the one took 70 l. and the other 30 l. damages shall be assessed severally It was admitted that regularly the damages ought to be entire especially where the Action is joint but where the Facts are several damages may likewise be so assessed but in this Case the Iury hath done what the Court would do had it béen in a Criminal Cause Curia This is all but one Fact which the Iury is to try 'T is true when several Persons are found Guilty criminally then the damages may be severed in proportion to their Guilt but here all are equally guilty of the same offence and it seems to be a contradiction to say that the Plaintiff is injured by one to the value of 50 l. and by the other to the value of 1000 l. when both are equally Guilty Every Defendant ought to answer full as much as the Plaintiff is damnified now how is it possible he should be damnified so much by one and so little by the other But notwithstanding this Opinion Iudgment was afterwards given for the Plaintiff Peak versus Meker IN an Action on the Case for Words the Plaintiff declared that he was a Merchant and bred up in the Church of England and that when the present King came to the Crown the said Plaintiff made a Bonfire at his Door in the City of London and that the Defendant then spoke of him these words for which he now brought this Action viz. He innuendo the Plaintiff is a Rogue a Papist Dog and a pitiful Fellow and never a Rogue in Town has a Bonfire before his Door but he The Plaintiff had a Verdict and 500 l. Damages were given A Writ of Error was brought but it was adjudged without argument that the words were actionable Joyner versus Pritchard AN Action was brought upon the Statute of R. II. Admiralty for prosecuting of a Cause in the Admiralty Court which did arise upon the Land it was tried before the Chief Iustice in London and a Verdict for the Plaintiff Mr. Thompson moved in Arrest of Iudgment for that the Action was brought by Original in which it was set forth that the Defendant prosecut fuit adhuc prosequitur c. in Curia Admiralitat now the prosequitur is subsequent to the Original and so they have recovered Damages for that which was done after the Action brought Curia These words adhuc prosequitur must refer to the time of suing forth this Original like the Case of a Covenant for quiet Enjoyment and a breach assigned that the Defendant built a Shed whereby he hindred the Plaintiff that he could not enjoy it hucnsque which word must refer to the time of the Action brought and not afterwards Iudgment was given for the Plaintiff Dominus Rex versus ........ AN Information was brought against the Defendant for Forgery Forgery setting forth that the Defendant being a man of ill fame c. and contriving to cheat one A. did forge quoddam scriptum dated the 16th day of October in the year 1681. continens in se scriptum obligatorium per quod quidem scriptum obligatorium praed A. obligatus fuit praed Defend in quadraginta libris c. He was found Guilty and afterwards this Exception was taken in arrest of Iudgment Viz. That the Fact alledged in the Information was a contradiction of it self for how could A. be bound when the Bond was forged 2. It is not set forth what that scriptum obligatorium was whether it was scriptum sigillatum or not Curia The Defendant is found Guilty of the forging of a Writing in which was contained quoddam scriptum obligatorium and that may be a true Bond. Iudgment was arrested MEMORANDUM On Tuesday April the 27th Sir Thomas Powes of Lincolns-Inn was made Sollicitor General in the Place of Mr. Finch and was called within the Bar. Hanchet versus Thelwal IN Ejectment a special Verdict was found Devise What words in a Will make an Estate for Life and what in Tail in which the Case did arise upon the construction of the words in a Will Viz. The Testator being seised in Fee had Issue Two Sons and Four Daughters He made his Will and devised his Estate being in Houses by these words Viz. Irem I give and bequeath to my Son Nicholas Price my Houses in Westminster and if itplease God to take away my Son then I give my Estate to my four Daughters naming them share and share alike and if it please God to take away any of my said Daughters before Marriage then I give her or their part to the rest surviving And if all my Sons and Daughters dye without Issue then I give my said Houses to my Sister Anne Warner and her Heirs Nicholas Price entred and died without Issue then the four Sisters entred and Margaret the eldest married Thellwel and died leaving Issue a Son who was the Lessor of the Plaintiff who insisted upon his Title to a fourth part of the Houses The Question was what Estate the Daughters took by this Will whether joint Estates for Life or several Remainders in Tail If only joint Estates for Life then the Plaintiff as Heir to his Mother will not be entituled to a fourth part if several Remainders in Tail then the Father will have it during his Life as Tenant by the Curtesie This Case was argued this Term by Mr. Pollexfen for the Plaintiff And in Hillary Term following by Councel for the Defendant The Plaintiffs Council insisted that they took joint Estates for Life and this seemed to be the intent of the Testator by the words in his Will the first Clause whereof was Viz. I give and bequeath my Houses in W. to Nicholas Price Now by these words an Estate for Life only passed to him and not an Inheritance for there was nothing to be done or any thing to be paid out of it 2. The next Clause is Viz. If it please God to take away my Son then I give my Estate to my four Daughters share and share alike Now these words cannot give the Daughters a Fee-simple by any intendment whatsoever but if any word in this Clause seems to admit of such a Construction it must be the word Estate which sometimes signifies the Land it self and sometimes the Estate in the Land But here the word Estate cannot create a Fee-simple because the Testator gave his Daughters that Estate which he had given to his Son before and that was only for Lise Then follow the words share and share alike and that only makes them Tenants in Common 3. The next Clause is Viz. If it please God to take away any of my said Daughters before Marriage then I give her or their part to the rest surviving These words as they are penned can have no influence upon the Case 4. Then followeth the last Clause Viz. And if all my Sons and Daughters dye without Issue then I give c. These words create no Estate tail in the
computation of the price of Provisions and other Necessaries in 2 H. 5. and how they encreased in Value from that time till the Queen's Reign it may be reasonably affirmed that 40 s. per Annum about the time when that King lived would bear an equal proportion to 40 l. a year in her Reign and if so it may as reasonably be said that 4 l. per Annum in her days would almost bear the like proportion to 80 l. per annum now because of the vast encrease of Riches by Commerce and otherwise in this last Age and such an Estate doth now qualifie a Man to be of the Grand Jury The 40 s. per annum in King H's Reign was esteemed a sufficient Estate to supply all the common Necessities of Life Wheat being then sold for 12 d. per Quarter and good Gascoign Wine for 40 s. per Tun. It was an Age when 20 Marks per Annum was a very good Allowance to maintain a Student at the Inns of Court but too great a Charge for a Commoner to bear and therefore the Lord Chancellor Fortescue tells us that none but the Sons of Noblemen in Hospitiis illis Leges addiscebant The Jurors in those days were all Knights but are now mean and illiterate persons for 't is a very poor Estate which qualifies them for that Service How can Matters of Fact which often require great Examination be tryed by Men of such narrow Capacities which are generally found amongst Men of 10 l. per Annum for so it will be so long as the Degrees of Fortune make such a vast inequality amongst us Experience teacheth us that Men of such low Fortunes and whose Education is generally amongst the Beasts of the Plow have not the same sense of Honour and Vertue with Men of more elevated Qualities and Conversation there must be danger of Subornation and Perjury among such Jurors And what will the villanous Judgment in Attaint signifie I mean in respect to their Estates viz. That their Goods be confiscate their Lands and Possessions seised into the King's Hands their Houses demolished their Woods felled and their Meadows plowed This is a very dreadful Sentence to a Man of a good Estate which by the very Form of this old Judgment every Juror was supposed to have but 't is an empty sound to a Man of 10 l. per Annum who cannot have all those Possessions and but a very small proportion of either It may be therefore thought necessary that a farther Provision be made that none should be impanelled to try such Issues but Men of 40 l. per Annum or at least such as like the Jurors in Attaint qui multa majora habent Patrimonia than what will qualifie a Petty Juror at this day Gentlemen The following Collection is the Product of your Labours It was borrowed from you at the Bar and 't is but just to restore it I know Men have generally very faint Inclinations to approve any Writings beside their own and seldom declare in favour of a Book till they hear what success it has in the World and even then are biassed by the Multitude who very often condemn without reading or read without Understanding I have heard it often objected though I am still to learn upon what accompt that we have too many Printed Books of the Law already and that it was more certain and intelligible when fewer Volumes of it were published I must confess some of the late Reports are collected with very little Judgment But still there is a necessity of new Books tho' not of such for I would feign know how any Lawyer can now be able to advise his Client with the help and direction only of the Old Books 'T is true we have but few of them but 't is because in former Ages all Causes where the thing in demand did not exceed 40 s. were tried either in the County Court in the Hundred Court or in the Court Baron of the Mannor In those days the great Courts of Record at Westminster were not so full of Suitors as now When Bracton wrote the Justices in Eyre who had the same Power with our Justices of Assise went their Circuits but once in seven years and a long time afterwards even in the Reign of King Henry the Eighth the Judges would often