. 8. the last Leaf B. Pl. 1. but 17 E. 3. 45. Pl. 46. is express in it Davis 45 45. and so it was adjudged Paschae 8. Jacobi in Petsall's Case Why then the consequence will be that by the Attainder the Will was determined and then the King was in of his Old Reversion and then the Statute of 32 H. 8. served well to preserve the Liberty in the same Estate still But if the Grant were in Fee then the King came in by a New Title viz. the Attainder and then there is no benefit of the said Statute so that this Error in the Verdict is most to the disadvantage of the Party the Defendant who would not amend it for there was a Proposal and Discourse of amending and some things were amended but the amending of this Mistake would not be consented to by the Defendant But to suppose this to be a Grant in Fee I say still it stood of it self a Liberty without the Statute and so when it returned to the Crown by Attainder it stood not in need of any such Statute it was Substantive and not melted down in a General Confusion into the Form whence it was derived Fifthly Come we now to the Grant to Kingston It has many Clauses in it I will insist upon two 1. The King Grants Omnia Amerciamenta c. with large words Cognita Reputata Acceptata c. I did say that the Grant of E. 3. made an annexation of this Liberty of Ret ' Brev. to the Hundreds and if we should admit that it were not sufficient to create an appurtenancy in reputation and if it were no more than so these words would lay hold on it 2. The other Clause I will rest upon thereby the King grants tot talia tanta c. as any c. had ratione vel praetextu Hundred ' praedict ' virtute praetextu vel colore alicujus Doni Chartae c. Now certainly the latter words are subservient and ancillary and the ratione vel praetextu Hundredi governs all for it is but one entire Sentence like Finches Case 6 Co. 39. This praetextu is a very large Clause and much more than tot talia tanta wherefore I conclude that it is a good and sufficient Grant of the thing in Question Three Objections have been made to which I shall endeavour to give Answers Object 1. By the coming to the Crown the Liberty is merged Answ 1. It is not 2. Admit it were merged thereby yet that is not till the dissolution Why now in this last Grant there is a Retrospect and it is with a leaping over to the Seisin which the Abbot had and therefore the Grant of the King conjoyning it to the possession of the Abbot the Liberty is effectually revived and erected in the same manner and condition as it was before the uniting of it to the Crown Object 2. If this Liberty be to be revived yet 't is not revivable without Special Words in the Grant to Seymour there are the words Retorna Brevium but in the Grant to Kingston not Answ Tot talia c. does it and 't is as much as if all had been particularly recited because it refers to a thing determinate 'T is true if there were an Act of Resumption as in Pager and Darcy's Case or if the thing were meerly Personal as in the Abbot of Walthams Case the priviledge for his Dogs in the Forrest such General Words will not revive and pass the things because of the ratio privata which intervenes but if there be nothing in the Case which hinders more than the generality of the words 't is clear the words do it no Case can be fuller than Amerediths Case is in this point 9 Co. 29. B. 30. in the Case of Coleharborow above-mentioned The Ret ' Brev ' c. came to the Crown by Act of Parliament The King Ed. 6. grants to Francis Earl of Shrewsbury the House quod habeat tot talia c. specially reciting many Priviledges Liberties c. but not mentioning Returna Brevium and concludes alia c. and it was adjudged that this Grant in these general words did revive Returna Brev ' for I have a Report of the Case but only for the Cause above-mentioned Iudgment was given against the Earl as to the thing This Verdict is ill found the effectual Statute which should aid this Case if there were need is 1 Ed. 6. c. 8. which is not found thereby it is Enacted That all Letters Patents c. made or to be made by the King of any Honours c. Franchises Liberties c. should be good sure c. notwithstanding any misnaming misrecital or nonrecital of the Premisses or the lack of the true naming of the Natures Kinds Sorts and Qualities of them or any parcel thereof and notwithstanding divers and sundry other suggestions and surmises c. Object 3. The Patent of Ed. 3. or at least this Patent made to Kingston is void by reason of the Statute 2 Ed. 3. c. 12. and likewise 14 Ed. 3. c. 9. whereby it is Ordained That henceforth the Hundreds and Wapentakes should not be given nor severed from the Counties Answ This indeed is the grand Objection and was materially objected by my Brother Littleton and the Case of Fortescue against my Lord Coke has been truly cited to this purpose which was in this Court and is reported by himself How shall we do now in this great difficulty Truly this Objection had need be strictly examined into for it runs to the avoiding of the Grants of 100 Hundreds and more which have been granted since 2 E. 3. I do conceive this Grant of Ed. 3. is not within the Statute for though it be a New Grant of Ret ' Brev ' yet t is no New Grant of the Hundreds neither is the Grant of Ed. 6. avoided hereby For 1. This Statute extends only to those Hundreds which were parcel of the Sheriffs Farm and not to those which were divided because as to the first only there was an inconvenience to the Sheriff in that he should be charged with the Farm of the County the Sheriffs Farm and yet the profits the Firma Ballivarum be taken from him The words of the Statute are That such Hundreds viz. as were annexed to the Farms of the Counties shall not be given nor severed from the Counties neither did these Hundreds come into the Sheriff by their coming to the Crown The Sheriffs Farm was modelled and setled long before and when these Hundreds came to H. 8. they were not part of
Heir in England or to have one My third and last Reason is indeed more general tho' not so conclusive as the two former were upon the particular Reason of the Case tho' not altogether to be neglected viz. The Law of England which is the only ground and must be the only measure of the incapacity of an Alien and of those consequential results that arise from it hath been always very gentle in the construction of the disability and rather contracting than extending it so severely For Instance The Statute de natis ultra Mare 25 E. 3. declares that the Issue born beyond Sea of an English Man upon an English Woman shall be a Denizen yet the construction hath been tho' an English Merchant marries a Foreigner and hath Issue by her beyond the Sea that Issue is a natural born Subject In 16 Cro. Car. in the Dutchy Bacons Case per omnes Justic ' Angl ' And accordingly it hath been more than once Resolved in my Remembrance Pround's Case of Rent The Case of the Postnati commonly called Calvin's Case the Report is grounded upon this gentle Interpretation of the Law tho' there were very witty Reasons urged to the contrary and surely if ever there were reason for a gentle Construction even in the Case in question it concerns us to be guided by such an Interpretation since the Vnion of the two Kingdoms by which many perthance very Considerable and Noble Families of a Scottish Extract may be concerned in the consequence of this Question both in England and Ireland that enjoy their Inheritances in peace I spare to mention particulars So far therefore as the parallel Cases of Attainder warrant this extent of this Ability I shall not dispute but further than that I dare not extend Now as touching the Authorities that favour my Opinion I shall not mention them because they have been fully Repeated and the later Authorities in this very Case are not in my Iudgment to be neglected Touching the Case of Godfrey and Dixon it is true it doth differ from the Case in question and in that the Father was made a Denizen and then had Issue a younger Son who inherited the elder Son an Alien born but Naturalized after the death of his Father yet there is to be observed in that Case either the Naturalization of the elder Son relates to his Birth or relates only to the Time of his Naturalization whether it did relate or not depends upon the words of the Act of Naturalization which I have not seen If it did relate the Cause in effect will be no more but an Alien hath Issue a Natural born Son for so he is as I have Argued by his Naturalization and then is made a Denizen and hath Issue and dies the elder Son purchaseth Lands and dies without Issue the younger Son shall inherit the elder should not have inherited his Father by reason of the Incapacity of the Father But it doth not relate