should be punished for it he conceived that there is a difference betwixt an Officer of an inferiour Court which ousts the Common Law of Jurisdiction and one of the four Courts at Westminster for where an Officer justifies an Act done by the command of an Inferiour Court he ought to shew precisely that it was in a Case within their Jurisdiction and he cited 20 H. 7. the Abbot of St. Albâ—rs case Justice Heath contrary the party is servant to the Court and if he have done his duty it should be hard that he should be punished for it and he agreed that there is a difference betwixt the Act of a Constable and a Justice of Peace and the Act of a Servant of a Court for the Servant ought to obey his Master and although it be an inferiour Court yet it is a Court of Record and confirmed by Act of Parliament and all that is confessed by the Demurrer Bramston Chief Justice that the Plea is naught because that it is too general and incertain true it is that it is hard that the Officer should be punished in this case for his obedience to which he is bound and it is as true that the Officer for doing of an act by the command of the Court whether it be just or unjust is excused if it appear that the Court hath Jurisdiction but here it doth not appear that the Court hath Jurisdiction and if the Court had not Jurisdiction then it is clear that the Officer by obeying the Court when they have not Jurisdiction doth subject himself to an Action of false imprisonment as it is in the Case of the Marshalsy in the 10 Rep. but it was adjorned c. The Bishop of Hereford and Okeleys Case 196. THe Bishop of Hereford brought a Writ of Error against Okeley to reverse a Judgment given in the Common Pleas the point was briefly this One under the age of twenty three years is presented to a Benefice Whether the Patron in this case shall have notice or that lapse otherwise shall not incur to the Bishop which is grounded upon the Statute of 13 Eliz. cap. 12. And upon debate by the Counsel of the Plaintiff in the Writ of Error that which was said being upon the general Law of notice nothing moved the Court against the Judgment given in the Common Pleas upon solemn debate as it was said and therefore they gave day to shew better matter or else that Judgment should be affirmed The Reasons of the Judgment in the Common Pleas were two First upon the Proviso of the Statute which says That no Lapse shall incur upon any deprivation ipsâ— facto without notice Second reason was upon the body of the Act which is That admission institution and induction shall be void but speaks nothing of presentation so as the presentation remaining in force the Patron ought to have notice and that was said was the principal reason upon which the Judgment was given and upon the same reasons the Court here viz. Mallet Heath and Bramston Justices held clearly that the notice ought to be given or otherwise that Lapse shall not incur but they agreed that if the Act had avoided the presentation also that in such case the Patron ought to have taken notice at his peril being an avoydance by Statute if the Proviso help it not Mich. 17º of the King in the Common Pleas. 197. A. Said of B. that he kept false weights for which words B. brought an Action upon the case shewed how that he got his living by buying and selling but did not shew of what profession he was and by all the Court viz. Foster Reeve Crawley and Bankes in the Common Pleas the Action will not lie First because he doth not shew of what Trade or profession he was and it is too general to say that he got his living by buying and selling Secondly because although that he had shewed of what Trade he was as that he was a Mercer as in truth he was that yet the words are not actionable because there is nothing shewed to be done with them or that he used them and it can be no scandal if the words do not import an act done by the false weights for he may keep them and yet not use them and he may keep them that another do not use them and the keeping of false weights is presentable in Leet if the party use them otherwise not And where one said of another That he kept a false Bushel by which he did cheat and cousen the poor the same was adjudged actionable that is True and differs from this case for there he said he not only kept them but used them and cheated with them but it is otherwise in our case and this case was compared to Hobarts Reports where one said of another That he kept men which did rob upon the High-way and adjudged that the words were not actionable for he might keep them and not know of it Bankes the action upon the case for words is to recover damages and here it can be no damage First because he doth not shew of what profession he was and Secondly because although he had shewed it yet the words will not bear Action and Judgment was given against the Plaintiff 198. It was moved by Serjeant Wild That depositions taken in the Ecclesiastical Court might be given in evidence in a Trial in this Court and the Court was against it because they were not taken in a Court of Record and they said although the parties were dead yet they ought not to be allowed and by Bankes Chief Justice no depositions ought to be allowed which are not taken in a Court of Record and Foster and Reeve were of Opinion that although the parties would assent to it yet they ought not to be given in evidence against the constant rule in such case Crawley contrary for he said that a writing which by the Law is not Evidence might be admitted as Evidence by the consent of the parties 200. A man was bound to keep a Parish harmless from a Bastard-child and for not performance thereof the Obligee brought Debt upon the Bond the Defendant pleaded that he had saved the Parish harmless and did not shew how the Plaintiff replied and shewed how that the Parish was warned before the Justices of Peace at the Sessions of Peace and was there ordered by Record to pay so much for the keeping of the childe and because the Defendant had not saved him harmless c. The Defendant pleaded Nul tiel Record upon which the Plaintiff did demur And here two things were resolved First that the Plea Nul tiel Record upon an Order at Sessions of Peace is a good Plea because that an Order at the Sessions of Peace is a Record Secondly that notwithstanding Judgment ought to be given for the Plaintiff because the Dâ—fendants bar was not good in that he hath pleaded in the affirmative that he hath saved the Parish