rise from the Bench in Term-time without hearing a Motion or trying of a Cause and I think the Practice did not much encrease till this last Age for Anno 10 Eliz. there was but one Serjeant at the Common-Pleas Barr for a whole Term together and that was Serjeant Bendloes and I do not read that he had any Business there Nay at that time the Court of Chancery had no greater share of Practice than the Courts of the Common Law for in the two and twentieth Year of King Henry the Eighth Sir Thomas Moor being then Lord Chancellor did usually read all the Bills which were exhibited into that Court but Business is now so much encreased that all the Council can scarce find time enough to read the Briefs of such Bills which are filed every Term. But the Law hath now its Residence in Westminster-Hall most Causes of Value are there determined and the great Number of Country Attornies in our days who according to my Lord Coke's Opinion by dayly multiplying Suits have so wonderfully encreased the Business of those Courts that it seems very necessary that the judicial determinations there should by new Books be transmitted to future Ages And though some Cases in this Collection which were adjudged in the late Reign may not have the Authority of Presidents because they taste a little of the Times wherein the Administration of Justice was not so nicely regarded as the Dispensation of such things which were then thought Political Rights yet the Reader will find some good Arguments of Learned Men then at the Bar who endeavoured to support our sinking Laws I do acknowledge that if Men were just honest and impartial to themselves and others there would be no occasion for Books of this nature and because they are not so I will not make an Apology for the Publishing of this I think the Book being done with so much Care may be of good use to the Professors of the Law but submit it to your Judgments I confess I am led by my Profession to Affairs of this nature though my Circumstances disingage me from the suspicion of being an Author Vale. A TABLE OF THE CASES Contained in the THIRD PART OF Modern Reports A. ALdridge versus Duke 110 Ashcomb versus Inhabitants Hundred de Eltham 287 Ayres versus Huntington 251 B. BAxter's Case 68 Baldwyn versus Flower 120 Ball versus Cock 140 Barker Mil ' versus Damer 336 Barnes versus Eggard 39 Beak versus Tyrrwhite 194 Banson versus Offley 121 Bishops their Case 212 Bisse versus Harcoutt 281 Blaxton versus Stone 123 Boyle versus Boyle 164 Boson versus Sandford 321 Bowyer versus Lenthal 190
quam ad illud facere debet solet And it was the Opinion of a * Justice Doderidge in Surry and Piggots Case Pop. 171.27 Assise placito 8. Br. Prescription 49. Rast Entr. 441 Tit. Nusance learned Iudge that the words currere consuevit solebat did supply a Prescription or Custom Thus it was in an Assise of Nusance wherein the Plaintiff set forth that he had a Fountain of Water currentem usque ad rotam molendini c. and that the Defendant divertit cursum aquae and this was held good The Cases of stopping up of Lights and diverting of Water-courses are not parallel the Prescription to Lights must be ratione loci and therefore if a Man will erect a new House and a Stranger will stop the Lights 't is an injury done and the Action may be maintained upon the Possession Lutterel 's Case was grounded upon the Possession for upon the Plaintiff Cottell 's own shewing the Prescription was gone because he set forth that he had pulled down the old Mills and that the Defendant Lutterel diverted the Water from running to those Mills which the Plaintiff newly built All which prove that a Prescription goes to the Right but a possession is sufficient to support an Action against a Tort-fesor Lastly Slackman vers West Palmer 387. 2 Cro. 673. in the Case of a Common or a Rent which cannot pass without Deed if the Plaintiff shews a Que Estate he must produce the Deed by which it was granted but where he prescribes for a Way he may set forth his Estate without shewing how he came by it because 't is but a Conveyance to the Action which is grounded upon the disturbance done to the Possession Cur. The word solet implies Antiquity and will amount to a Prescription and solitus cursus aquae running to a Mill makes the Mill to be antient for if it be newly erected there cannot be solitus cursus aquae towards that Mill For which Reasons the Iudgment in the Original Action was affirmed in Hillary Term Primo Willielmi But the Chief Iustice was of Opinion that if the Cause had been tried upon such a Oeclaration that the Plaintiff ought to prove his Prescription or else he must be Nonsuit Anonymus ONE was Indicted for drinking of an Health to the Pious Memory of Stephen Colledge who was Executed at Oxford for High Treason He was Fined 1000 l. and had Sentence to stand in the Pillory and was ordered to find Sureties for his good Behaviour Rex versus Rosewel THE Defendant was a Non-conformist Minister and Indicted for High-Treason in Preaching of these words viz. Why do the People innuendo the People of England make a flocking to the King innuendo Carolum Secundum under pretence of curing the Kings Evil which the King cannot do but we are the Priests and Prophets to whom they ought to flock who by our Prayers can heal them We have had two Wicked Kings now together innuendo Carolum Primum Carolum Secundum who have suffered Popery to be introduced under their Noses whom I can liken to none but wicked Jeroboam and if they innuendo the People c. would stand to their Principles I make no doubt but to COnquer our Enemies innuendo the King and all his Loyal Subjects with Rams Horns broken Pitchers and a Stone in a Sling as in the time of old Vpon this Indictment he was arraigned and pleaded Not Guilty and was Tried at Bar and found Guilty of High Treason upon the Evidence of two Women And the Court having assigned Mr. Wallop Mr. Pollexfen and Mr. Bampfield to be his Council they moved in Arrest of Iudgment First That the Words discharged of the Innuendo's if taken seperate or altogether have no tendency to Treason The first Paragraph doth not import any Crime and to say that we have had two wicked Kings may be a Misdemeanor but 't is not Treason either by intendment of the Death of the King or by levying War against him The Crime seems to consist in the next Words which are if they would stand to their Principles c. This seems to stir up the People to Rebellion but as they are placed in the Indictment they will not admit of such a Construction neither as they have reference to the words precedent or as they stand by themselves The words which go before are viz. We have had two wicked Kings together 'T is not expressed what Kings or when they Reigned which is very uncertain Et si ipsi ad fundamentalia sua starent which word ipsi is relative and must refer ad proximum antecedens and then it must be ipsi Reges which is the proper and natural sense of the words But now if the Innuendo's must be incerted 4 Co. 17. it must be under some Authority of Law either to design the person or the thing which was not certain before that the intention of the Party speaking may be more easily collected and this is the most proper Office of an Innuendo It will not change the meaning of the words Hob. 45. 2 Cro. 126. for that is to make them still more incertain Now most of the Innuendo's in this Indictment are naught because they do not ascertain the subject matter First by the word People innuendo the People of England may be as well intended any other People because there was no previous Discourse of the People of England Then follow these words We have had two wicked Kings now together innuendo King Charles the First and Second which may be as well intended of King Ethelred and Alfred because the words denote a time past and therefore cannot possibly intend the King of whom there was no precedent Discourse And the Rule is De dubiis generalibus benignior Sententia recipienda est Besides those words are insensible and indeed impossible for we cannot have two wicked Kings together it ought to be successively Then to say we shall Conquer our Enemies cannot be intended the Enemies of the King because the word Enemies is of a large sense for Man by reason of his Sins and Infirmities hath many Enemies and possibly such might be intended If therefore it be doubtful what Enemies were meant if it shall not be in the power of a Clerk by an innuendo to make Words of another sense than what they will naturally bear nor to help where they are insensible as in this Case If there was no precedent Discourse either of Kings People or Enemies which must be proved by the Evidence then is this Indictment naught and therefore Iudgment ought to be arrested Mr. Attorney and Solliciter contra 'T is laid in this Indictment that the words were spoken to stir up Rebellion and to depose the King and 't is so found by the Verdict of twelve Men. That which aggravates the offence is That it was spoken in a publick Assembly to the People which must be intended the People of England