further than the Time of his Naturalization which was after the time of the Death of his Father and consequently he could not divest the Heirship of his younger Brother yet if he purchaseth and dies without Issue his younger Brother shall inherit him tho' there was never Inheritable Blood between the elder Son and his Father so much as in fiction or relation Vpon the whole Case I conclude First That there be two Brochers Natural born in England the Sons of an Alien the one shall inherit the other Secondly That the Naturalization puts them in the same Condition as if born here tho' it does not more Thirdly That John the Son of George stands in the same Condition of inheriting his Vncle the Earl as George should have done had he survived the Earl Fourthly But if the Disability of Robert the Father had disabled the Brothers to have inherited one the other the Naturalization of the Earl or George had not removed that Disability Fifthly But no such Disability of the Father doth disable the Brother George to inherit the Earl it neither doth Consequentially disable John the Son of George to inherit the Earl Consequently as to the Point referred to our Iudgment John the Son of George is Inheritable to the Land of John his Vncle. The End of the First Volume A TABLE OF THE Principal Points Argued and Resolved in the First PART OF THESE REPORTS A. Abatement See Pleadings IN the Ecclesiastical Court a Suit does not abate by the Death of either Party Pag. 134 A Baronet is Sued by the Addition of Knight and Baronet the Action shall abate 154 In all Actions where one Plaintiff of several Dyes the Writ shall abate save in an Action brought by an Executor 235 Acceptance Where Acceptance of Rent from the Assignee shall discharge the Lessee 99 Action See Bail Whether an Action of Debt qui tam upon the Stat. 5 El. c. 4. lies in B. R. 8 Action brought de uxore abducta and concludes contra forman Statuti where there is no Statute in the case yet good 104 Action for a Nusance in stopping of the Lights of his House p. 139 237 248 Action upon the Stat. 13 Car. 2. by one Bookseller against another for Printing his Coppy p. 253 Where the Matter consists of two parts in several Counties the Plaintiff may bring his Action in which he pleases p. 344 Where several Causes may be joyned in one Action and where not 365 366 Action upon the Case See Jurisdiction Way In the Nature of Conspiracy a-against three for Arresting without Cause and only one found Guilty 12 Such an Action lies against one p. 19 Lies for a Justice of Peace against one who Indicts him for Matters in the Execution of his Office p. 23 25 For taking his Wife from him brought against the Womans Father p. 37 Lies not against a Justice of Peace for causing one to be Indicted who was after accquitted 47 Where it lies for Suing one in the Ecclesiastical Court and where not 86 For erecting a Market 7 miles off 98 Upon the Custom of Merchants for a Bill of Exchange accepted 152 For not Grinding at his Mill 167 Where it lies against a Master of a Ship for Goods lost out of the same 138 190 191 Against the Mayor of L. for not Granting a Poll upon a doubtful Election 206 For not repairing a Fence 264 Against a Taylor for Spoiling his Coat in making 268 For Riding over the Plaintiff with an unruly Horse 295 Where Action lies for Defaming the Wife whereby the Husband loses his Customers 348 Action upon the Case For Slander You are a Forger of Bonds a Publisher of Forgery and Sue upon forged Bonds These last Words not Actionable 3 She was with Child by J. S. whereof she miscarried 4 Thou hast received stoln Goods and knew they were stolen J. S. Stole them and thou wert Partner with her 18 Of a Midwife She is an Ignorant Woman and of small Practice and very unfortunate in her Way there
Usage in England is that the Archbishop is Guardian of the Spiritualties in the Suffragan Diocess 225 234 Blasphemy Blasphemous Words not only an Offence to God and Religion but a Crime against the Laws State and Government and Christianity is parcel of the Laws of England 293 Bond. See Obligation What Bond a Gaoler may not take of his Prisoner 237 The Condition of a Bond or Covenant may in part be against the Common Law and stand good in the other part ibid. C. Certiorari PRisoners cannot be removed by Certiorari from a Country Gaol till the Indictment be found below 63 Lies to remove an Indictment of Manslaughter out of Wales to be Tryed in the next English County 93 So of Murder 146 Challenge What is good Cause and where Cause shall be shewn 309 Where the Kings Council shall shew Cause ibid Chancery Tryals directed out of Chancery the Course 66 Answer in a Court of Equity Evidence at Law against the Defendant 212 Churchwardens Bring Account against their Predecessor for a Bell whether it shall be said to be de bonis Ecclesiae or de bonis Parochianorum 89 Whether they may refuse to take the Oath to present and how to proceed 114. 127 General VVords to present Offenders do not extend to the Church-warden himself but relate only to the rest of the Parish 127 May make Rates themselves if the Parishioners are Summoned and refuse to meet 367 Common See Pasture Where Common is claimed for Beasts Levant and Couchant on certain Land no other Beasts ought to be put on the Common but those of the Tenant of the Land to which it is appendant or those which he takes to compester his Land 18 A Man cannot prescribe for Common by a Prescripeion that is unreasonable 21 Common apurtenent for Beasts Levant and Couchant how pleaded 54 Common in another Mans Soyl how to be claimed 383 A Commoner cannot prescribe to exclude his Lord 394 The Comencement of Commons 395 In a Title of Common for Beasts Levant and Couchant the Levancy and Couchancy is not Traversable 385. Nor material among Commoners 397 Condition What Words make a Condition what a Limitation and what Conditional Limitation 202 203 Conspiracy If one be acquitted in an Action of Conspiracy the other cannot be guilty but where one is found guilty and the other comes not in upon Process or Dyes yet Judgment shall be against the other 238 Indictment lies for Conspiring to charge with a Bastard Child and thereby also to bring him to disgrace 305 Constable See Attorney Tenant in Antient Demesne not excused from serving Constable 344 Contingency See Grant Remainder Conveyance Contingent Estates what and how destroyed 215 334 Whether a Descent in Tayl prevents a Contingent Remainder 306 Contract A Verbal Contract cannot create a Penalty to oblige the Heir 76 Conveyance The Modern VVays of Conveyancing to prevent the disappointing Contingent Estates 189 VVhere a Conveyance is good before Inrolment and where not 360 Difference between a Conveyance at Common Law and a Conveyance to Uses 373 378 Copyhold See Pasture Admittance of Tenant for years is an Admittance of him in the Remainder 260 VVether Copyholder for Life in Reversion after an Estate for Life in being can Surrender to a Lord Disseizor 359 Coroner VVhere a Melius Inquirendum shall be granted after a Coroners Inquisition super visum Corporis 182 A Coroners Inquisition that finds a person Felo de se non Compos may be Traversed 278. And quasht 352 Corporation VVhat they can do without a Deed and what not 47 48 Costs See Assault and Battery Treble Costs in an Action on the Stat. 8 H. 6. of Forcible Entry 22 Costs where payable in a VVrit of Error 88 VVhere payable by an Executor 92. and Administrator 110 116 If an Executor be sued and the Plaintiff Non-suit he shall have Costs but an Executor Plaintiff shall pay no Costs upon a Non-suit 94 Costs and Damages not to be given in an Action Popular 133 Costs de Incremento 337 362 Covenant VVhat Collateral matters shall be implied upon a Covenant 26 44 45 Thô a Covenant be made only to a Man his Heirs and Assigns yet if a Breach be in his Life time his Executors may bring the Action for Damages 176 VVhere a Covenant shall bind notwithstanding a subsequent Act of Parliament 175 176 Covenant with an Intended VVife whether discharged by subsequent Marriage 344 Courts See Jurisdiction Inferiour Courts cannot make a Continuance ad Proximam Curiam but always to a Day certain 181 Customs See Prescription To maintain a Common Key for the unlading of Goods and therefore every Vessel passing by the said Key to pay a certain Sum a void Custom as to those Vessels which did not unlade at the said Key 71 A Custom that Lands shall descend always to the Heirs Males tho' of the Collateral Line Good 88 D. Damages See Costs NOne but the Courts at Westminster can increase Damages upon View 353 Date See Lease Demurrer The old way of Demurring at the the Bar 240 Devastavit See Executor Return Devise Whether a Termor may Devise in Remainder and limit