it and if this City be well governed the whole Kingdom will fare the better and at this time we want many Aldermen and if these shall escape by the same reason others will do so and so the Government utterly should fail And where it was objected that it is usual to make them to take the Oath and accept a fine of them after To that he said that they would not do so now in this Case for he said that the party chosen is an able man and a man whom they respect and not his money And therefore he said that the custom to imprison him for refusing is more reasonable than if the custom were to fine him for he said that that Custom is the most reasonable custom which is most fit for the attaining of its end and he said that imprisonment is most apt for the obtaining the end for when we accept a fine there is no end of it for he may be chosen after and how can the Government be supported which is the end of the election if all should be fined wherefore the custom to imprison is more reasonable than if the custom had been to fine because it is more apt to attain the end which is to maintain the Government it is said in 38 Ass. p. 22 Br. Imprisonment 100. That it was resolved 2 Ma. in Parliament that imprisonment almost in all Cases is but to detain him untill he makes a fine and if he tender that to be discharged To that he said that the same ought to be understood where a fine is imposed but we do not intend to accept of a fine Further he said that there is a Judgment in the point and that is the Statute of 3 Iac. cap. 4. which injoyns an Oath for Recusants to take and for refusal that they shall be committed until c. here he said that an Act of Parliament hath done it in the like Case and therefore he conceived the custom reasonable and then he cited many presidents of commitment in this very Case 2 H. 5. Iohn Gidney was dealt with in the same manner 8 E. 4. Charles Faman was imprisoned 36 H. 8. Thomas White 1 Iac. Sir Thomas Middleton all which were imprisoned for refusing to take the Oath And lastly he cited one 3 Iac. and that was Sir William Bonds Case who was imprisoned by the Court of Aldermen for the same cause and it came judicially in question and he said that upon solemn debate it was resolved that he should be remanded wherefore he concluded that the commitment being by a Court of Record and that for a contempt against the Court and that for not observing of the customs of the City which is against the Oath of a freeman and which are confirmed by Act of Parliament that the commitment is good and lawful and therefore prayed that the prisoner might be remanded And now this Term it was resolved by the Judges upon solemn debate that the retorn notwithstanding any of the said exceptions was sufficient Justice Mallet the Retorn is sufficient in matter and form but for the matter of it I shall not ground my self upon the custom but upon part of the record which is upon the contempt for although I agree that Consuetudo loci is of great regard yet I conceive it is not strong enough to take away the liberty of a freeman by imprisonment Power to imprison the body of a freeman cannot be gained by prescription or grant and a grant is the ground of a prescription and therefore if it be not good in a grant not in a prescription and I conceive that it is the Common Law only or consent to an Act of Parliament that shall subject the body of a freeman to imprisonment and it is resolved in the 5 Rep. 64. acc in Clarkes Case and agreed in 8 Rep. 127. That a constitution cannot be made by a Corporation who have power to make by-Laws upon pain of imprisonment because it is against the Statute of Magna Charta wherefore I conceive the power to imprison the body of a freeman cannot be gained by custom but although it cannot be gained by custom yet Qui non transeunt per se transeunt per aliud it will pass as a thing incident to a Court of Record and therefore although I hold that the custom to imprison is not good yet I hold that the imprisonment here by a Court of Record for a contempt made unto it as appeareth by the Retorn here it was is good for in the conclusion of the Retorn it saith that he refused in contemptum Curiae c. And that it is incident to a Court of Record to imprison 8 Rep. 38. b. it is there resolved that for any contempt done to a Court of Record the Judges may impose a fine and 8 Rep. 59. b. It was resolved that to every fine imprisonment is incident Further I conceive that by the same reason that a Court of Record may imprison for a fine they may imprison for a contempt and in 8 Rep. 60. it is said that to imprison doth belong only to Courts of Record but which is in the point it is resolved 119. b. in Doctor Bonhams Case that it is incident to every Court of Record to imprison for a contempt done to the Court and he said that if a Court of Record should not have such a coercive power they should be in effect no Court. Wherefore he conceived that the refusing to take the Oath being a contempt and that to a Court of Record as it appeareth by the Retorn that they may lawfully commit him for this contempt For the objection that the debito modo electus without shewing how is too general To that he answered that it is only matter of inducement and there is no necessity to shew all matter of inducement For the objection that he had not notice of the election To that he answered that here is good notice for by the Retorn it appeareth that according to the custom after he was elected he was called to the Court and the Oath tendred to him and he refused which without doubt implies notice quod constat clare non debet verificare as after appearance all exceptions to process are taken away as the Books of 9 E. 4. 18. 12 H. 4. 17 18. and many other Books are so I say in this Case after appearance you shall never say that you had not notice for by your appearance you admit it and the process good For the Objection to the Oath that it is not good because it makes a man abjure his Trade which is against Law and Reason To that I answer that the Aldermen are intrusted with the assize of Bread and Ale and so with Wine and Fish and therefore as it is unreasonable so it is against the Law that during his Office he should use the Trade of which he hath Jurisdiction and power to regulate and to punish the misdemeanors