fearing that this Daughter might be stoln from her applies her self to my Lady Gore and entreats her to take this Daughter into her House which she did accordingly My Lady had a Son then in France she sent for him and married him to this Ruth she being then under the Age of sixteen years without the Consent of her Mother who was her Guardian The Question was whether this was a Forfeiture of her Estate during Life It was proved at the Trial that the Mother had made a Bargain with the Lessor of the Plaintiff that in case he recovered she should have 1000 l. and the Chirds of the Estate and therefore she was not admitted to be a Witness The Plaintiff could not prove any thing to make a Forfeiture and therefore was nonsuited The Chief Iustice said that the Statute was made to prevent Children from being seduced from their Parents or Guardians by flattering or enticing Words Promises or Gifts and married in a secret way to their disparagement but that no such thing appeared in this Case for Dr. Hascard proved the Marriage to be at St. Clements Church in a Canonical Hour and that many People were present and that the Church Doors were open whilst he married them Anonymus BY the Statute of 21 Jacobi 't is Enacted 21 Jac. c. 23. That no Writ to remove a Suit out of an Inferior Court shall be obeyed unless it be delivered to the Steward of the same Court before Issue or Demurrer joined so as the Issue or Demurrer be not joined within six Weeks next after the Arrest or Appearance of the Defendant In this Case Issue was joined and the Steward refused to allow the Habeas Corpus and the Cause was tried but not before an Utter Barrister as is directed by the Statute Curia The Steward ought to return the Habeas Corpus and they having proceeded to try the Cause no Utter Barister being Steward let an Attachment go Claxton versus Swift Hill 1 Jac. 2. Rot. 1163. THE Plaintiff being a Merchant brought an Action upon a Bill of Exchange If the Plaintiff recover against the Drawer of a Bill he shall not afterwards recover against any of Endorsers setting forth the Custom of Merchants c. and that London and Worcester were ancient Cities and that there was a Custom amongst Merchants that if any person living in Worcester draw a Bill upon another in London and if this Bill be accepted and endorsed the first Endorser is liable to the payment That one Hughes drew a Bill of 100 l. upon Mr. Pardoe paiable to the Defendant or Order Mr. Swift endorsed this Bill to Allen or Order and Allen endorsed it to Claxton The Mony not being paid Claxton brings his Action against Hughes and recovers but did not take out Execution Afterwards he sued Mr. Swift who was the first Endorser and he pleads the first Recovery against Hughes in barr to this Action and avers that it was for the same Bill and that they were the same Parties To this Plea the Plaintiff demurred and the Defendant joyned in the Demurrer Mr. Pollexfen argued that it was a good Barr because the Plaintiff had his Election to bring his Action against either of the Endorsers or against the Drawer but not against all and that he had now determined his Election by suing the Drawer and shall not go back again though he never have Execution for this is not in the nature of a joint Action which may be brought against all 'T is true that it may he made joint or several by the Plaintiff but when he has made his choice by suing of one he shall never sue the rest because the Action sounds in Damages which are uncertain before the Iudgment but afterwards are made certain transeunt in rem judicatam and is as effectual in Law as a Release As in Trover the Defendant pleaded that at another time the Plaintiff had recovered against another person for the same Goods so much Damages 2 Cro. 73. Yelv. 65. Brown versus Wootton and had the Defendant in Execution and upon a Demurrer this was held a good Plea for though in that Case it was objected that a Iudgment and Execution was no satisfaction unless the Mony was paid yet it was adjudged that the cause of Action being against several for which Damages were to be recovered and because a Sum certain was recovered against one that is a good discharge against all the other but 't is otherwise in Debt because each is liable to the entire Sum. Chief Iustice If the Plaintiff had accepted of a Bond from the first Drawer in satisfaction of this Mony it had been a good Barr to any Action which might have been brought against the other Indorsers for the same and as this Case is the Drawer is still liable and if he fail in payment the first Endorser is chargeable because if he make Endorsement upon a bad Bill 't is Equity and good Conscience that the Endorsee may resort to him to make it good But the other Iustices being against the Opinion of the Chief Iustice Iudgment was given for the Defendant Pawley versus Ludlow DEBT upon a Bond. The Condition was That if John Fletcher shall appear such a day coram Justitiariis apud Westm c. that then c. The Defendant pleaded that after the 25th day of November and before the day of the appearance he did render himself to the Officer in discharge of this Bond and to this the Plaintiff demurred Darnel for the Defendant admitted that if a Scire Facias be brought against the Bail upon a Writ of Error 3 Bulstr 191. 2 Cro. 402. who plead that after the Recognizance and before the Iudgment against the Principal affirmed he rendred himself to the Marshal in discharge of his Bail that this is not a good Plea but that the Sureties are still liable 3 Jac. cap. 8. because by the Statute they are not only liable to render his Body but to pay the Debt recovered But if a Iudgment be had in this Court 1 Rol. Abr. 334. pl. 11. and a Writ of Error brought in the Exchequer-Chamber and pending that Writ of Error the Principal is rendred the Bail in the Action are thereby discharged It was argued on the other side E contra that this is not the like Case of Bail upon a Writ of Error for the Condition of a Recognizance and that of a Bond for Appearance are different in their nature the one is barely that the Party shall appear on such a day the other is that he shall not only appear and render his Body to Prison but the Bail likewise do undertake to pay the Debt if Iudgment should be against the Principal Now where the Condition is only for an Appearance at a day if the Party render himself either before or after the day 't is not good Chief Iustice If the Party render himself to the Officer before the
that is to make them Iudges whether this Duty is payable or not and so the Courts of Westminster who are the proper Iudges of the Revenue of the King who by this means will be without an Appeal will be excluded Curia This Court may take Cognizance of this Matter as well as in Cases of Bastardy 't is frequent to remove those Orders into this Court though the Act says That the two next Justices may take order as well for the punishment of the Mother as also for the relief of the Parish where it was born except he give Security to appear the next Quarter Sessions The Statute doth not mention any Certiorari which shews that the intention of the Law-makers was that a Certiorari might he brought otherwise they would have enacted as they have done by several other Statutes that no Certiorari shall lie Therefore the meaning of the Act must be that the determination of the Iustices of the Peace shall be final in Matters of Fact only as if a Collector should affirm that a person hath four Chimnies when he hath but two or when the Goods distrained are sold under the value and the Overplus not returned but the Right of the Duty arising by virtue of this Act was never intended to be determined by them Then the Order was filed and Mr. Pollexfen moved that it might be quashed for that by the Statute of 14 Car. 2. 14 Car. 2. c. 10. the Occupier was only chargeable and the Land-Lord exempted Now by the Proviso in that Act such a Cottage as is expressed in this Order is likewise exempted because 't is not of greater value than 20 s. by the year and 't is not expressed that the person inhabiting the same hath any Lands of his own of the value of 20 s. per annum nor any Lands or Goods to the value of 10 l. Now there having been several abuses made of this Law to deceive the King of this Duty occasioned the making of this subsequent Act. The abuses were these viz. The taking a great House and dividing it into several Tenements and then letting them to Tenants who by reason of their poverty might pretend to be exempted from this Duty The dividing Lands from Houses so that the King was by these Practices deceived and therefore in such Cases the charge was laid upon the Land-Lord but nothing of this appearing upon the Order it was therefore quashed Brett versus Whitchot IN Replevin Lands not exempted from repairing of the High-ways by grant of the King The Defendant avowed the taking of a Cup as a Fine for a Distress towards the repairing of the High-way The Plaintiff replyed and set forth a Grant from the King by which the Lands which were chargeable to send Men for the repairing c. were exempted from that Duty And upon a Demurrer the Question was Whether the Kings Letters Patents are sufficient to exempt Lands from the Charge of the repairing of the High-ways 2 3 Ph. Mar. c. 8. which by the Statute of Philip and Mary and other subsequent Statutes are chargeable to send Men for that purpose And it was argued that such Letters Patents were not sufficient because they were granted in this Case before the making of the Statute and so by consequence before any cause of Action and to prove this a Case was cited to this purpose In 2 E. 2 Inst 569. 3. an Action was brought against an Hundred for a Robbery upon the Statute of 13 E. 1. The Bishop of Litchfield pleaded a Charter of R. 1. by which that Hundred which was held in Right of his Church was exempted c. But it was held that this Charter could not discharge the Action because no such Action was given when the Letters Patents were made but long afterwards Iudgment was given for the Avowant Upton versus Dawkin TRespass quare vi armis liberam piscariam he did break and enter and one hundred Trouts ipsius Quer. Trespass for taking Fish ipsius querentis in libera piscaria not good in the Fishery aforesaid did take and carry away Vpon Not guilty pleaded there was a Verdict for the Plaintiff and this Exception was taken in arrest of Iudgment viz. For that the Plaintiff declared in Trespass for taking so many Fish ipsius Quer. in libera piscaria which cannot be because he hath not such a property in libera piscaria to call the Fish his own Pollexfen contra If there had not been a Verdict such a Construction might have been made of this Declaration upon a Demurrer but now 't is helped and the rather because a Man may call them pisces ipsius in a free Fishery for they may be in a Trunk so a Man may have a property though not in himself as in the Case of Iointenants where 't is not in one but in both yet if one declare against the other unless he plead the Iointenancy in Abatement the Plaintiff shall recover But notwithstanding the Iudgment was reversed Dominus Rex versus ...... THE Defendant was indicted for Barretry Barretry the Evidence against him was that one G. was arrested at the Suit of C. in an Action of 4000 l. and was brought before a Iudge to give Bail to the Action and that the Defendant who was a Barrister at Law was then present and did sollicite this Suit when in truth at the same time C. was indebted to G. in 200 l. and that he did not owe the said C. one farthing The Chief Iustice was first of Opinion that this might be Maintenance but that it was not Barretry unless it appeared that the Defendant did know that C. had no cause of Action after it was brought If a Man should be arrested for a trifling Cause or for no Cause this is no Barretry though 't is a sign of a very ill Christian it being against the express Word of God But a Man may arrest another thinking he hath a just cause so to do when as in truth he hath none for he may be mistaken especially where there hath been great dealings between the Parties But if the design was not to recover his own Right but only to ruine and oppress his Neighbour that is Barretry A Man may lay out mony in behalf of another in Suits at Law to recover a just Right and this may be done in respect of the Poverty of the Party but if he lend mony to promote and stirr up Suits then he is a Barretor Now it appearing upon the Evidence that the Defendant did entertain C. in his House and brought several Actions in his Name where nothing was due that he was therefore guilty of that Crime But if an Action be first brought and then profecuted by another he is no Barretor though there is no cause of Action The Defendant was found guilty DE Termino Paschae Anno 2 Jac. II. in Banco Regis 1686. Coram Edwardo Herbert Mil ' Capital ' Justic