a Possibility upon a Possibility 79 To Dr. V. during his Exile from his Country what Estate passes 325 Divers parcels of Lands being devised whether these words the said Lands pass all the parcels or only the last mentioned 368 A Devise of Lands to two equally to be divided makes them Tenents in Common 376 Discents The various Kinds of Discents or Hereditary Successions and the Rules whereby they are to be governed 414 The Discent from a Brother to a Brother thô it be a Collateral Discent yet it is an immediate Discent 423. And therefore two Brothers Born in England shall Inherit one the other tho' the Father be an Alien 429. Secus in Cases of Attainder 416 417 If the Son purchase and have no Kindred on his Fathers side but an Alien his Estate shall discend to the Heir on the part of his Mother 426 Distress Whether in Distress for Rent Horses may be severed from a Cart 36 An Information lies not against a Landlord for taking excessive Distress of his Tenents 104 Hindring the Carrying off a Distress a provocation to make killing no more than Homicide 216 Dower The regular proceedings therein 60 Whether a Suit for Dower may be commenced by Plaint in an Inferiour Court without special Custom 267 E. Ecclesiastical Persons PRivilidges from Offices 105 Death of a Parson c. doth not make such a Non-residence as shall avoid a Lease 245 What Leases they may make and what not 245 246 Clergy Men are liable to all publick charges imposed by Act of Parliament in particular for reparation of the Highways 273 Of the Induction of Clerks by whom to be made 309 319 Election Where a thing depends upon Election what course is to be observed 271 Entry Where in Ejectment actual Entry is necessary 332 Error See Executors To reverse a Judgment
the Avowant mode forma as he hath set forth 211 The Avowant demurs generally The Plaintiff joyns 212 4. The Plaintiffs declare against three Defendants for taking and detaining their Cattel 224 One of the Defendants avows the other two make Conizance as his Bayliffs The Avowant says That the Father being seized in Fee of the third part of a certain Messuage c. of which the Locus in quo was parcel demised the same for 99 years if A. B. and C. or either of them should so long live reserving Rent That the Lessee entred That the Father being seized of the Reversion died seized and a discent to the Avowant as Heir at Law who distrained for Rent arrear 225 Super praedictam tertiam partem c. And avers That C. is still living In Bar to the Avowry the Plaintiffs Confess the seisin of the Father of one third and that J. S. was seized of the other two parts who licensed the Plaintiffs to put in their Cattel upon the Locus in quo which they did 226 The Defendants demur to the Bar. The Plaintiffs joyn in Demurrer 227 S. Scire facias 1. AGainst a Ter-tenant 101 The Judgment recited in the Writ to the Sheriffs of London The Plaintiff obtulit se at the Return The Sheriffs Return That there were no Tenants of any of the Defendants Lands at the time of the Judgment or at any time since quibus Scire fac ' possunt 101 A Testatum Scire fac ' to the Sheriff of Norfolk The Plaintiff and a Ter-tenant appear at the Return The Sheriff Returns That he had summon'd P. S. who was then Tenant of Lands which were the Defendants at the time of the Judgment and that there are no other Tenants to whom c. The Ter-tenant salvis sibi omnibus exceptionibus c. Imparls The Plaint revived continued and adjourn'd by Act of Parliament 3 Febr. 1. W. M. A further Imparlance The Plaintiff prays Execution 102 The Ter-tenant pleads in Abatement of the Writ and alledges that there are other Tenants of other Lands in Surrey belonging to the Defendant at the time of the Judgment and prays Judgment and that the Writ may be quasht The Plaintiff demurs to the Plea The Ter tenant joyns in demurrer 103 Sheriff Action against him Vid. Actions on the Case 3. Plea to his Bail Bond. Vid. Debt 5. Slander Vide Action on the Case 7. Special Verdict Vid. Trover 2. T Trespass 1. TRespass against the Defendant simûl-cum G. F. for taking Vi armis and Impounding his Cattel quousque finem fecit of 11 l c. contra pacem c. 90 The Defendant as to the Vi armis and contra pacem pleads Not guilty And as to the residue of the Trespass he pleads a Seizure by virtue of a Fieri facias out of the Common Pleas and the Sheriffs Warrant thereupon and that the Cattel were appraised at 11 l being the true Value and detain'd until the said Sum was paid to the Sheriffs Baily for the use of the said Sheriff pro deliberatione averiorum prout bene licuit which was the residue of the said Trespass absque hoc that he is guilty before or after the said taking 91 92 The Plaintiff demurs and assigns for Cause that the Traverse is ill as to Time and that the 11 l ought not to have been paid to the use of the Sheriff by the Law of the Land The Defendant joyns in Demurrer 93 2. Trespass for Assault Battery Wounding and Imprisonment 189 As to the Vi armis vulnerationem the Defendant pleads Not guilty and Issue thereupon At to the residue of the Trespass he pleads that he obtained Judgment against the Plaintiff in the Common Pleas in an Action of Indebitatus Assumpsit which Judgment was afterwards set aside and vacated but before it was vacated a Ca. sa was sued out thereupon directed to the Sheriff who made his Warrant to the Bayliff of the Liberty 190 The Bayliff takes the now Plaintiff thereupon and had him in Custody until he paid the Money quae sunt idem Resid ' Transgr ' Insult ' Imprisonat ' and Traverses that he is not guilty of any other Trespass c. The Plaintiff replies That the now Defendant then Plaintiff in the Judgment was an Attorney whose Duty is to enter Judgments fairly and honestly and that he in deceit of the Court entred the Judgment when he ought not to have done it 191 And that afterwards on the Examination and Consideration of the said Entry the said Judgment was by the said Court adjudged void ab initio 192 The now Defendant Plaintiff in the Judgment confesseth the Matter and saith that he appointed the Judgment to be duly Entred but by default of the Clerk it was entred irregularly Absque hoc that it was Entred by the said now Defendant falso fraudulenter in deceptionem Curiae ibid. The Plaintiff demurs The Defendant joyns 193 Trover 1. TRover brought by an Assignee of Commissioners of Bankrupts 63 The Declaration sets forth the Bankrupt to be possest of such and such Goods which came to the hands of the Defendant 63 That the Bankrupt exercised the Trade of a Vintner and became Indebted to several Persons That he departed from his Dwelling-House and became a Bankrupt That the Creditors Petition'd the Lord Chancellor The Commission sued out 64 The Commissioners find him a Bankrupt and make Assignment to the Plaintiff 65 A Conversion of the said Goods by the Defendant 66 The Defendant demurs to the Declaration The Plaintiff joyns in Demurrer 66 2. Against the Sheriffs of London and others for 225 l in Money numbred and divers Goods 156 The Defendants as to part of the Goods which they set forth in particular plead That the Plaintiffs formerly brought an Action of Trespass upon the Case in the Kings-Bench against the now Defendants for taking and carrying away the Goods now sued for 159 That upon Not guilty pleaded the Issue came to a Trial and the Jury found a Special Verdict 160 Which they recite at large That the Owner of the Goods became a Bankrupt That a Judgment was recovered against him for 1000 l and a Fieri facias issued out which being delivered to the Sheriffs of London they seized the Goods in Execution That after Seizure and before Sale a Prerogatie Process issued out against the Goods which is recited in haec verba 161 The Return of the said Process 163 The Goods taken by Inquisition inventoried appraised and sold and the Money delivered to the King's Debtor 164 A Commission of Bankrupts sued out The Commissioners assign to the Plaintiffs The Assignees possest And then they Conclude Si utrum super tota Materia the Defendants are guilty the Jurors know not if the Court shall adjudge them guilty they find for the Plaintiffs if not for the Defendants 165 After several Continuances the Loquela remaining sine die was revived and continued by Act of Parliament