imply an affirmative will bear an Action 19. It was said to a Merchant That he was a cousening Knave And the Opinion of the Court was the chief Justice and Justice Crooke being absent that the words were not actionable because he doth not touch him in his Profession for the words are too general But it was said That to call him Bankrupt was actionable And mall Cases where a man is touched in his Profession the words are actionable But to call a Lawyer a Bankrupt is not actionable Justice Iones said that Serjeant Heath brought an Action for these words One said of him That he had Vndone many and it was adjudged actionable because he touched him in his Profession 20. Kingston upon Hull is a Particular and Limited Jurisdiction and they held Plea of a Bond which was made out of their Jurisdiction and thereupon a Capias was awarded against the Obligor who was arrested upon it and suffered by the Sheriff to escape And the Opinion of the Court was clear That no escape would lie against the Sheriff upon the difference in the case of the Marshalsea That if the Court hold Plea of a thing within their Jurisdiction but proceed erroneously that it is avoidable by Error but if they have not Jurisdiction of the cause all is void and coram non Iudice 11 H. 4. and 19 E. 4. Acc. So in the principal Case for they held Plea of a thing which was out of their Jurisdiction and therefore the whole proceeding being void no Action can lie against the Sheriff for there was no Escape 21. Where a man is Outlawed and the Outlawry reversed notwithstanding the Original doth remain and the cause that the Original was determined was the Outlawry and now Cessante causa cessat effectus 22. A man made a Lease for years with exception of divers things and that the Lessee shall have conveniens lignum non sâ—â—ccidendo c. vendendo arbores c. Now the Lessee cut down Trees and the Lessor brought an Action of Covenant and the Opinion of the Court was That the Action would lie and that it is as a Covenant on the part of the Lessee because the Law gives him reasonable Estovers and by this Covenant he abridgeth his Priviledge 23. Justice Iones said and so it was agreed by the Court In what case soever there is a Contract made to the Testator or the Intestate or any thing which ariseth by Contract there an Action will lie for the Executor or Administrator but Personal Actions die with the Testator or Intestate 24. The Administrators of an Executor shall not sue a Scire facias upon a Judgment given for the Testator because the Testator now died Intestate because there is no privity And so it hath been many times adjudged 1 Rep. 96. a. 5 Rep. 9. b. The Earl of Oxford and Waterhouse Case in a Writ of Error to reverse a Fine 25. WAterhouse levied a Fine the Earl of Oxford pleaded that he was beyond Sea at the time of the Fine levied Waterhouse replied That he came here into England in August within the five years and upon that they were at issue The Jury found that he came over in Iuly And notwithstanding the Opinion of the Court was clear That the Writ of Error did not lie For although the Jury have found that he came over in Iuly yet the substance of the matter is that he was in England so as he might have made his Claim and therefore the Fine should bar him And Justice Barckley compared it to the Case of 10 Eliz. Dyer 271. b. which Case is a Quaere in Dyer but Resolved in the 6 Rep. 47. a. A man brought Debt against an Heir who pleaded that he had nothing by Descent The Plaintiff pleaded that he had Assets in London and the Jury found Assets in Cornwal and good for the substance is whether he had Assets or not 26. If a Nobleman who is not a Baron or Earl of this Realm in an Action brought against him or by him be named Knight and Earl of such a place it is good because that although he cannot be sued or sue another by the name of Earl Baron c. yet by the name of Knight he may and that is sufficient 27. Writ of Error was brought here to reverse a Judgment given in Ireland it is a Supersedeas to the Execution for although the Record it self is not sent over for fear of losing the same in the water or otherwise yet a transcript is made thereof which is all one And Justice Barckley compared it to the Case where a Writ of Error is brought in this Court to reverse a Fine in the Common Pleas there the Record it self is not sent but a Transcript thereof because we have not a Cirographer to receive it but the Transcript is all one Sir John Compton's Case upon the Statute of Winchester 13 Ed. 1. and 27 Eliz. of Robberies 28. SIr Iohn Compton Knight brought an Action against the Hundred of Olison or the like name for a Robbery done upon Red-hill in the County of Surry within the aforesaid Hundred and the Robbery was done upon his man and five hundred and ten pounds was taken from him And in this Case it was agreed by the Justices That although there be a remisness or negligence in the party who was robbed to pursue the Robbers or that he did refuse to lend his Horse to make Hue and Cry yet this doth not take away his Action nor excuse the Hundred if notice be given with as much convenient speed as may be as the Statute of 27 Eliz. speaks for them to make Hue and Cry And although the Party who was robbed doth not know the Robbers at the present time and thereof takes his Oath before a Justice of Peace as the Statute of 27 Eliz. hath provided and afterwards comes to know them and so he affirm yet this doth not take away his Action And it was resolved also that notice given in one Hundred five miles from the place where he was robbed is sufficient and the reason is because that the party who is a stranger to the Country cannot have conusance of the nearest place or Town Chief Justice That notice given at one Town and Hue and Cry levied at another is good And the Jury found for the Plaintiff And thereupon a Quaere was made by one who was of Counsel with the Hundred Whether such persons who become Inhabitants after the Robbery and before the Iudgment whether they should contribute And Justice Barckly said That all who are Inhabitants at the time of the Execution should pay it 29. A Vicar cannot have Tithes but by Gift Composition or Prescription For all Tithes de jure do appertain to the Parson 30. A man was bound to the Good Behaviour for Suborning of Witnesses Plowden against Plowden 31. PLowden the Son brought Trespass against Plowden the Father for taking the Plaintiffs Wife cum bonis viri And