forth that the Plaintiff was amerced and that it was affered at the Court and so he hath confounded the Office of the Iurors and Affearers together which he ought not to do for he should be amerced to a certain Sum Hob. 129. Rol. Abr. 542. and not in general which Sum may be mitigated or affered by others If it had been a Fine 8 Co. 38. 1 Leon. 142. it need not be affered because that is imposed by the Court but this is an Amerciament which is the act of the Jury and therefore it must be affered 3. The chiefest Exception was to the matter of the Warrant viz. the Defendant sets forth that he seised by virtue of a Precept from the Dean and Chapter whereas he ought to shew it was directed to him from the Steward of the Court and then to set forth the Warrant without which he cannot justifie to distrain for an Amerciament And of this Opinion was the whole Court and therefore Iudgment was given for the Plaintiff in Michaelmas Term Primo Will. Mariae If it had been in Replevin where the Defendant made cognizance in the right of the Lord it might be well enough as here pleaded but where 't is to justifie by way of excuse there you must averr the Fact and alledge it to be done and set forth the Warrant it self 3 Cro. 698.748 1 Leon. 242. and the taking virtute Warranti for a Bayliff of a Liberty cannot distrain for an Amerciament by virtue of his Office but he must have a Warrant from the Steward or Lord of the Leét for so doing The other Exception that the Amerciament ought to be to a Sum Rast Ent. 606. Co. Ent. 665. the Presidents are otherwise for an Amerciament per duodecim probos legales homines adtunc ibidem jurat ad 40 s. afferat ' is well enough but the Warrant is always set forth Dominus Rex versus Darby THE Defendant was indicted for speaking of scandalous words of Sir J.K. a Justice of the Peace Viz. Sir J.K. Indictment for Scandalous words is a buffle-headed Fellow and doth not understand Law he is not fit to talk Law with me I have bafled him and he hath not done my Clyent Justice Mr. Pollexfen for the Defendant said that an Indictment would not lye for these words because not spoken to the Party in the exceution of his Office but behind his back it will not lye for irreverent words but for Libels and Writings because such are publick but words are private offences But the Court being of Opinion that an Indictment would lye where an Action would not because it respects the publick Peace and that an Action would not lye in this Case unless the party had a particular loss Sid. 65. 2 Cio 5 8. and therefore it hath been held not to be actionable to call a Iustice of Peace Fool Ass Coxcomb He then took Exceptions to the Form of the Indictment 1. There is no place of Abode laid where the Defendant did inhabit which is expresly required by the Statute of H. 5. Viz. 1 H. 5. cap. 5 That in Indictments there shall be addition of the Estate Degree c. and of the Towns Hamlets Places and Counties where the Defendants dwell And by the Statute of H. 6. 8 H. 6. cap. 12 which gives the Iudges power to amend Records in affirmations of Iudgments such defects which are named in the Statute of H. 5. are excepted and therefore where a Writ of Error was brought to reverse an Outlawry upon the Statute of 5 Eliz. for Perjury 2 Cro. 167. the Defendant was Indicted by the Name of Nicholas Leech de Parochia de Aldgate and did not shew in what County Aldgate was and for this cause it was reversed 2. The Caption is coram Justiciariis ad pacem dicti Domini Regis conservand ' and the word nunc is left out It was the Opinion of Iustice Twisden that it ought to be nunc conservand ' Sid. 422. for otherwise it may be the Peace of King Stephen The Councel on the other side said that it was a new Doctrine that the King shall not have the same Remedy by an Indictment which the Subject may have by an Action What is the meaning of the words of all Commissions de propalationibus verborum As to the first Exception they said that the Indictment was certain enough for the Defendant is laid to be de Almondbury in the West-Riding of Yorkshire To the second Exception they said that ad pacem conservand ' without nunc is well enough for it cannot be intended upon this Indictment that they were Iustices to preserve the Peace in any other Kings Reign and what was quoted out of Siderfin is but the Opinion of one single Iudge This is a Scandal upon the Government and 't is as much as to say that the King hath appointed an ignorant Man to be a Iustice of Peace for which an Indictment will lye And of that Opinion was the whole Court and gave Iudgment accordingly Ball versus Cock A Writ of Covenant did bear Teste the first day of Trinity Term Error to reverse a Fine where the Cognisor died after the Caption and before it passed the King's Silver retornable tres Trinitatis and it was taken by Dedimus 30 Julii A Writ of Error was brought to reverse this Fine and the Error assigned was that the Cognizor died after the Caption and before the Enrolment at the King's Silver Office It was argued by the Councel for the Plaintiff in the Writ of Error that a Fine Sur Cognizance de droit c. is said to be levied when the Writ of Covenant is returned and the Concord and King's Silver which is an antient Revenue of the Crown pro licencia concordandi duly entred for though the Cognisor dieth afterwards Dyer 220. b. 5 Co. 37. Cro. Eliz. 469. the Fine is good and the Land passeth but if the King's Silver be not entred the Fine may be reversed by Writ of Error for it is an Action and Iudgment and the death of either Party abates it If it should be objected that this cannot be assigned for Error because 't is against the Record which is Placita terrae irrotulat de Termino Sanctae Trinitatis anno primo Jacobi c. 'T is true an Error cannot be assigned against the very essence of a Record but in the matter of time it may and so 't is in this Case 'T is like Syer's Case 32 Eliz. 3 Inst 230. 4 Co. Hind's Case 10 H. 7.24 who was indicted for a Burglary supposed to be done primo Augusti and upon the Evidence it appeared to be done primo Septembris and though he was acquitted of the Indictment for that reason viz. because the Iudgment relates to the day of the Indictment yet it was resolved by all the Iudges of England that the very day needs not be set down in
contra As to the first Exception it was said that the Wardmote Court was held before the Mayor for the Iuries there are not to try any Matter but only to make Presentments which are carried before the Mayor Exceptions were taken against the Indictment which was for not serving at a Wardmote Inquest for such a year 1. Because 't is a thing not known at the Common Law that a Man should be of a Iury for a whole year The Indictment was that the Defendant was an Inhabitant of such a place and elected a Iury Man 2. But doth not say that he ought to hold the Office to which he was elected It was quashed Calthrop versus Axtel THE Husband being seized in Fee had Issue two Daughters Ejectment upon the Statute of Ph. Mar. for marrying under 16 without the Parents Consent Antea Hicks versus Gore and dyed his Wife survived who was then by Law Guardian in Socage to her Children one of which under the Age of sixteen years married one Mr. B. without her Mother's Consent by reason whereof her Estate became forfeited during life to her Sister by vertue of the Statute of 4 5 Ph. Mar. who now brought an Ejectment which was tried at the Bar. The Mother was produced as a Witness at this Trial against the married Daughter but it was objected against her that she was Tenant in Possession of the Lands in question under her other Daughter that some part of the Estate was in Houses and that she had made Leases thereof to several Tenants for 99 years c. and covenanted with the Lessees that she together with the Infants when of Age shall and will joyn to do any â—â—â—rther Act for the quiet enjoyment thereof therefore this is like the Case of a Bailiff or Steward who if they put themselves under such Covenants shall never be admitted as Witnesses in any Cause where the Title of such Lands shall come in question The Proofs that the Mother did not consent were That she made Affidavit of the whole matter and got the Lord Chief Iustice's Warrant to search Mr. B's Houss for her Daughter and upon application made to my Lord Chancellor she obtained a Writ of Ne exeat Regnum and got a Homine replegiando and gave notice of the Fact in the Gazett and exhibited an Information in the Crown Office against Mr. B. and his Father and his Maid Attorny General contra E contra The Preamble of this Act will be a Guide in this Case which is For that Maids of great Substance in Goods c. or having Lands in Fee have by Rewards and Gifts been allowed to contract Matrimony with unthrifty persons and thereupon have been conveied from their Parents by sleight or force c. Then it enacts That no person shall convey away a Maid under 16 years without her Parents Consent which Assent is not necessary within the meaning of this Act unless the Child be taken away either by sleight or force which must be proved The Mother was no good Guardian to these Children for she did set up one G. to be a Curator for her Daughter in the Spiritual Court to call her self to an accompt for the personal Estate of which her Husband died possessed she having given Security to exhibit a true