so a man cannot be Child and Husband c. because there is a repugnancy in the Offices A Parent cannot obey a Child and therefore 't is unnatural a Parent should be Wife to a Child A Parent as a Parent may Command and Correct a Child and there there a Child as Husband should Command and Correct the same Parent is utterly repugnant Vnder the Law the Son that Cursed his Father or Mother Levit. 20. ver 9. and also he that was Disobedient to either of them Deut. 21. ver 18 19 20 21. was to be put to death And as there is a Reverence and Obedience due to the Immediate Parents so there is to Grand Parents if the Immediate Parent have an absolute or qualified Power over the Son the Grand Parent has the like over the Son too because the Grand Parent hath it over the Immediate Parent Now I will cite a Case in our Law somewhat to the purpose I have been speaking 't is in Platt's Case Pl. Com. 37. a. If a Woman be Warden of the Fleet and one that is in Prison there marry her he is thereby out of Prison and the Law does adjudge him to be Enlarged because 't is repugnant that he as Husband should have the Custody of her and she as Gaoler the Custody of him And the like Reason at least in some degree is against Parents marrying their Daughters c. And now as to all this I will cite one of the greatest Human Authorities It is the Opinion of Hugo Grotius the Learnedest man of his time De jure Belli ac Pacis lib. 2. cap. 5 12. Ab hac generalitate says he eximo matrimonia parentum cujuscunque gradus cum liberis quae quo minus licita sunt rati ni fallor satis apparet nam nec maritus qui superior est lege matrimonii eam reverentiam potest praestari matri quam natura exigit nec patri filia quia quanquam inferior est in matrimonio ipsum tamen matrimonium talem inducit societatem quae illius necessitudinis reverentiam excludit The Reverence on each side is inconsistent But this Reason holds not against the marriage of a man's Uncles Wife and the same very Great Person gives his Opinion to this purpose a little before De conjugiis eorum qui sanguine aut affinitate junguntut satis gravis est quaestio non rato magnis motibus agitata nam causas certas ac naturales cur talia conjugia ita ut legibus aut moribus vetantur illicita sint assignate qui voluerit experiendo discet quam id sit difficile imo praestari non possit Thirdly Another Reason of the Vnlawfulness or Prohibition of Marriages of the first kind which holds not in this Case is the inconsistence absurdity and monstrousness of the Relations to be begotten by them the Son would be his Fathers Brother his Mothers Grandson his own Uncle c. Object In the Civil Law Uncles are Loco Parentum Answ They were so estimated there but thence it doth not follow that they are so But I will give the true Reason why they were so called viz. They the agnati are legitimi Tutores of the Brothers Children and this appears by Justinian But how absurd is it to apply this to the Matter Why by the same Reason the Guardian in our Law can't marry his Ward let the Degree be what it will Object The Canon Law does prohibit the same also because they are Loco Parentum Answ The Reason is borowed from the Civil Law and must have the same Answer There is another thing very remarkable as to this distinction viz. that our Law puts a great difference between Parents and Uncles the Father can't inherit the Son but the Uncle may So that the measure to be taken by and from the Laws of one Kingdom to another is quite different In the Synod held by the Province of Canterbury Anno 1603. there were certain Canons made The Synod was called by the Kings Writ and the Canons ratified as they ought to be In the 99th Canon of those it is Ordained That no person shall marry within any Degrees expressed in the Table there mentioned This Table was first set up after this Canon but it had been published by Proclamation c. in the Queens time This Canon is so penned that it must be understood that all the Degrees are expressed there within which Marriage was intended to be prohibited but now there is no such Degree as this in the present Case there I do not take the Pleading in this Case to be good because here it is not said she was Carnally known as before I observed it ought to be to bring him within the Statute then there is a Fault in the Plaintiffs for tho' they have set down the Case so that we can see what it is yet they ought to have averred that it was not within the Levitical Degrees because that then they might have given opportunity to the Defendant to assign some other Cause Bene verum est c. but she had married a former Husband before c. Now I come to the other sort of Objections which I promised to give some Reasons in answer of for the satisfaction of of People abroad I did say That it were very difficult without this Statute to make it out that we were bound to observe this part of the Iudaical Law And we are not bound to observe any part of the Iudaical Law except those particulars where there is a Natural Reason too Acts Apost 15. There is the account of a Council held concerning the keeping of the Mosaical Law and the result is That it seems good to the Holy Ghost and the Apostles to lay upon their Brethren which were of the Gentiles in Antioch c. no greater burthen than these necessary things That the abstained from Meats offered to Idols Blood things strangled and Fornication A man can't say that all these were Mosaical neither but it is plain these were all they would lay upon them and the Corinthians 'T is clear they were not given as Precepts but Counsels that the Communion between the two Churches which were then coming together might not be interrupted Cor. 10. ver 17 c. Whatsoever is set before you eat asking no Question for Conscience sake But if any man say unto you This is offered in sacrifice unto Idols eat not for his sake that shew'd it and for Conscience sake c. Conscience I say not thine own but the others c. Give none offence neither to the Jews c. Rom. 2. ver 14. does clearly affirm that the Law of Moses was not given to the Gentiles And Rom. 3. v. 2. shews that this Law called there the Oracle of God was committed to the Jews only Object And this is the great Objection against our Prohibitions This Law depends upon the Original Tongues and Tradition and History and Laymen cannot know the Secret of
this Law by which this matter is to be decided Answ This Objection hath some speciousness in it but no weight First The Law viz. the Levitical Law is generally understood to be that which is publickly received as the Translation all Laws that are made concerning any such thing are to be understood of that kind of the thing which is vulgarly and generally known and received Secondly And 't is not long since the Clergy came to be so learned they were content heretofore with the Vulgar Translation and 't is not necessary for a Dean for that purpose or other Dignitary or Clergyman quasi such that he should understand the Languages But Thirdly We have no Cognizance of this Matter there was a time when they had no cognizance of Wills and Testaments but now they have they must study them and determine concerning them Since we have a Cognizance we may as well prohibit in this Case of Land Freehold c. For since this is made of the same nature we must go the same way If an Act were made that in matter of Theft c. we should judge after the Law of Moses we must study it and judge by it 'T is no new thing that Laws be thus transferred from one Nation to another thus was the Law of the Twelve Tables from Athens to Rome thus the Law of Rhodes to other parts of the World and so our Law was made the Law of Ireland and this is the Answer I give to the two Statutes that since we have Cognizance we must take notice of Gods Law If Churchmen in this case encroach Iurisdiction they must be prohibited because they have no Cognizance and we have tho' their accidental Learning may be more than ours Object 'T is hard that this should be a Prohibiting Law any more than those two other Statutes which 't is agreed were directive only to the Spiritual Courts and gave the Temporal Courts no Jurisdiction Answ There is a full and flat answer to this this Statute makes it not at all cognisable by them for where any Court has Cognizance the party must have Process c. But now here in the close of this Statute 't is enacted That no Person c. shall be admitted to any of the Spiritual Courts c. to any Process Plea or Allegation contrary to this foresaid Act And therefore all Cognizance of that nature is taken away from them They have Cognizance of all Marriages within the Levitical Degrees we allow and agree to disturb and punish the Parties but they have no Cognizance nor Power to determine what is within the Levitical Degrees and what not I conclude It is the Opinion of this Court and of all the Iudges that the Prohibition do stand and no Consultation be granted In this Case Dr. Stern the Archbishop of York was very zealous and industrious to set aside the Prohibition He made several and distinct applications to the Iudges about it he earnestly and particularly debated the matter with them and gave them Papers of his Arguments and Reasons to prove