the Process was lest at the Defendants house being sixty miles from London and twelve pence to bear his charges which the party did accept And the party who served the Process promised the Defendant sufficient costs And here Mr. Iones who was of Counsel with the Defendant took three Exceptions 1. Because the Process was not served upon the Defendant as the Statute requires but a Note only thereof and it being a Penal Statute ought to be taken strictly 2. There was but 12 d. delivered to the Defendant at the time of the serving of the Process which is no reasonable sum for costs and charges according to the distance of place as the Statute speaks and therefore the promise that he would give him sufficient for his costs afterwards is not good 3. The party who recovers by force of this Statute ought to be a party grieved and damnified as the Statute speaks by the not appearance of the Witness and because the Plaintiff hath not averred that he had loss thereby by his not appearance therefore he conceived the Action not maintenable For the first the Court was clearly against him because it is the common course to put divers in one Process and to serve Tickets or to give notice to the first persons who are summoned and to leave the Process it self with the last only and that is the usual course in Chancery to put many in one Subpoena and to leave a Ticket with one and the Label with another and the Writ with the third and that is the common practice and so the Statute ought to be expounded But if there be one only in the Process there the Process it self ought to be left with the party For the second the Court did conceive That the acceptance should bind the Defendant but if he had refused it there he had not incurred the penalty of the Statute For he ought to have tendred sufficient costs according to the distance of the place which 12 d. was not it being 60 miles distant But for the third and last Exception the Court was clear of Opinion That the Action would not lie for want of Averment that the Plaintiff was damnified for the not appearance of the Defendant And so it was adjudged that the Plaintiff Nihil capiat per Billam 44. The Opinion of the Court was That whereas one said of another That he will prove that he hath stollen his Books that the words are actionable for they imply an affirmative and are as much as if he had said That he hath stollen my Books And so if I say of another That I will bring him before a Iustice of Peace for I will prove that he hath stollen c. although the first words are not actionable yet the last are Molton against Clapham 45. THe Defendant upon reading Affidavits in Court openly in the presence and hearing of the Justices and Lawyers said There is not a word true in the Affidavits which I will prove by forty Witnesses and these words were alledged to be spoken maliciously And yet the Court was clear of Opinion that they will not bear Action And the reason was because they are common words here and usual where an Action is depending betwixt two for one to say That the Affidavit made by the other is not true because it is in defence of his cause And so it was here The Defendant spake the words upon the reading of the Affidavits in a cause depending betwixt the Plaintiff and the Defendant And therefore if I say That J. S. hath no Title to the Land if I Claim or make Title to the Land Or if I say That J. S. is a Bastard and entitle my self to be right Heir the words are not actionable because that I pretending Title do it in defence thereof And Justice Barckley said That there are two main things in Actions for words the words themselves and causa dicendi and therefore sometimes although that the words themselves will bear Action yet they being considered causa dicendi sometimes they will not bear Action Now in our Case causa dicendi was in his own defence or his Title and therefore they will not bear Action 46. Outlawry was reversed for these two Errors 1. Because it was not shewed where the party Outlawed was inhabitant 2. Because it was shewed that Proclamations were made but not that Proclamation was made at the Parish-Church where c. Buckley against Skinner 47. THere was Exception taken because that the Defendant pleaded and justified the Trespass cum equis and said nothing to the Trespass done porcis bidentibus And the Opinion of the Court was That the Plea was insufficient for the whole And Justice Iones said That if several Trespasses are done to me and I bring Trespass and the Defendant justifie for one or two and sayeth nothing to the other that the whole Plea is naught because the Plea is intire as to the Plaintiff and the demurrer is intire also But Justice Barckley was of Opinion that the Plea was naught quoad c. only and that Judgment should be given for the other Vide 11. Rep. 6. b. Gomersall and Gomersalls Case 48. A man pleaded a descent of a Copy-hold in Fee The Defendant to take away the descent pleaded That the Ancestor did surrender to the use of another absque hoc that the Copy-holder died seised And the Opinion of the Court was That it was no good traverse because he traversed that which needed not to be traversed for being Copy-hold and having pleaded a surrender of it the party cannot have it again if not by surrender Like the Case of a Lease for years Helliers Case 6 Rep. 25. b. For as none can have a Lease for years but by lawful conveyance so none can have a Copy-hold Estate if not by surrender But if a man plead a descent of inheritance at the Common Law there the defendant may plead a feoffment made by the Ancestor absque hoc that he died seised because he may have an estate by disseism after the feofment Traverse of the descent and not of the dying seised is not good so was it adjudged in this Court Vide 24 H. 8. Dyer 49. It was moved in Arrest of Judgment upon an Action of Trespass upon the Statute of 2 E. 6. cap. 13. because that the Plaintiff said that the Defendant was Occupier only and did not shâ—w how he occupied or what interest he had And the 〈◊〉 â—pinion of the Court was that he need not because here he makes no Title and whosoever it be that taketh the Tithe is a Trespasser And therefore Justice Iones said That it was adjudged in this Court that an Action lieth against the disseisor for the Tithes so against a servant and so if one cut them and another carry them away an Action lieth against any of them 50. The Parish of Ethelburrow in London alledged a custome that the greater part of the Parishioners have used to