Inventory This Accompt was stated in the Prerogative Court between her and the Curator to 300 l. only for which she gave Bond when in truth the Personal Estate was worth more and afterwards obtained a Decree in Chancery thinking thereby to bind the interest of the Infants In this Case it was said that there must be a continued refusal of the Mother for if she once agree though afterwards she disassent yet 't is an assent within the Statute There must likewise be proof of the stealing away Obrian versus Ram. Mich. 3 Jac. 2. Rot. 192. Angl ' ss Entry of a Writ of Error out of Ireland DOminus Rex mandavit praedilecto fideli Conciliario suo Willielmo Davis Militi Capitali Justic suo ad placita in Curia ipsius Domini Regis coram ipso Rege in Regno suo Hiberniae tenend ' assign ' Breve suum Clausum in haec verba ss Jacobus secundus Dei gratia Angliae Scotiae Franciae Hiberniae Rex Fidei defensor c. pradilecto fideli Conciliario nostro Willielmo Davis Militi Capital ' Justic ' nostro ad placita in Curia nostra coram nobis in Regno nostro Hiberniae tenend ' assign ' salutem Quia in Recordo Processu acetiam in redditione Judicii loquelae quae fuit in Curia nostra coram nobis in praed Regno nostro Hiberniae per Billam inter Abel Ram Mil. nuper dict Abel Ram de Civitate Dublin Alderman ' Elizabetham Grey de Civitate Dublin Viduam de quodam debito quod idem Abel a praefat ' Elizabetha exigebat Quae quidem Elizabetha postea cepit Donnough Obrian Armigerum in virum suum obiit Necnon in adjudications executions ejusdem Judicij super Breve nrÌ„um de Scire FacÌ„ extra eandem Curiam nostram coram nobis emanen ' versus ipsum praed In adjudicatione Executionis super Scire Fac. Donnogh in loquela praed ut dicitur Error intervenit manifestus ad grave dampnum ipsius Donnogh sicut ex querela sua accepimus Nos Error si quis fuerit modo debito corrigi partibus praed plenam celerem justiciam fieri volentes in hac parte vobis mandamus qd ' si judicium in loquela praed ' reddit ' ac adjudicationem executionis judicii praed super breve nostrum de Scire facÌ„ praed adjudicatÌ„ tunc record ' process tam loquel ' quam adjudicationis executionis judicii praed ' cum omnibus ea tangen ' nobis sub sigillo vestro distincte aperte mittatis hoc Breve ita qd ' ea habeamus in Crastino Ascentionis Domini ubicunque tunc fuerimus in Angl ' Ut inspect ' record ' process praed ' ulterius inde pro Errore illo corrigendo Fieri fac ' quod de jure fuerit faciend ' Et Scire fac praefat ' Abel qd ' tunc sit ibi ad procedend ' in loquela praed ' faciend ' ulterius recipiend ' quod dicta Curia consideraverit in praemissis Teste meipso apud Westm xxii Januarii Anno Regni nostri secundo Price Record ' Process The Return loquelae unde infra fir mentio cum omnibus ea tangen ' coram Dno Rege ubicunque c. ad diem locum infracontent ' mitto in quodam Record ' huic Brevi annex ' Scire feci Abel Ram qd ' tunc sit ibi ad procedend ' in loquela praed prout interius mihi praecipitur Respons ' W. Davis Placita coram Domino Rege apud the Kings Courts de Termino Sanctae Trinitatis Anno Regni Domini
the first words the Legacy is released then the subsequent words viz. all Actions Suits and demands whatsoever which he had against the Defendant as Executor of Lawford must mean something 'T is true where general words are at the beginning of a Release and particular words follow if the general words agree with those which are particular the Deed shall be construed according to the special words But where there are such words at first and the conclusion is with general words as 't is in this Case both shall stand for the Rule is Generalis clausula non porrigitur ad ea quae antea specialiter sunt comprehensa 8 Co. 154. b. These words do also Release not only such Actions which he had in his own Right but also as Executor to Mr. Lawford If a Man hath a Lease in right of his Wife as Executrix to her former Husband and he grants all his Right and Title therein by this Grant the Right which he had by his Wife doth pass for the word His doth imply a propriety in possession But per totam Curiam Curia Iudgment was given for the Plaintiff If an Executor hath Goods of the Testators and also other Goods in his own Right and then grants omnia bona sua in strictness the Goods which he hath as Executor do not pass because they are not bona sua but so called because of the Possession which he hath and therefore it must be a great strein to make general words which are properly applicable to things which a Man hath in his own Right to extend to things which he hath as Executor It was never the intent of the Party to release more than what he had in his own Right and that appears by the Recital of the Legacy of 5 l. and therefore the words which follow must have a construction according to the intent of Donning at the time of the making the Release and shall be tied up to the foregoing words and then nothing will be discharged but the Legacy As if a Lease for years be made Dyer 255. and the Lessor enters into a Bond that he will suffer the Lessee quietly to enjoy during the Term without trouble of the Lessor or any other person if an Entry should be made upon the Lessee without the procurement or knowledge of the Lessor the Condition is not broken for the last words are tied up to the word suffer If the Legacy had not been released by particular words it would not have been discharged by a Release of all Actions and Demands whatsoever and therefore there would be a great inconvenience if these general words should be construed to Release any thing besides this Legacy for suppose there are two Executors and one refuseth to Administer but meeting with a Debtor of the Testator gives him a Release of all Actions will this amount to an acceptance of the Administration Certainly it will not The words in this Case are not of that extent as to Release Actions as an Execuror for 't is a Release which goeth to the right 'T is like the Case where one of the Avowants released the Plaintiff after the taking of the Cattel 1 Roll. Rep. 246. which was adjudged void upon a Demurrer because he had not then any Suit or Demand against the Plaintiff but had distreined the Beasts as Bayliff and in right of another Iustice Dolben cited a Case adjudged in B. R. in the year 1669. it was between Stokes and Stokes The Plaintiff released all which he had in his own Right there was a Bond in which his Name was used in Trust for another and afterwards he brought an Action of Debt upon that Bond to which the Release was pleaded The Plaintiff replied that the Release was only of all such Actions which he had in his own right and not such which he had in the right of another upon this they were at Issue and the Plaintiff had a Verdict and Mr. Sympson moved in Arrest of Iudgment that this Bond must be in his own Right But the Court affirmed the Iudgment Anonymus AN Action on the Case was brought for these words Words where actionable without a Colloquium viz. He stole the Colonel's Cupboard-Cloth It was made a Question whether these words were actionable there being no precedent discourse laid in the Declaration either of the Colonel or his Cupboard-Cloath But the Court held the words actionable for 't is a charge of Felony and if such words as now laid in this Declaration are not actionable any person may be scandalized for 't is and must be actionable to say of a Man that he stole my Lord's Horses or the Parson's Sheep tho' it doth not appear to what Lord or Parson they did belong Rex versus Silcot THE Defendant was convicted before a Iustice of the Peace Conviction for keeping a Gun not having a 100 l. per Annum and doth not say when 33 H. 8. c. 6. upon the Statute of H. 8. for keeping of a Gun and upon proof it did appear that he had not 100 l. per Annum The Record of the Conviction was removed into B. R. and this Exception was taken to it viz. non habuisset 100 l. per Annum but doth not say when for it may be that he had one hundred pound per Annum at the time when he kept a Gun but not when he was Convicted It was answered that the words non habuisset shall relate to all times past and is as much as to say nunquam habuit and the conclusion being contra formam Statuti must explain such words which seem to be doubtful This was compared to the Case where Debt was brought upon the Statute of R. 1 R. 3. c. 3. 3. for taking away of Goods before the Plaintiff was convicted of the Felony laid to his charge contra formam Statuti he being only committed upon suspicion now though he did not alledge that the Goods were taken Cro. Eliz. 749. for this cause it shall be intended they were so taken when no other cause is shewed Curia This is a conviction before a Iustice of the Peace and therefore the time when the Offence was committed should be certainly alledged viz. that the Defendant praedict Anno die had not 100 l. per Annum for which reason it was quashed Bisse versus Harcourt Hill 1 Gulielmi Rot. 217. THE Plaintiff brought an Action for 400l Replication not well concluded for so much Mony had and received of him by the Defendant The Defendant pleaded an Attainder of High Treason in Abatement and therefore ought not to answer the Declaration The Plaintiff replied that after he was Attainted and before this Action brought he was pardoned and concludes thus Unde petit Judicium dampna sua The Defendant demurs and for cause shewed Rast Ent. 663. b. 681. Co. Ent. 160. that the Replication is not well concluded for dampna sua