this Marriage incestuous and unlawful Thomas Rudyards Case THomas Rudyard an Attorney of this Court came into this Court upon the retorn of an Habeas Corpus directed to the Keeper of Newgate who retorned that he was taken and detained by virtue of a Warrant to him directed from Sir Samuel Sterling Lord Mayor and Sir J. Robinson two of the Kings Iustices of the Peace the tenour of which Warrant follows in these words Whereas T. R. Gent. hath been brought before Us and examined touching several Misdemeanours by him committed within the City of London since the Month of April and before the 4th of this instant June and to Us complained of and more particularly for inciting and stirring up of His Majesties Subjects then and there to the disobedience of his Laws and for abetting and encouraging of such as do meet in unlawful and seditious Conventicles contrary to the form of the late Statute made in the 22th Year of our Sovereign Lord the King that now is upon whose Examination we find just cause to suspect him to be guilty of the said Misdemeanours and thereupon did require him to find Sureties to be of the good Behaviour which he refused These are therefore to require you to take into your Custody the Body of the said T. R. and him safely to keep till he be from thence delivered by due Course of Law Given under our Hands and Seals this 11th day of June 1670. The Retorn being filed and spoken to by the Counsel upon two several days the Court delivered their Opinion Seriatim Wyld held that he ought to be remanded for if the Warrant had been that he appeared to be guilty or that they had found him guilty then the Commitment had been good as hath been agreed on all Hands and here the words in a favourable construction amount to as much The proceedings of the Magistrates against such Seditious Persons are to be encouraged especially in such a time as this when 't is known they are grown to such a head Archer contra For 't is altogether uncertain 't is said he was complained of c. but not that he did any thing and that they find just cause to suspect but shew not the Cause in particular If it had been said sundry Misdemeanours and not expressed what all would agree it insufficient as Chambers Case 1 Cro. and Wolnoths Case ibid. Mr. Selden 3 Car. was required to find Sureties for the good Behaviour for which the Iudges were severely reprehended in full Parliament because no sufficient Cause appeared Tho' the Iustices here had sufficient Cause to induce their suspicion they ought upon the Retorn to have signified it to the Court for their satisfaction also it should have been expressed also in what sum they required him to find Sureties that it might have appeared to be reasonable so that we cannot remand him but I think 't is fit to oblige him to Bail to appear the first day of the next Term that he may answer such things as shall be objected against him Tyrrell It is the Statute of 34 E. 3. c. 1. that enables Iustices of the Peace to require Sureties for the good Behaviour and that upon Suspition and seems to refer it to their Discretion but that must be exercised according to Law and whether it be or no the Iudges in this Hall must judge and therefore the matters ought to be certainly certified to them The present Retorn is altogether uncertain wherefore I think it ought to be discharged but I would advise him to consider the Statute of 35 Eliz. c. 1. against impugners of the Kings Authority in Ecclesiastical Causes Vaughan Chief Iustice This Case is one of the nicest that ever I met with on the one side is the consideration of discouraging Sectaries and preserving of the Publick Peace and Quiet of the Government On the other side the Legal Right which every
one hath to his Liberty Whoever excites the People to the disobedience of a Law commits the Highest Offence under High Treason I do not mean every Law as if one which should cause a Trespass to be done should be so guity but Laws which are of a publick Nature As to the Retorn I think it is the most insufficient I ever yet saw The certainty of the sum ought to have been expressed in which he and his Sureties should have been bound for otherwise the sum required might be so great that any Person might be constrained to remain in Prison There may may be lawful inciting to the breach of the Law as a Counsel or Attorney advising an Action which is not maintainable and sometimes it may be upon some particular design as in Dier 168. Bronker being made Sheriff one Hyde dissuaded him from taking the Sheriffs Oath because of the difficulty of the Articles B. was condemned in 100 l fine and 5 weeks imprisonment for refusing of the Oath and H. in 20 l and 5 weeks imprisonment for inciting him to it and the reason was because Hyde knew it to be an Offence and that makes it differ from the case of a Counsel or Attorney but the Offence was the less because the incitement was upon a particular reason and not against the Law quatenus a Law In the Retorn here they don't say that they found he was guilty but only that they found cause to suspect him Now what Remedy can be had in such a Case can an Issue be taken whether they had cause to suspect him or no Put the case one who had been fined 10 l for an Offence against this Act in which case the Statute allows of an Appeal had come to Mr. Rudyard to know what he should do and he had advised him to bring an Appeal at the Quarter Sessions this is no Offence and yet 't is an abetting to such as meet and perhaps might be a cause of suspition to a Iustice of Peace I do not see that the Retorn is good in any part of it and therefore he ought to be discharged but I think the Iustices should do well if they know him to be guilty to commit him by a better Warrant whereupon the Prisoner was discharged For it is the usage of this Court when the Iudges are of three Opinions as here my Lord Chief Justice and Tyrrell for discharging him Archer for putting him to Bail and Wyld for remanding him to give the Rule according to the Opinion of the Two which agree The Court said they had often directed that no Habeas Corpus should be moved for in this Court except it concerned a Civil Cause because when the Party was brought in and the Cause shewn this Court cannot proceed upon it therefore the proper place to move for them is the Kings Bench but they permitted it in this Case because the Party was an Attorney of the Court. The Court demanded of Rudyard upon his first bringing in whether he would submit to what they should propose and direct he said he would submit to the Rule of the Court but the Court told him that he must do but demanded whether he would yield to what they should do by way of Arbitration but he tho' advised otherwise by his own Counsel discovered his unwillingness to submit to any thing but the Rule of Law Termino Sancti Michaelis Anno 23 Car. II. In Communi Banco Methuselah Turner versus Sir Samuel Sterling Pas ' 23 Rot ' 363. IN an Action upon the Case brought by the Plaintiff against the Defendant the Plaintiff declares That London is an Ancient City and that there is an Ancient Bridge and that there use to be two Officers for it to look after it called Bridgmasters and that they have certain Fees and Profits belonging to them And that there is a Custom for the Citizens assembled in a Common Hall or Court yearly to choose or continue those Bridgemasters And another Custom that if one of these die within the Year that the Mayor shall assemble a Common Hall and they being Congregated shall proceed to the election of another Bridgemaster in his stead for the residue of the year And another Custom that upon their proceeding to Election if there be two Persons upon Election he that is chosen by the major number of Votes is duly Elected and that if one in such case require that the Polls should be numbred that the Mayor ought to allow the Poll and that the Assembly ought to be dismissed till that were done And another Custom that the Party so chosen ought to be sworn and used to receive the Profits to his own Use That 24 June 22 nunc Regis there was a Common Hall assembled the Defendant being then Mayor and that A. and B. were then and there chosen to this Office c. and being so A. died in October following and on the 18th of the same October there was another Common Hall for the Election of a Bridgemaster in his stead congregated by the Defendant and then and there the Plaintiff and one Allen stood as Competitors to be chosen for that Office and the Question grew which had the greatest number of Electors and the Plaintiff avers that he had the greatest Number and the other denied it and he requested that according to the Custom they might go to the Poll and the Defendant not minding the execution of his Office but violating the Law and Custom of the City did then and there malitiously refuse the numbring the of Polls and made Proclamation That the Congregation of Electors should depart and discharged the Court and the other man was sworn and so he lost the Profits of the Place c. Vpon Not Guilty pleaded and a Verdict for the Plaintiff after it had been several times spoken to in Arrest of Iudgment the Court delivered their Opinions seriatim Wyld I think the Action well lies for otherwise it will be in the power of every Head Officer to get whom he will have chosen or refused It is objected That non constat whether the Plaintiff should have been chosen Answer The Law gives an Action for but a possibility of Damage as an Action lies for calling an Heir Apparent Bastard It was objected also That at the Common Law there was no Action for a Parliament man against a Sheriff for not returning of him being Elected I Answer That is a place of Burthen this of Profit if I have an Horse or Beast-Market and a Toll for Sale and one hinder the Beasts from coming hither non constat whether they should be sold Yet for the possibility of that and of the loss of the Toll thereon an Action lies 41 E. 3. 