thereupon a Prohibition was granted And a Prohibition was granted in this Court upon this surmise That the Custome was that Tithes should not be paid of Pheasants 60. If there be no Venire facias it is not Error but it is helped by the Statute But if there be a Venire facias and it is erroneous it is not holpen by any Statute Trinity-Term 15º CAROLI in the Kings Bench. 61. A Man indicted others at the Sessions-house in the Old-Baily who were acquitted and the Defendants Counsel did remove the Indictment into the Kings Bench and prayed a Copy thereof to the end they might bring a Conspiracie or have other remedy for the wrong done unto them And it was denied by the whole Court unless the Recorder will say That there appeared malice in the prosecution For a man shall not be punished for lawful prosecution upon just ground without malice although the parties be acquitted by Law The King against the Inhabitants of Shoreditch 62. MAster Keeling Clerk of the Crown in the Kings Bench did exhibit an Information against the Inhabitants of Shoreditch for not repairing the High-way And the Issue was Whether they ought to repair it or no And it was said by the Court That by the Common Law the Inhabitants of a Parish ought to repair all High-ways lying within the Parish If prescription did not bind some particular person thereto which was not in this Case And in this Case some of the Inhabitants would have been Witnesses to prove that some particular Inhabitants lying upon the High-way had used time out of minde to repair it but were not permitted by the Court because they were Defendants in the Information wherefore the Jury found That the Inhabitants ought to repair the way 63. Two men and their wives were Indicted upon the Statute of Forcible Entry who brought a Certiorari to remove the Indictment into the Kings Bench. Some of them did refuse to be bound to prosecute according to the Statute of 21 Iac. c. 8. and therefore notwithstanding the Certiorari the Justices of Peace did proceed to the trial of the Indictment and here it was resolved That whereas the Statute is The parties Indicted c. shall become bound c. That if one of the parties offer to find Sureties although the others will not yet that the cause shall be removed for the denying of one or any of them shall not prejudice the other of the benefit of the Certiorari which the Law gives unto them And the Woman cannot be bounden And it was farther resolved that where the Statute saith That the parties Indicted shall be bound in the sum of ten pounds with sufficient Sureties as the Justices of the Peace shall think fit that if the Sureties be worth ten pounds the Justices cannot refuse them because that the Statute prescribes in what sum they shall be bound Like to the Case of Commission of Sewers 10 Rep. 140. a. That where the Statute of 3. H. 8. cap. 5. enables them to ordain Ordinances and Laws according to their wisdoms and discretions that it ought to be interpreted according to Law and Justice And here it was farther resolved that after a Certiorari brought and tender of sufficient Sureties according to the Statute all the proceedings of the Justices of Peace are coram non Iudice The Argument of the Lord Chief Iustice in the Case between James and Tintny in a Writ of Error to reverse Iudgment given in the Common Pleas for Tintney Defendant in a Replevin brought by James the Case was thus vis 64. STowel was Lord of a Mannor and Iames one of the Tenants and there the custome was That the Steward of the Mannor might make Laws and Ordinances for the well-ordering of the Common And the custome was also to Assess a penalty or a pain upon those who brake those Laws and Ordinances And also to prescribe to distrain for the penalty The Steward made an Ordinance That he who put his Cattle beyond such a bound that he should pay 3 s. 4 d. Iames offended against this Ordinance upon which the penalty was assessed and a distress taken by Tintny Defendant in the Replevin Plaintiff and Baily of the Lord of the Mannor And Judgment was given for him in the Common Pleas and damages assessed Upon which a Writ of Error was brought In this Case it was agreed by the whole Court that the Custom was reasonable And the difference taken where the Law or Ordinance takes away the whole profit of the Commoners and where it abridgeth it only or adds limits or bounds to it as in this Case And farther it was agreed That the Commoners are bound to take notice of these Ordinances But in this Case the Erâ—or which was assigned was this That damages were given for the Defendant where no damages ought to have been given And of that Opinion was the Lord chief Justice that no damages ought to have been given and with him agreed Justice Iones but Justice Crook and Justice Barckley è contra It is clear that at the Common Law the Defendant shall not have damages although as to some intent the Avowant be as it were a Plaintiff and Actor 21. H. 6. 2. 6. H. 4. 11. 35 H. 6. 47. Then the Question ariseth only upon these two Statutes viz. 7. H. 6. cap 4. 