3 Willielmi Judicium Iudgment was given for the Defendant absente Dolbin Iustice who was also of the same Opinion It was held that the Custom was well alledged both as to the manner and matter 't is true all Customs must have reasonable beginnings but it would be very difficult to assign a lawful commencement for such a Custom as this is so it would be for the Custom of Gavelkind or Burrough English which are circumscribed to particular places and since 't is sufficient to alledge a Custom by reason of the place where t is used it may be as reasonable in this Case to say that there hath been an ancient Ferry-Boat kept in this place 't is but only an inducement to the Custom which did not consist so much in having a Right to the Passage as to be discharged of Toll This might have a lawful beginning either by a Grant of the Lord to the Ancestors of the Defendant or by the agreement of the Inhabitants A Custom alledged for all the Occupiers of a Close in such a Parish to have a Foot-way Cro. Car. 419. Co. Lit. 110. b. Cro. Eliz. 746. 1 Roll. Rep. 216. c. is not good the reason is because the Plaintiff ought to prescribe in him who hath the Inheritance but where a thing is of necessity and no manner of profit or charge in the Soil of another but only a thing in discharge or for a Way to a Market or to be quit of Toll in such cases not only a particular person but the Inhabitaints of a Vill may alledge a Prescription This may be as well alledged as a Custom to turn a Plow upon another mans Land or for a Fisherman to mend his Nets there 'T is good as to the matter for 't is only an easment 't is like a Custom alledged for a Gateway or Watercourse and for such things Inhabitants of a Vill Cro. Eliz. 441. or all the Parishioners of a Parish may alledge a Custom or Vsage in the place 2. Point But as to the Plea in Bar 't is not good because the execting of a Bridge is but laying out a Way t is a voluntary act and no man by reason of his own act can be discharged of what he is to do upon the interest he hath in the Ferry If the Defendant had petitioned the King to destroy the Ferry and got a Patent to erect a Bridge and had brought a Writ ad quod dampnum and it had been found by inquisition to be no damage to the People then he might safely have built this Bridge 3. But notwithstanding the Plea is not good yet the Plaintiff can have no advantage of it because he cannot have an Action on the Case for this matter for by his own shewing 't is a common Passage Cro. Car. 132 167. 1 Inst 56. a. Cro. Eliz. 664. 13 Co. 33. Davis 57. which is no more than a common High-way now for disturbing him in such a Passage no Action on the Case will lie unless he had alledged some particular damage done to himself for if he could maintain such an Action any other person is entituled to the like and this would be to multiply Suits which the Law will not allow but hath provided a more apt and convenient remedy which is by presentment in the Leet If Toll had been extorted from him F. N. B. 94. 22 H. 6.12 then an Action on the Case had been the proper remedy but no such thing appeared upon this Declaration Prince 's Case THE Suggestion in a Prohibition was that Prince was seized of the Rectory of Shrewsby ut de feodo jure and that he being so seised de jure ought to present a Vicar to the said place but that the Bishop of the Diocess had of his own accord appointed a person thereunto This Exception was taken to it viz. He doth not say that he was Impropriator but only that he was seised of the Rectory in Fee so it not appearing that he had it Impropriate he ought no to present the Vicar Iustice Dolben replied That in several places in Middlesex the Abbots of Westminster did send Monks to say Mass and so the Vicaridges were not endowed but he put in and displaced whom he pleased That he had heard my Lord Chief Iustice Hales often say that the Abbot had as much reason to displace such Men as he had his Butler or other Servant Curia Declare upon the Prohibition and try the Cause Harrison versus Hayward Pasch 2 Gulielmi Rot. 187. AN Agreement was made to assign a Stock upon Request When a thing is to be done upon request the performance must be when the person requires it and the Defendant cannot plead that he was ready to assign after the promise made and for non-performance an Action was now brought setting forth the Agreement and that the Plaintiff did request the Defendant at such a time c. The Defendant pleaded that he was ready to assign the Stock after the promise made c. and upon a Demurrer it was ruled if the thing was not to be done upon Request then the Defendant was bound to do it in a convenient time after the promise but it being to be done upon request the time when the Plaintiff will require the performance of the Agreement is the time when the Defendant must do it Iudgment pro Quer. Thompson versus Leach WRit of Error upon a Iudgment in Ejectment given in the Common-Pleas Surrender not good without acceptance of the Surrendree 2 Vent 198. the Case upon the special Verdict was thus Viz. Simon Leach was Tenant for Life of the Lands in question with Remainder in contingency to his first second and third Son in Tail Male Remainder to Sir Simon Leach in Tail c. This Settlement was made by the Will of Nicholas Leach who was seised in Fee The Tenant for Life two months before he had a Son born did in the absence of Sir Simon Leach the Remainder man in Tail seal and deliver a Writing by which he did Grant Surrender and Release the Lands which he had for Life to the use of Sir Simon Leach and his Heirs and continued in possession five years afterwards and then and not before Sir Simon Leach did accept and agree to this Surrender and entred upon the Premisses But that about four years before he thus agreed to it Simon Leach the Tenant for Life had a Son born named Charles Lessor of the Plaintiff to whom the Remainder in contingency was thus limited The Tenant for Life died then Sir Simon Leach suffered a Common Recovery in order to bar those Remainders 1. The Question was whether this was a legal and good Surrender of the Premisses to vest the Freehold immediately in Sir Simon Leach without his Assent before Charles Leach the Son of Simon Leach the Surrenderor was born so as to make him a good Tenant to the Precipe upon which the Recovery was
Proctor 2. Whether a sufficient cause was returned to displace Mr. Leigh As to the first It was held that a Mandamus doth lie because 't is a publick Office and concerns the Administration of Iustice and the Proctors being limited to a certain number viz. 28. if many of them should be displaced it would be a means to hinder Iustice This Court doth judicially take notice of the Ecclesiastical Courts by prohibiting them by taking notice of their Excommutions or of any proceedings when they are against the Law of the Land A Proctor doth the Business in that Court as as Attorney in B. R. and Notice is taken of his place as judicially as of any other Officer Sid. 94 152. and as to this purpose those Officers cannot be distinguished if therefore a Mandamus hath been granted to restore an Attorny why not a Proctor The Plaintiff hath no remedy but by a Mandamus because an Assize will not lie of this Office 't is admitted that an Action on the Case may be brought but then Damages only are to be recovered and not the Office and it would be very inconvenient to leave it to a Iury to give such Damages as the Party may sustain for the loss of his Livelyhood 'T is no Objection to say that there is a proper Visitor in this Case to whom to appeal viz. to the Archbishop for they have not set out any such visitatorial power in the Return or if any that he had power to restore him But if such Power had appeared upon the Return yet a Proctor ought not to appeal to the Archbishop or to the Guardian of the Spiritualties Sede vacante because ' is in effect to appeal to themselves for the Dean of the Arches before whom the Appeal must be brought is an Officer appointed by the Archbishop himself and hath the same Iurisdiction with him Besides the Proctors there are not properly under any Visitatorial Power they have a particular Iurisdiction within themselves and their Courts have been held in several places as at Bow Christchurch c. Then as to the Causes of this removal 't is returned 1. For receiving and prosecuting of a Cause without the advice of an Advocate contrary to a Statute made by the Archbishop Abbot 2. For refusing to pay 10 s. set upon him as a Tax towards the Charges of the House Now neither of these are sufficient Causes to displace him As to the first Cause if that Statute gives them any such Power 't is void because it deprives a Man of his Freehold which cannot be done but by the Law of the Land 'T is not said when this Offence was committed for it may be before a general Pardon and then 't is discharged But if it is an Offence that will not make a Forfeiture without warning and no such thing appears upon the Return 11 Co. 99. a. for if he had notice publickly he might have offered something in excuse of himself as Sickness c. which might have been allowed by the Court. 'T is as unreasonable a Law to put the Clients to unnecessary Charges to advise with an Advocate upon an ordinary Libel as it would be for an Attorny of the King's Bench to advise with Council to draw a Declaration on a Bond. 2. They do not shew by what Authority they may levy a Tax neither do they set forth what Tax was made in the whole so that it might appear that 10 s. was a proportionable part for him to pay neither doth it appear when this Tax was made or that Mr. Leigh was a Proctor when it was made E contra E contra This is not an Offence in matter of Iudgment but 't is a Misdemeanour and punishable 'T is very like the Case of Fellows of Colleges who have proper Visitors and therefore the King's Bench will not grant a Mandamus in such Cases A Proctor is an Officer of a Court different from the Courts of Law and therefore the King's Bench cannot take notice of his Office judicially they have no other way of punishing of a Proctor but by displacing of him and if this should be remedied by a Mandamus then those persons may offend without punishment 'T is not like the Case of an Attorny for he being an Officer of the King's Bench the Court doth judicially take notice of him but not of a Proctor 'T is more like the Case of a Steward of a Court Baron which is of private Iurisdiction and for which a Mandamus hath been denied 'T is like Midleton 's Case who was Treasurer of the New River Water 't is true a Mandamus was granted to restore him to that Office but it was only de bene esse to bring the Matter before the Court though that was a Corporation settled by Act of Parliament 'T is also like the Cases of Abbots Priors and Monks for whom a Mandamus was never granted because they are Ecclesiastical Corporations and have proper Visitors which is now by Law devolved upon the Archbishop So also Lay Corporations have Visitors which are their Founders and their Heirs 'T is an Objection of no force to say that this Appeal must be to the Dean of the Arches which is to appeal to the same person because though 't is true that the Dean is constituted by the Archbishop yet when once he is invested with that Office he is in for his Life and the Archbishop cannot afterwards come into that Court and execute the Office of Dean himself so he is not the same person neither hath he the same Iurisdiction Curia A Proctor is not an Officer properly speaking 't is only an Employment in that Court which acts by different Laws and Rules from the King's Bench they have an original Iurisdiction over this matter and a Mandamus is in the nature of an Appeal which will not be granted where they have such a Iurisdiction but when they exceed it and encroach upon the Common Law then Prohibitions are granted 'T is for this reason that in cases of Divorce which are of a higher nature than this case is no Appeal can be to the King's Bench for it would be an endless business for persons to Appeal ab uno ad aliud examen and therefore credit must be given to the determinations of those Courts who have such Original Iurisdiction Officers are incident to all Courts 1 Roll. Abr. 526. and must partake of the nature of those several and respective Courts in which they attend and the Iudges or those who have the supream Authority in such Courts are the proper persons to censure the Behaviour of their own Officers and if they should be mistaken the King's Bench cannot relieve for in all cases where such Iudges keep within their Bounds no other Court can correct their Errors in Proceedings Now for a Church-Warden of a Parish Clerk an Attorny or the like all these are Temporal Officers and are to be ordered by the Temporal Laws