24. Pl. 17. b. An Action of the Case was brought against a Sheriff for making of a Precept to one to make a Retorn in the Plaintiffs Case who indeed was not a Bailiff of a Franchise and thereupon the Retorn was quashed Br '
Court for the proceedings are diverso respectu We proceed against Conventicles as being against the Peace and as being against the Laws of the Church and to prevent the broaching of Heterodor Opinions as in one Court we do agere civiliter by Action criminaliter by Information for the same matter Secondly The proceeding in this Case is according to the constant course of proceeding in their Court for when a Presentment is made they form Articles thereupon tibi articulamur objicimus c. but they never recite or mention the Presentment in the Articles and therefore it does not nor need it appear in them in this Case So that it cannot from hence he concluded to be a prosecution ex Officio mero Moreover 25 H. 8. when it was in force concerned Heresie only As to the Presentment made in this Case by the Curate 1. Those Canons are not to be questioned they have been always allowed having been confirmed by the King 2. The Rectors absence shall be intended 3. The Churchwardens themselves whose ancient and unquestioned Office it is to make Presentments don't take a particular Oath upon all the Presentments they make but they do it by vertue of their general Oath of Churchwardens and Ministers do the same as the Bishop of Sarum present in Court had asserted just before in verbo Sacerdotis or rather by vertue of their general Oath of Canonical Obedience 4. They are not bound to specifie the Presentment in their Articles and this is not so liable to the Objection of Mischief and Vnreasonableness as the Informations daily brought in the Kings-Bench in the Name of the Clerk of the Crown which Informations are approved and preserved by the very Statute of 18 Eliz. c. 5. And if there be no due Presentment 't is an Error which consists in not proceeding according to their Rules i. e. the Canon Law and the proper remedy for that is by Appeal and our Courts will not take notice whether they observe their own Laws Prohibitions are only to be granted when the Common Law is invaded and interfered with Thirdly As to the examining of the Party upon Oath here is no cause to mention it and indeed it is not their course for they only ask him ore tenus whether he will confess or deny the Articles if he deny them then there is litis contestatio and they proceed to examine Witnesses to prove it and if it be not proved the Informer is condemned in Costs Justice Wyld I am of Opinion that there should go no Prohibition We must Iudge only upon the Suggestion Here 't is suggested that the Defendant proceeded against the Plaintiff ex Officio but that may be understood two ways either that he proceeded officiose on his own head or that he proceeded out of Duty according to his Duty and nothing appears to the contrary of this last and then he did as he ought If the Plaintiff had suggested that by the Law of the Land there ought to be a Presentment by such persons in such manner c. he might have brought that into question Archer of the same Opinion We must give faith and credit to their proceedings and presume that they are according to their Law 4 Co. 29 The King with the Convocation may make Orders and Constitutions for the Government of the Church Tyrrell of the same Opinion But if the Suggestion were that no Presentment by a Curate were sufficient nor unless it were upon Oath c. I should have been Opinion for a Prohibition I hold that the King and Convocation without the Parliament can't make any Canons which shall bind the Laity though they may the Clergy Vid. 35 H. 8. c. 19. Vaughan of the same Opinion If the Articles were exhibited meerly ex Officio i.e. out of the mind of the Chancellor himself they were not warrantable But there is no colour for this Suggestion for they appear to be the Information of a Publick Notary As to the Presentment which is thought requisite by the preamble of 25 H. 8. c. 14. declaratory of the Common Law or not it is sufficient Answer to say that the Act is repealed and therein the Preamble And for ought any man knows the Preamble was the Cause of the Repeal this has been the only specious Objection As to the Canons 3 Jacobi certainly they are of force tho' never confirmed by Act of Parliament Indeed no Canons of England stand confirmed by Act of Parliament yet they are the Laws which bind and govern in Ecclesiastick Affairs The Convocation with the License and assent of the King under the Great Seal may make Canons for regulation of the Church and that as well concerning Laicks as Ecclesiasticks and so is Linwood Indeed they cannot alter or infringe the Common Law Statute Law or Kings Prerogative but they may make alterations viz. in Eccleastical Matters or else they could make no new Canons All that is required of them in making of new Canons is that they confine themselves to Church Matters As no Human Law can be made which is contrary to the Divine Law and it is binding only in those things which are permissa by the Divine Law So no Canon Law can be made which is repugnant to the Law of the Land The Subject Matter is in the Case The permissa the things of Ecclesiastical Nature which are left indifferent by the Law of the Land in this Case we must presume there was a Presentment according to their Law if not the Remedy is by Appeal We ought not to assume the Iurisdiction of Iudging upon their Law but give way to their course of Proceedings Serjeant Ellis I only intended that Canons cannot be made to alter the Law without Parliament Curia We all agree as to the First Exception that the Spiritual Court may proceed against Conventicles as a Spiritual Offence tho' not as a Civil As to the Second That they have Conusans of all False Worshippers As to the Third That there is nocolour or occasion to make it Note The Course of the Spiritual Court is not to make a Significavit until forty days after the Excommunication General Citation is a cause of Prohibition for it ought to be expressed for what Cause But this is cured by Appearance or Appeal Termino Paschae Anno 1 Willielmi Mariae In Communi Banco Anonymus UPon a Suggestion of Devastavit of a Feme Executrix it was That the Baron and Feme devastaver ' converter ' ad usum ipsorum And upon the Issue it was found accordingly It was moved in Arrest of Judgment That they could not Convert to their own use And so in Trover and Conversion Quod converter ' ad usum ipsorum is not good Sed non allocatur For here the material part of the Issue was the Wasting which the Baron and Feme might do joyntly and the Conversion is nothing to the purpose Vid. 2. Sand. Issue upon a Devastavit Anonymus