21. H. 8. c. 19. And first whether our Case be within the Letter of these Laws Admitting that not Whether within the mischief so as that it shall have the same remedy And I conceive it is not within the Letter or Equity of these Statutes Not within the Letter for they speak Where a man distrains for Rents Customs and Services or damage â—easant And in our Case he doth not distrain for any of them for it is manifest that he doth not distrain for Rents Services or Damage feasant And it is as clear that he doth not distrain for Customs for he distrained for a penalty assessed by Custom 1. In Alcocks case it was here resolved That where a prescription was alledged to distrain for an Estray and found for the Avowant that no damages should be in that case For it was here resolved that the Customs intended in 21 H. 8. cap. 19. are Customs which are Services 2ly I hold it not within the Equity for the mischief at the Common Law was That damages were not to be recovered for such Rents Services c. And this penalty is no Service And I conceive clearly That it was not the meaning of the Makers of the Act of Parliament to extend to such penalties And here I further take the difference which is in Pilfords case in the 10 Rep. 116. In all cases where a man at the Common Law cannot recover damages If a Statute give damages there he shall recover no costs for the same is an Act of Creation which gives remedy where none was given before But where there is an Act of Addition which increaseth the damages at the
it then a Prohibition shall be granted And note that it was said by Bankes Chief Justice that before the Statute of 1 Eliz. the Ecclesiastical Court might punish any person for not coming to Church pro reformatione morum salute animae 163. Where there are several Modus alledged there several Prohibitions shall be granted but where divers are sued joyntly and they alledge one Modus only there they shall have but one Prohibition by Reeve and Foster Justices the others being absent Pasch. 15º Car in the Kings Bench. Edwards and Rogers Case 164. THe Case was thus Tenant for life the Reversion to an Ideot an Unkle heir apparent of the Ideot levied a Fine and died Tenant for life died the Ideot died the only Question was Whether the Issue of the Unkle who levied the Fine should be barred or not Iones that it should his chief reason was because the Son must make his conveyance by the Father and as to him he is barred As in a Writ of Right he ought of necessity to name his Father and that by way of Title so here But Crooke and Barckley contrary and their reason was because that here the Issue of the Unkle doth not claim in the right line but in the collateral Secondly because the naming of the father here is not by way of Title but by way of pedigree only Note that Serjeant Rolls in the Argument of the Serjeants case which was the very point said that this case was adjudged according to the Opinions of Crooke and Barckley viz. that the fine should not bar the Issue The Serjeants Case aforesaid was Trin. 17 Car. 165. Payne the elder and Payne the younger were bound joyntly and severally in an Obligation to Dennis who afterwards brought Debt upon the Bond against both And after appearance Dennis entred into a Retraxit against Payne the younger and whether this were a discharge of the elder also was the Question And this Term it was argued by Maynard for the Defendant that it was a discharge of Payne the elder also for it doth amount to a Release and it is clear that a release to one shall discharge both Rolls contrary that it goeth only by way of Estoppel and not as a release and therefore shall not bar Barckley Justice that it amounts to a Release and therefore shall discharge both 7 E. 4. Hickmots case in the 7 Rep. the Plaintiff shall not have judgment where he hath no cause of Action And here by his Retraxit he hath confessed that he hath no cause of Action and therefore he shall not have judgment Further a Retraxit is not an Estoppel but a Bar of the Action besides here he hath altered the Deed and it is not joynt as it was before like as where he interlines it or the like there the Deed is altered by his own act and therefore the other shall take advantage of it Crook Justice contrary for it is not a Release but quasi a Release and if the Obligâ—e sueth one and covenanteth with him that he will not further sue him the same is in the nature of a Release and yet the other shall not take advantage of it So in this case 21 H. 6. there ought to be an actual Release of which the other shall take advantage and therefore in this Case because it is but in the nature of an Estoppel the other shall not take advantage of it Sprigge against Rawlenson 166. IN a Writ of Error to reverse a Judgment given in the Common Pleas in an Ejectione firme the Case was R. brought an Ejectione firme against S. and declared of an Ejectment de uno mesuagio uno repositorio And the Jury found for the Plaintiff and assessâ—d damages entire upon which a Writ of Error was brought here and the Error which was largely debated was that Rep. sitâ—rium which was here put for a Ware-house is a word uncertain and of divers significations as appeareth by the Dictionary And therefore an Ejectione firme de uno repositorio is not good and by consequence the damages which are joyntly assessed are ill assessed And in an Ejectione firme seism shall be given by the Sheriff upon a Recovery as in a Precipe quod reddat and therefore the Ejectment ought to be of a thing certain of which the Sheriff may know how to deliver seifin otherwise it is not good Barckley and Crook Justices were that the Judgment should be affirmed and that it was certain enough but Iones and Bramston Chief Justice contrary that it was utterly uncertain For that is Repositorium in which a man reposeth any thing and an Ejectione firme de uno tenemento is not good because there are several â—enements So here because there are several Repositories and the Sheriff cannot tradere possessionem and afterwards Barckley released his Opinion and judgment was given that the Judgment given in the Common Pleas should be reversed Trinit 17º Car ' in the Common Pleas. 