certain or 't is not good 134 4. Must be taken strictly when it goes to the destruction of an Estate 224 5. A Custom that every Copyholder who leases his Land shall forfeit it doth not bind an Infant 229 6. Amongst Merchants where it must be particularly set forth 226 7. It must be certain and therefore where it was laid for an Infant to sell his Land when he can measure an Ell of Cloth 't is void for the incertainty 290 8. To have solam separalem pasturam hath been held good 291 9. Prescription must have a lawful commencement but 't is sufficient for a Custom to be certain and reasonable 292 10. Whether a Custom likewise ought to have a lawful commencement 293 D. Damages See Ejectment 3. Ioint Action 2. Trespass 2. Baron and Feme brought an Action for words spoken of the Wife and concluded ad damnum ipsorum 't is good for if she survive the Damages will go to her 120 Det See Admittance 5. Assignment 1. Iudgment 1. Quantum meruit Where 't is brought upon a Specialty for less than the whole Sum it must be shewed how the other was discharged 41 2. Whether it lies for a Fine upon an admission to a Copyhold Estate for it doth not arise upon any Contract 240 3. There must be a personal Contract or a Contract implyed by Law to maintain an Action of Debt ibid. Deceit See Action on the Case Deputy See Office 6 7 9. Devise See Tail Where it shall not be extended by implication 82 2. Where the word Estate passeth a Fee where not 45 105. 3. I give All to my Mother passeth only an Estate for Life for the Particle All is a Relative without a Substantive 32 4. To A. and the Testator's Name is omitted in the Will yet 't is good by averring his Name and proving his Intention to devise it 217 5. The Testator after several Specifick Legacies and Devises of Lands gave all the rest and remaining part of his Estate c. by those Words the Reversion in Fee passed 228 6. By the Devise of an Hereditament the Reversion in Fee passeth 229 Disseisin See Election 1. Interest 2. The Son Purchased in Fee and was disseised by his Father who made a Feoffment with Warranty the Son is bound for ever 91 2. Lessor made a Lease for Life and died his Son suffered a Common Recovery this is a Disseisin ibid. 3. Where an Estate for Life or years cannot be gained by a Disseisin ibid. 4. A wrongful Entry is never satisfied with any particular Estate nor can gain any thing but a Fee-simple 92 Distribution Before the Statute if there was but one Child he had a right of Administration but it was only personal so that if he died before Administration his Executor could not have it 62 E. Ejectment THE Demise was laid to be the 12th of Junii habendum a praed duodecimo die Junii which must be the 13th day by vertue whereof he entred and that the Defendant Postea eod 12 die Junii did Eject him which must be before the Plaintiff had any Title for his Lease commenced on the 13th day not good 199 2. De uno Messuagio sive Tenemento not good because the word Tenementum is of an incertain signification but with this addition vocat ' the Black Swan 't is good 238 3. If the Term should expire pending the Suit the Plaintiff may proceed for his Damages for though the Action is expired quoad the possession yet it continues for the Damages 249 Election Where the Cause of Action ariseth in two places the Plaintiff may choose to try it where he pleases 165 2. Tenant at Will made a Lease for years the Lessee entreth this is no disseisin but at the Election of him who had the Interest in it 197 Entry In Feoffments Partitions and Exchanges which are Conveyances at the Common Law no Estate is changed until actual Entry 297 2. Lease for years not good without Entry 297 3. Tenant for Life Remainder in Tail Male levied a Fine and made a Feoffment having but one Son then born and afterwards had another Son the eldest died without Issue the Contingent Remainder to the second was not destroy'd by this Feoffment for it was preserved by the right of Entry which his elder Brother had at the time of the Feoffment made 305 Escape Debt upon an Escape would not lie at the Common Law against the Goaler it was given by the Statute of W. 2. 145 2. The superior Officer is liable to the voluntary Escapes suffered by his Deputy unless the Deputation is for life 146 3. If an Escape is by negligence it must be particularly found 151 4. A person was in Execution upon an erroneous Judgment and escaped and Judgment and Execution was had against the Gaoler and then the first Judgment was reversed yet that against the Gaoler shall stand 325 Evidence See Witness An Affidavit made in Chancery shall not be read as Evidence but only as a Letter unless Oath is made by a Witness that he was present when it was taken before the Master 36 2. What shall be Evidence of a fraudulent Settlement ibid. 3. An Answer of a Guardian in Chancery shall not be read as Evidence to conclude an Infant 259 4. Whether the return of the Commissioners in a Chancery Cause that the person made Oath before them is sufficient Evidence to convict of Perjury 116 5. Whether a true Copy of an Affidavit made before the Chief Justice is sufficient to convict the person for the like Offence 117 6. A Verdict may be given in Evidence between the same Parties but not where there are different persons unless they are all united in the same interest 142 7. Conviction for having two Wives shall not be given in Evidence to prove the unlawfulness of a Marriage but the Writ must go to the Bishop because at Law one Jury may find it no Marriage and another otherwise 164 Exchange Ought to be executed by each Party in their Life time otherwise 't is void 135 Excommunication Stat. 5 Eliz. For not coming to the Parish Church the Penalties shall not incurr if the person hears Divine Service in any other Church 42 2. The Causes are enumerated in the Statute which must be contained in the Significavit otherwise the Penalties are not to incurr 89 Executor See Grants Notice 5. Whether an Executor de son tort can have any interest in a Term for years 91 93 2. An Executor may sell the Goods before Probate 92 3. May pay Debt upon a simple Contract before a Bond of which he had no notice 115 4. Whether an Action of Debt will lie against an Executor upon a Mutuatus 5. By what words he hath an Authority only without an Interest in the thing devised 209 210 6. He had both Goods of his Testator and of his own and granted omnia bona sua that which he hath as Executor will not pass for
ought to be left out and of that Opinion was the Court and therefore a Rule was made that he might discontinue this Action without Costs Mordant versus Thorold Hill 1 2 Gulielmi Rotulo 340. THE Plaintiff brought a Scire Fac. upon a Iudgment The Case was thus Viz. Ann Thorold recovered in Dower against Sir John Thorold in which Action Damages are given by the Statute of Merton 20 H. 3. c. 1. Sir John Thorold brought a Writ of Error in B. R. and the Iudgment was affirmed Then the Plaintiff in Dower brought a Writ of Enquiry for the Damages and married Mr. Mordant and died before that Writ was executed Mr. Mordant takes out Letters of Administration to his Wife and brought a Sci. Fa. upon the Iudgment and the question was whether it would lie This depended upon the construction of the Statute of King Charles the II. which enacts That in all personal Actions 17 Car. 2. c. 8. and real and mixt the death of either party between the Verdict and the Iudgment shall not hereafter be alledged for Error so as such Iudgment be entred within two Terms after such Verdict Serjeant Pemberton insisted that this was a judicial Writ and that the Administrator had a right to it though the Wife died before the Profits were ascertained by the Writ of Enquiry 't is no more than a plain Sci. Fa. upon a Iudgment which an Executor may have and which was never yet denied though this seems to be a Case of the first Impression The Council on the other side argued that 't is true an Executor may have a Scire Facias upon a Iudgment recovered in the life of the Testator by reason only of such Recovery but this Scire Facias is brought for what never was recovered because the Wife died before any thing was vested in her for the Iudgment will stand so as to effect the Lands but not for the Damages Curia When a Statute which gives a remedy for mean Profits is expounded it ought to be according to the Common Law Now where entire Damages are to be recovered and the Demandant dies before a Writ of Enquiry executed the Executor cannot have any remedy by a Scire Facias upon that Iudgment because Damages are no duty till they are assessed Sed adjornatur DE Term. Sanctae Trin. Anno 2 Gulielmi Mariae Regis Reginae in Banco Regis 1690. Shotter versus Friend Vxor ' Hill 2 Willielmi Rot. 39. THE Plaintiff and his Wife declared upon a Prohibition setting forth Proof by one Witness good in the Spiritual Court that John Friend on the 13th of October 22 Car. 2. made his Will by which he bequeathed to Mary Friend 10 l. to be paid to her within two years after his decease and that he made Jane the Wife of the Plaintiff