sunt verificare unde petunt Judicium si praed ' Nicholaus Sabian ' accon ' suam praed ' versus eos habere seu manutenere debeant The Conclusion of the first Plea c. Et quoad resid ' Transgr ' convercon ' disposicon ' resid ' bon ' catall ' pecun ' in Narr ' praedict ' superius menconat ' iidem Alicia Thomas Benjaminus Georgius dicunt quod ipsi non sunt inde culpabil ' Et de hoc pon ' se super Patriam Et praedict ' Nicholaus Sabian ' similiter Not Guilty to the residue of the Goods c. Creswell Levinz Demurrer Et praedict ' Nicholaus Sabian ' dicunt quod ipsi per aliqua per praedict ' Aliciam Benjaminum Thomam Georgium modo forma superius placitand ' allegat ' ab accon ' sua praed ' inde versus eos habend ' praecludi non debent quia dicunt quod placitum praedict ' per ipsos Aliciam Benjaminum Thomam Georgium modo forma praed superius placitat ' materiaque in eodem content ' minus sufficien ' in lege exist ' ad ipsos Nich ' Sabian ' ab acc̄one sua p̄d ' inde versus ipsos Aliciam Benjaminum Thomam Georgium habend ' praecludend ' ad quod quidem placitum ipsorum Aliciae Benjamini Thomae Georgii iidem Nicholaus Sabian ' necesse non habent nec per legem terrae tenentur respondere Et hoc parat ' sunt verificare Unde pro defect ' sufficien ' respons ipsorum Aliciae Benjamini Thomae Georgii in hac parte iidem Nicholaus Sabian ' petunt Judicium dampnum sua occ̄one convercon ' disposicon ' bon ' catall ' ill ' sibi adjudicari c. Joynder in Demurrer Et praedict ' Alicia Benjaminus Thomas Georgius dicunt quod placitum praed ' ipsorum Aliciae Benjamini Thomae Georgii modo forma praed ' superius placitat ' materiaque in eodem content bon ' sufficien ' in lege exist ' ad ipsos Nicholaum Sabian ' ab accon ' sua praed ' versus ipsos Aliciam Benjaminum Thomam Georgium habend ' praecludend ' quod quidem placitum materiamque in eodem content ' ipsi iidem Alicia Benjaminus Thomas Georgius parat ' sunt verificare Et quia praedict ' Nicholaus Sabian ' ad placitum ill ' non respond ' nec ill ' hucusque aliqualit ' dedic ' sed verificacon ' ill ' admittere omnino recusant iidem Alicia Benjaminus Thomas Georgius ut prius petunt Judicium Et quod praedict ' Nicholaus Sabian ' ab accon ' sua praed ' inde versus eos habend ' praecludentur c. Et quia Justic ' hic se advisare volunt de super praemiss priusquam Judicium inde reddant dies inde dat' est tam praed ' Nicholao Sabian ' quam praed ' Aliciae Benjamino Thomae Georgio hic usque in Octab ' Sancti Hillar ' de audiend ' inde Judicio suo eo quod iidem Justic ' hic inde nondum c. Lechmere versus Toplady IN an Action of Trover by Letchmere and Others against Alice Toplady Sir Benjamin Thorowgood and Others where the Plaintiffs Declared That they were possessed de ducent ' viginti quinque libris legalis monet ' Angl ' in pecuniis numerat ' and of ten pipes and fifty gallons of Canary and of divers other things in the Declaration mentioned which they lost and which came afterwards to the possession of the Defendants and they converted them to their own use The Defendants as to divers of the Goods in the Declaration mentioned which they particularly recite in their Plea plead in Bar That in Michaelmass Term in the second year of the late King James the Second the said Plaintiff commenced an Action against the now Defendants in the Kings Bench de plaeito Transgr ' super Casum where they Declared that the Defendants Vi armis took the said Goods and Chattels in the Declaration now mentioned and pleaded to apud London c. ceperunt asportaverunt To which the Defendants pleaded Not Guilty and went to Trial upon that Issue Vpon which the Jury found a Special Verdict which the Defendants set forth in their Plea verbatim together with the whole Record in the Kings-Bench and that upon that Special Verdict the Court gave Judgment that the Plaintiffs nil capiant per billam and that the Defendants irent inde sine die prout per Recordum Process inde in Cur ' dicti domini Regis dominae Reginae nunc coram ipsis Rege Regina apud Westm ' residen ' plen ' apparet quod quidem Recordum in plenis róbore vigore suis adhuc remanent minime reversat ' seu annihilat ' and avers that the Goods and Chattels in both Declarations ' were the same and the taking carrying away and disposing of the said Goods in the said Action of Trespass and the coming of the said Goods to the hands of the Defendants and the disposition and conversion thereof in this Declaration mentioned are the same and the Cause of Action the same c. and as to the residue of the Goods and Chattels in the now Declaration mentioned the Defendant pleads Not Guilty and Issue thereupon and to the Bar pleaded the Plaintiffs demurred It was Argued by Serjeant Tremayne against the Bar That the Actions were of a different nature and that in many Cases Trover would lye where Trespass Vi armis would not 1 Cro. 667. Ferrars and Arden where 't is said If one deliver Goods to another to keep and brings Trespass and is Barred he may after bring Detinue because he mistook his Action Vid. 6 Co. 7. And he relied upon the Case of Putt and Royston Pasch 34 Car. 2. B. R. Rot. 422. where in an Action of Trespass upon a Not guilty Verdict was for the Defendant and Judgment and there the Plaintiff brought an Action of Trover for the same matter and the former Judgment was pleaded in Bar and upon a Demurrer it was adjudged for the Plaintiff Serjeant Pemberton contra 'T is taken for a Rule in Sparrie's Case 5 Co. 61. Nemo bis vexari debet si constet Cur ' quod sit pro una eadem causa He agreed that Trover would lye in many cases where Trespass would not but here it appears to the Court by the Matter disclosed in the pleading the Special Verdict and whole Record being set forth that the Plaintiff was barred before not for having mistaken his Action but upon the Rights and Merits of the Cause and this he said differed this Case from that of Putt and Royston Note That Case was Adjudged when Sir Francis Pemberton was Chief Justice of the Kings-Bench for there the Verdict being upon the General Issue in Trespass
which it was answered That they were not tyed to the Time but the Place it was ibidem facere Ordinationes and not adtunc ibidem But the Court gave Judgment upon the first Matter Newport versus Godfrey THe Plaintiff brought an Action of Debt in the Detinet against Godfrey Executor of Stephen Turner for 70 l arrear of Rent and declared upon several Demises upon the 28th of September 1685. to the said Turner reserving several Rents of which there became arrear to the Plaintiff in the Life time of the said Turner 70 l and it appeared by the Declaration that the Leases ended in the Life of the said Turner In Bar of which the Defendant pleaded several Bonds entred into by the Testator to divers persons for the payment of Money which he avers to be all for true and just Debts and that he had administred all besides Goods to the value of 40 l which he retained towards satisfaction of the said Bonds c. To which the Plaintiff demurred and it was Argued last Term for the Defendant that a Debt upon a Specialty was to be preferred before Debt for Rent upon a Lease parol Styl Rep. 61. Rolls said that a Specialty was of an higher nature than Rent reserved upon a Lease by Deed. Indeed it is made a Quaere in Roll. Abr. 1. part 927. but if Rent should be preferred where the Lease was continuing after the Death of the Testator in regard the Testator's Goods are liable to be distrained for it which the Executor cannot withstand Yet there is not the like Reason when the Lease expires in the Life of the Testator and the Case was adjourned to this Term for the Iudgment of the Court. And the whole Court were of Opinion that Judgment should be for the Plaintiff For tho' the Lease be determined yet the Debt still savours of the Realty and is maintained in regard of the Profits of the Land received insomuch that no Wager of Law lies in Debt for Rent tho' brought after the Lease determined A Bond given for Rent will not drown it 11 H. 4. 75. b. an Action lies against the Executors of an Assignee of a Lease for Rent in the Testator's time and yet the Assignee is chargable only in respect of the Lease Vid. 13 H. 4. 