167. A Man having a Legacie devised unto him out of a Lease for years which Indenture oâ— Lease was in the hands of a Stranger The Legatee suâ—d the Executors in the Spiritual Court to assent to the Legacie And Evars Serjeant prayed a Prohibition because they order that the Lease should be brought into Court which they ought not to have done being in the hands of a stranger But the Prohibition was denied by the whole Court for they may make an executor assent to a Legacie out of a Lease and therefore may order that although that the Lease be in the hand of a third person that it shall be brought in to execute it For the Order although it be general binds only the Defendant and it was agreed by the Court that assets or not assets is triable by them Juxon against Andrewes and others 168. IN an Ejectione firme the Defendants pleaded not guilty the Jury found them not guilty for part and guilty in tanto unius messuagii in occupatione c. quantum stat super ripam and whether this Verdict were sufficiently certain so as the Court might give judgment upon it and execution thereupon might be had was the question And by Whitfield Serjeant the Verdict is certain enough it hath been adjudged that where the Jury find the defendant guilty of one Acre parcel of a Mannor that it was good so of the moiety of a Mannor which is as uncertain as in this case And it is as certain as if they had said So many feet in length and so many in breadth for if the certainty appeareth upon the view of the Sheriff who is to deliver the possession it sufficeth and Clark Serjeant who was of the same side said that it is a Rule in Law Quod certum est quod certum reddi potest and this may be reduced to certainty upon the view of the Sheriff and therefore it is certain enough Besides it is the finding of the Jury who are lay gents M. 8. Iac. in
â—e conceived That if a man speak such words of another that if they were true would make him liable to a pecuniary or corporal punishment that they would bear an Action and here the Plaintiff was endamaged and therefore without question they will bear an Action Bramston Chief Justice as before also That the words are not Actionable neither of themselves nor for the damage not of themselves for no words which subject a man to a pecuniary Mulct if they were true either at the Common Law or by the Statute will bear an Action For by the same reason to say that a man hath erected a Cottage or to say that a man hath committed a Riot would bear Action 37 Eliz. in the Common Pleas. One said of another That he did assault me and took away my Purse from me and upon Not Guilty pleaded it was found for the Plaintiff and Judgment was stayed because he might take his purse from him and yet be but a Trespasser So as it appeareth that words ought to have a favourable construction to avoid multiplicity of Suits and if these words would bear an Action by the same reason words spoken against every penal Law should bear Action which against the reason given before should be a means to increase Suits And he took it for a rule If the words import scandal of themselves by which damage may accrue then the words will bear action without damage otherwise not and therefore the damage here shall not make the words Actionable which of themselves are not actionable as I conceive they are not Besides by this means the Act of a third person should prejudice me which is against reason as here the Act of the Ordinary by the Citation and damage thereupon accrued which perhaps might be ex officio only for which cause he conceived that Judgment should be stayed but because there were two Judges against one Judgment was given for the Plaintiff Mich. 17º of the King in the Common Pleas. 192. BAine brought an Action upon the Case against for these words viz. That he kept a false Bushel by which he did cheat and cosen the poor he said in his Declaration That he was a Farmor of certain lands and used to sow those lands and to sell the Corn growing on them and thereby per majorem partem used to maintain himself and his family and that those words were spoken to certain persons who used to buy of him and that by reason of those words that he had lost their custom the parties were at issue upon the words and found for the Plaintiff and it was moved by Serjeant Gotbold in arrest of Judgment that the words were not actionable because that the Plaintiff doth not alledge that he kept the false Bushel knowing the same to be a false Bushel for if he did not know it to be a false Bushel he was not punishable and by consequence no Action will lie and compared it to the case Where a man keeps a Dog that useth to worry sheep but he doth not know of it no Action lieth against him for it but yet notwithstanding Bankes chief Justice and Crawley were of Opinion that the words were Actionable for of necessity it ought to be taken that he kept the Bushel knowingly for otherwise it is no cousenage and here being special damage alledged which was the loss of his custom as he had pleaded it the maintenance of his livelihood they hold the words clearly actionable gave Judgment accordingly Note the other Judges were in Parliament 193. Doctor Brownlow brought an Action upon the case for words against 〈◊〉 spoken of him as a Physitian which words were agreed to be Actionable but yet Serjeant Gotbold conceived that although that the words were actionable that the Plaintiff had not well intitled himself to his Action because although that he said that he is in Medicinis Doctor yet because he doth not shew that he was licensâ—d by the Colledge of Physitians in London or that he was a Grâ—dâ—ate of the Universities according to the Statute of 14. H. 8. cap. 5. that therefore the action will not lie see Doctor Bâ—unchams case 8 Rep. 113. â— where he shewed the Statute aâ—orâ—said and pleaded it accordingly that he was a Graduate of the University of Cambridge wherefore he prayed that Judgment might be stayed Bankes Chief Justice and Crawley doubted whether the Act were a general Act or not for if it were a particular Act he ought to have pleaded it otherwise that they could not take notice of it but upon reading of the Statute in Court they agreed that it was a general Act wherefore they gave day to the party to maintain his Plea 194. By Bankes Chief Justice upon an Elegit there needs no Liberate otherwise upon a Statute and note the Elegit doth except Averia Corucae Dye and Olives Case 195. IN an Action of false Imprisonment the Defendant shewed that London hath a Court of Record by prescription and that the same was confirmed by Act of Parliament and that he was one of the Serjeants of the Mace of that Court and that he had a Warrant directed unto him out of that Court to arrest the Plaintiff pro quodam