Shotter Executrix and dyed that the said Executrix whilst sole and unmarried paid the said Legacy to Mary Friend who is since dead that Thomas Friend the Husband of the said Mary did after her death demand this Legacy in the Consistory Court of the Bishop of Winton that the Plaintiff pleaded payment and offered to prove it by one single Witness which Proof that Court refused though the Witness was a person without Exception and thereupon Sentence was given there against the Plaintiff which Sentence was now pleaded and upon Demurrer to the Plea The Question was whether upon the whole matter the Defendant should have a Consultation or whether a Prohibition should be granted because the proof by one Witness was denied by that Court. It was argued that the Defendant should not have a Consultation because Matters Testamentary ought to have no more favour than things relating to Tythes in which Cases the Proof by one Witness hath been always held good So 't is in a Release to discharge a Debt which is well proved by a single Testimony and it would be very inconvenient if it should be otherwise for Feoffments and Leases may come in question which must not be rejected because proved by one Witness A Modus decimandi comes up to this Case upon the Suggestion whereof Prohibitions are never denied and the chief reason is because the Spiritual Court will not allow a Modus to be any discharge of Tythes of Kind The Courts of Equity in Westminster-Hall give Relief upon a Proof by one Witness so likewise do the Courts of the Common Law if the Witness is a good and credible person 'T is true a Prohibition shall not go upon a Suggestion that the Ecclesiastical Court will not receive the Testimony of a single Witness If the Question is upon Proof of a Legacy devised or Marriage or not or any other thing which originally doth lie in the Cognizance of that Court but payment or not payment is a matter of Fact triable at the Law and not determinable there if therefore they deny to take the Evidence of a single Witness a Prohibition ought to go 2 Inst 608. 2. The Sentence is no obstacle in this Case because the Plaintiff had no Right to a Prohibition until the Testimony of his Witness was denied and Sentence thereupon given and this is agreeable to what hath been often done in cases of like nature As for instance Cro. Eliz. 88. Moor 907. Prohibitions have been granted where the Proof of a Release of a Legacy by one Witness was denyed So where the Proof of payment of Cythes for Pidgeons was denied upon the like Testimony Cro. Eliz. 666. Moor 413. 2 Rol. Rep. 439. 2 Rol Abr. 300. pl. 9. 299 pl. 14 17. Yelv. 92. Latch 117. 3 Bulst 242. Hutt 22. So where a Suit was for Subtraction of Cythes and the Defendant pleaded that he set them out and offered to prove it by by one Witness but was denied a Prohibition was granted And generally the Books are that if the Spiritual Court refuse such Proof which is allowed at the Common Law they shall be prohibited There is one Case against this Opinion which is that of Roberts in 12 Co. 12 Co. 65. Rep. but it was only a bare Surmise and of little Authority Those who argued on the other side held that a Consultation shall go E contra and that for two Reasons 1. Because a Prohibition is prayed after Sentence 2. Because the Ecclesiastical Court have an original Iurisdiction over all Testamentary things As to the first Point 'T is plain that if that Court proceed contrary to those Rules which are used and practised at the Common Law yet no Prohibition ought to go after Sentence but the proper remedy is an Appeal 2. It cannot be denied but that that Court had Cognizance of the principal matter in this Case which was a Legacy and Payment or not is a thing collateral Now wherever they have a proper Iurisdiction of a Cause both that and all its dependences shall be tried according to their Law which rejects the Proof by a single Witness
This was the Opinion of Iustice Popham and Williams in those times when most of the Cases cited on the other side were under debate In the Case of Brown and Wentworth a Revocation of a Will was offered to be proved by a single Witness in the Spiritual Court which being denied a Prohibition was prayed in B. R. Yelv. 92. but denied because the Will being the principal matter of which that Court had an original Iurisdiction therefore the Revocation thereof which was a collateral matter but depending upon the Principal shall be tried there for when the Original belongs properly to their determination all dependences thereon shall follow it and be tryed by them according to their Law In Easter-Term 4 Car. 1. this came to be a Question again 2 Cro. 264. 12 Co. 67. it was upon a Libel for a Legacy and Plene administravit pleaded which they endeavoured to prove by the Testimony of a single Witness and denied In that Case Croke and Yelverton Iustices were against the Prohibition because a Suit for a Legacy was a thing meerly Spiritual and Payment thereof is of the same nature so that the Ecclesiastical Court hath a proper Iurisdiction both of the Matter and the Proof By these Instances it may be seen that 't is not yet a settled Point that a Proof by one Witness in that Court is good Her 87. Sid. 161. for Prohibitions have been both granted and denied It cannot be a reason to grant a Prohibition to the Spiritual Court for refusing such Proof which is allowed at the Common Law because though the Proof by a single Witness is allowed at the Law yet 't is not a conclusive Evidence because the Iury who are of the Vicinage are supposed to know the Fact and may give a Verdict upon that knowledge without Proof or Witness as well as where there is but one In Michaelmas-Term following the Court were all of Opinion that no Consultation ought to go for as where the Ecclesiastical Court proceeds upon things meerly Spiritual no Prohibition is to be granted as in Suits about Probates of Wills c. so where they meddle with Temporal Matters or refuse to admit such Proof which is allowed at the Common Law no Consultation shall go If the Law should be otherwise it would be inconvenient for all Executors and Administrators for if they should be compelled to prove payment of Debts by two Witnesses they might often fail of that Proof and so pay the Mony twice Such Proof which is good at the Common Law ought to be allowed in their Court and at the Common Law 't is not necessary to prove a Payment of a Debt by two Witnesses They may follow their own Rules concerning things which are originally in their Cognizance but if any collateral Matter doth arise as concerning a Revocation of a Will or Payment of a Legacy if the Proof be by one Witness they ought to allow it Tythes are of Ecclesiastical Cognizance now if a Libel should be brought for Subtraction of Tythes and the Defendant proves by one Witness that he set them out from the nine parts tho' the Parson had not any notice of it which he is not to have at the Common Law though 't is otherwise by their Law that Court must allow this Proof otherwise a Prohibition must go 2. As to the other Point a Prohibition may be granted as well after as before Sentence but the Sentence in this Case is the very ground of the Prohibition Iustice Dolben cited a Case between Richardson and Desborow in B. R. Hill 1675. which was a Devise of a Legacy of 100 l. The Executor was sued who pleaded that the Testator owed another person the like Sum of 100 l. upon Bond which being paid he had not Assets ultra And upon Proof in the Spiritual Court it appeared there was but one Witness to the Bond which not being a good Proof of it in their Law there was a Sentence for the Payment of the Legacy and afterwards a Prohibition was granted upon the suggesting of this Matter Ashcomb versus Inhabitantes Hundredi de Elthorn Hill 1. Rot. 901. AN Action was brought upon the Statute of Winton for a Robbery done in the Parish of Hamonsdworth in Longford Lane in the said Hundred The Case was thus viz. A person was robbed who refused to make Oath whether the Hundred may be sued The Plaintiff employed one Coxhead his Servant to sell fat Cattle in Smithfield who sold them for 106 l. which Mony he delivered up in two Bags to one Strange a Quaker who was robbed in the Company of Coxhead he being also robbed of 12 s. They both gave notice of this Robbery to the Inhabitants of the next Village and Coxhead was examined by the Iustice of the Peace dwelling in the County and Hundred where the Robbery was committed pursuant to the Statute c. before whom he made Oath that he did not know any of the Robbers 27 El. c. 13. but Strange being a Quaker refused to be examined upon Oath Mr. Ashcomb the Master brought an Action against the Hundred and all this Matter was found specially Now the Question was whether the Action was well brought in the name of the Master and so whether the Hundred should be liable to pay the Mony of which the Quaker was robbed he refusing to be examined upon Oath In this Case the Statute of Queen Elizabeth was considered which was made in favour of the Hundred for it enacts That the Party robbed shall not maintain any Action against the Hundred except he give notice of the Robbery with convenient speed to the Inhabitants of some Town Vill or Hamlet near the place where he was robbed and except within twenty days next before the Action brought he be examined upon Oath before a Justice of the County inhabiting in the Hundred where the Robbery was committed or near the same whether he knew the Parties who robbed him or either of them It was agreed that the Master may have an Action for a Robbery committed upon the Servant but that is by vertue of the Statute of Winton Mich. 1658. The Case of Jones against the Hundred of Bromley is to that purpose which was a Robbery upon himself Wife and Servant the Mony being taken from the Servant and the Master made Oath that he did not know any of the Robbers but it happened the Servant did know one of them whose Name was Leonard of which he did then inform his Master and this Matter appearing to the Iury it was found specially and upon the Argument of that special Verdict these Points were resolved 1. That the Oath of the Master without the swearing of his Servant is good because the Servant had only the bare Custody of the Mony 2. That the Information then given by the Servant to the Master of his Knowledge of one of the Robbers did not oblige the Master because the Mony shall be said to