1. a. Office of Executors 209 210 211 c. Godfrey versus Ward IN an Action of Debt for Rent The Defendant pleaded the Statute of Limitations and that Causa Actionis praedicte c. accrevit above six years before the Writ brought To this the Defendant demurred and the Cause of the Demurrer was upon the late Statute for reviving of Process anno primo Willielmi Mariae by which it is provided in regard there was an Interruption of the Government and proceedings of Law from the 11th of September 1688. to the 13th of February following that the time within those Days should not be accounted as any part of the six years to barr an Action by the Statute of Limitations or of the six Months for bringing a Quare Impedit c. so as it was urged that the Defendant should have shewn that six Years and so many Days were elapsed as are between the 11th of December and the 13th of February For tho' six years may be passed yet the Plaintiff may be within time by reason of the said Statute But the Court were of Opinion that the Defendants Plea was well and this should be shewn of the Plaintiffs part for the Statute does not alter the Form of Pleading but that shall be as it was before and the Plaintiff if the Matter will bear it is to help himself upon the said Statute The old way upon the Statute of Limitations was for the Defendant to plead the Statute at large but of late years the General Pleading of Non assumpsit infra sex annos has been allowed Warren versus Sainthill Devon ' ss SAMUEL SAINTHILL nuper de Bradmuch in Com' praedict ' Armig ' Johannes Savery nuper de Bradmuch in Com' praedict ' Husbandnian attach ' fuer ' ad respondend ' Thomae Warren gen ' de placito Transgr ' super Casum c. Case for stopping up of a Foot way The Plaintiff says That was possest he and Inhab of in an ancient Messuage And that habuit habere debuit a Foot-way for himself and his Servants Et unde idem Thomas per Johannem Prowse Attorn ' suum Queritur quod cum praedict ' Thomas vicesimo nono die Septembris anno regni domini Regis dominae Reginae nunc primo continue postea usque primum diem Januarii tunc ê“x ' fequen ' fuit possessionat ' inhabitans de in quodam antiquo Mesuagio scituat ' jacen ' in villa de Watterstaffe infra paroch ' de Bradmuch praedict ' ac ê“ totum tempus ill ' quandam viam pedestrem ducen ' à Villa de Watterstaffe praedict ' in per trans quaedam Clausa voc ' Crollands Smiths Down and Tulver Park infra paroch ' de Bradmuch praedict ' usque ad villam de Bradmuch in Bradmuch praedict ' pro se servientibus suis ad eundem redeund ' omnibus temporibus ad libitum ejus tanquam ad Mesuag ' As belonging to his Messuage praedict ' spectan ' pertinen ' habuit de jure habere debuit praedicti Samuel ' Johannes machinan ' intenden ' ipsum Thomam minus rite perturbare ipsum de via praed ' impedire deprivare praedict vicesimo nono die Sept ' Anno primo supradicto apud paroch ' de Bradmuch quaedam Fossa Trencheas ex transverso viae praedict ' The Defendant to disturb him in the Way dug Ditches and Trenches cross the Way And erected Hedges and Fences cross it Whereby he was hindred of his Way in t ' Villas de Watterstaffe Bradmuch praedict ' fodier ' fecer ' ac etiam viam ill ' ibedem cum quibusdam sepibus fensuris ex transverso viae praedict ' eject ' obstruxer ' praecluser ' per quod idem Thomas à via praedict ' in forma praedict ' habend ' à praedict ' vicesimo nono die Septembris usque praed ' primum diem Januarii Anno primo supradicto penitus impedet ' deprivat ' fuit ad dampnum ipsius Thomae quadragint ' librar ' Et inde ê“ducit sectam c. To this the Defendant pleaded a frivolous Plea and the Plaintiff demurrs and the Defendant joyned in the Demurrer and Judgment was given for the Plaintiff Warren versus Sainthill IN an Action upon the Case for Stopping of a Way the Plaintiff declared that he was possessed and an Inhabitant of and in a certain ancient Messuage the 29th of Sept. in the first year of the now King and Queen and so continued to the first day of January then next following and for all that time had a Foot-way over the Defendant's
non habet nec per legem terrae tenetur aliquo modo respondere Et hoc parat ' est verificare Unde pro defectu sufficien ' replicaconis in hac parte Idem Samuel ut prius pet ' Judicium Et quod praedict ' Juditha ab accone sua praed ' habend ' praecludatur c. Et praedict ' Juditha ex quo ipsa sufficien ' Joynder in Demurrer materiam in lege ad acconem suam praedict ' versus praefat ' Samuel ' habend ' manutenend ' superius replicando allegavit quam ipsa parat ' est verificare Quam quidem materiam idem Samuel non dedic ' nec ad eam aliqualit ' respond ' sed verificacon ' ill ' admittere omnino recusat ut prius pet ' Judicium debitum suum praedict ' unacum dampnis suis occone detenconis debiti ill ' sibi adjudicari c. Et quia Justic ' hic se advisare volunt de super praemissis priusquam Judicium inde reddant dies dat' est partibus praedict ' hic usque à die Paschae in quindecim dies de audiendo inde Judicio eo quod iidem Justic ' hic inde nondum c. Judith Hanson versus Liversedge IN an Action of Debt upon a Bond the Condition was to perform the Award of two Arbitrators in Writing or by word of Mouth The Defendant pleaded Nullum fecerunt arbitrium The Plaintiff replies That at the time of the Bond and Award she had an Action against the Defendant for scandalous Words and that the Arbitrator did make declare and publish their Award in manner and form following viz. That the Defendant should pay to the Plaintiff 12 Guinea's and all such Moneys as she had expended circa prosecutionem placiti praedict ' and that the parties should give mutual Releases of all Matters to the Date of the said Bond and saith that she laid out in the said Suit 11 l 7 s and demanded the said Sums of Money of the Defendant and protestando that the Defendant had not paid her the 11 l 7 s dicit in facto that he had not paid the 12 Guinea's awarded as aforesaid hoc parat ' est verificare c. To this the Defendant Demurred And Pemberton for the Defendant said First This Award as set forth appears to be void for 't is to pay the Charges expended circa placit ' praed ' and the Award doth not mention any Suit before and tho' the Plaintiff in her Inducement saith That she had an Action for Words against the Defendant then depending that will not help it for that is no part of the Award but the Award in the Form as 't is set forth is unintelligible there being no Suit mentioned before to refer placit ' praedict ' unto Secondly 'T is not sufficient to Award payment of the Charges in such a Suit it being altogether uncertain what the Sum will amount to Thirdly It ought to have been shewn that the Plaintiff had a Cause of Action in the Action that is mentioned to have been brought against the Defendant for Slander and so is Spigurnell's Case in Siderfin 1st Part 12. Curia As to the first if the Award were in Writing in such form of Expression it could not be good but he which sets forth an Award by Parol is not tyed to the words for the precise words might be very difficult to prove but 't is sufficient to shew the effect and substance of what was awarded by Word of Mouth and 't is sufficiently shew that this Award was made concerning that Action of Slander For the Second the Court held that the Award was good for it may be easily reduced to a Certainty when 't is made appear what was laid out in that Suit as in 1 Roll. Abr. 251. Beale and Beale and in the 3 Cro. 383. to pay the Charges of such a Voyage held a good Award Thirdly The Plaintiff need not shew that there was Cause of Action for that is left to the Arbitrators and they have power to award Charges thereupon tho' in point of Law there were no Cause of Action for the Parties have made the Arbitrators their Judges And the Court were not satisfied with the Opinion Reported by Syderfin in Spigurnell's Case and said he was then a young Reporter Whereupon Judicium pro Quer ' Major probi homines de Guldeford versus Clarke Surr ' ss JOHANNES CLARKE nuper de Guldeford ' Debt upon a By Law made by a Corporation by Prescription in Com' praedict ' Dyer Sum ' fuit ad respondend ' Majori probis hominibus Villae de Guldeford ' in Com' Surr ' de placito quod reddat eis viginti libras legalis monet ' Angl ' quas eis debet injuste detinet c. Et unde inde iidem Major probi homines Villae de Guldeford ' praed ' per Henr ' Dyve Attorn ' suum dic ' quod cum praedict ' Villa de Guldeford ' in dicto Com' Surr ' est antiqua Villa quodque probi homines ejusdem Villae à tempore cujus contrarij memoria hominum non existit fuer ' Antiqua Villa adhuc existunt corpus Corporat ' Politicum in re facto nomine per nomen Majoris proborum homin ' Villae de Guldeford ' in Com' Surr ' A Corporation time out of Mind To implead and be impleaded per idem nomen usi fuer ' placitare implacitari respondere responderi Cumque etiam infra Vill ' ill ' habetur à toto tempore supradict ' cujus contrar ' memoria hom ' non existit habebatur talis consuetudo usitat ' approbat ' quod Major probi homines Villae praedict ' pro tempore existen ' vel major pars eorundem in Com' A Custom to make By-Laws Concil ' congregat ' assemblat ' usi fuer ' consuever ' facere constituere leges constitucones pro bono regimine gubernacone Villae praed ' inhabitan ' ejusdem poenas poenalitat ' For good Government of the Corporation And to impose Penalties Custom to elect a Bayliff Annually super personas contra leges constitucones ill ' delinquen ' imponere Cumque etiam infra Villam praedict ' fuit antiquus Officiarius annuatim quolibet anno super diem Lunae prox ' post Festum Sancti Michaelis Archi ' pro uno anno tunc sequen ' per Majorem probos homines praed ' elect ' vocat ' Balliv ' ejusdem Villae ad negotia ejusdem Villae peragend ' Cumque etiam praed ' Major probi homines Villae praed ' The By-Law set forth secundo die Octobris anno regni domini Caroli secundi nuper Regis Angl ' c. tricesimo quarto apud Vill ' de Guldeford praedict ' in Com' Consilio adtunc ibidem congregat ' assemblat '