contemptu committed to the Court for not paying twenty shillings to K. B. and that in pursuance of the command of the Court he accordingly did arrest the Plaintiff Maynard that the justification was not good because the Defendant doth not shew what the contempt was nor in what Action so as it might appear to the Court whether they had Jurisdiction or not And if such general Plea should be tolerated every Court would usurp Jurisdiction and every Officer would justifie where the proceeding is Câ—ram non Iudice and void and thereby the Oâ—â—icer liable to false Imprisonment according to the case of the Marshalâ—ee in the 10 Rep. And here the pleading is incertain that the Jury cannot try it and he put the case of the Mayoâ— of Plymouth The Mayor hath Jurisâ—iction in Dâ—bt and Trespass is brought there which is Coram non Iudice But in this Action the parâ—y is imprisoned pro quodam contemptu shall this be a good Justification in a false imprisonment brought against the Officer certainly no. Serjeant Rolls contrary that the Plea was good because that the Defendant hath shewed that the Court was holden secundum consuetudinem and therefore it shall be intended that the contemptâ— was committed in a Case within their Jurisdiction and therefore he cited the 8 Rep. Turners Case to which Maynard replied that that doth not make it good because that issue cannot be taken upon it At another day the Judges gave their Opinions Justice Mallet That the Plea is not good because that it is too general and non constat whether within their Jurisdiction or not and where it was objected that he is a Minister of the Court and ought to obey their commands and therefore it should go hard that he
by that to discharge themselves which the Defendant here should lose if the Obligation should stand in force as to him only 8 Rep. 136. Sir Iohn Needhams case If a woman Obligee taketh one of the Obligors to be her Husband the same is a discharge to the other Two commit a trespass the discharge of one is the discharge of both yet it is there joynt or several at the will of the party who releaseth But it may be objected that it is a Casual act here and therefore shall not be so prejudicial to the Plaintiff here To that he answered That that shall not help him because it is his own lachess and default and the same Objection might have been made in Piggots case where the Obligation is altered in a material place by a stranger without the privity of the Obligee and yet there it was resolved that the same shall avoid the deed Besides if the Obligee had delivered the same over to another to keep and it had been eaten with Rats and Mice yet that would not excuse him and by the same reason shall not help the Plaintiff here Matthewsons Case C. 5 Rep. differs much from this case because there the Covenants are several and not joynt as in this Case and therefore if the Covenanâ—ee doth release to one of the covenanters that shall not discharge the others For the Cases of 14 H. 8. and Piggots Case they differ much from our Case for there the covenants or conditions against the Law are void ab initio by the construction of the Law and no alteration as in our case by the Act or default of the party by matter ex post facto and therefore those Covenants or Conditions against the Law cannot vitiaâ—e those which were good and according to Law because they took not any effect at all So if a Monk and another be bound the Bond is void as to the Monk and good as to the other because there is no subsequent alteration by the party but the same is void by construction of law ab initio and upon the same reason stands the Case of the Fine put of the other side For which causes he prayed Judgment for the Defendant Note the Court viz. Foster Reeve Crawley and Bankes Chief Justice did strongly incline that Judgment ought to be given for the Defendant and their reason was That if the Obligee by his Act or own lachess discharge one of the Obligors where they are joyntly and severally bound that the same discharges them all but gave day for the further debating of the Case for that this was the first time it was argued 207. By Justice Foster and Bankes Chief Justice a Trust is not within the Statute of 21 Iac. cap. 16. of Limitations and therefore no lapse of time shall take away remedy in Equity for it but for other Actions which are within the Statute and the time elapsed by the Statute there is no remedy in Equity and that they said was always the difference taken by my Lord Keeper Coventry but Justice Crawley said that he had conferred with the Lord Keeper and that he told him that remedy in Equity was not taken away in other Actions within this Statute 208. It was said by the whole Court that they never grant an Attachment without an Affidavit in writing 209. The Case before of the warrant of Attorney was betwixt Firburne and Cruse and was entred Trinit 17 Car. And now it was resolved upon reading of Presidents in Court that no warrant of Attorney shall be made or filed because that it is an error and not helped being after judgment in Nihil dicit that none of the presidents came to our case The greatest part of presidents were these viz. the first was 1 Car. Taylor against Thellwell the same appeared to be upon demurrer and no Judgment given Another was Mich. 3 Car. Peasgrove against Brooke and in that Case it did not appear that any Writ of Error was brought Another was Paseh 5. Car. Tayler against Sands Another Hill 6. Car. Smith against Bland in that it was conceived to be amendment only and it was agreed for Law that where there was a warrant of Attorney it might be amended for any defect in it as where there is a misprision of the name or the like as it is resolved Br. amendment 85. and so is 1 and 2 Phil. and Mar. Dyer 105. pl. 6. expresly where Alicia for Elizabetha in the warrant of Attorney was amended and that after a Writ of Error brought by construction of the Statute of 8 H. 6. and so is 9 E. 4. Br. amendment 47. And Justice Reeve said it cannot appear to us by any of the said Presidents whether there was a warrant of Attorney or not and perhaps upon examination it might appear to the Judges that there was a warrant of Attorny which is helped by the Statute of 8 H. 6. and that might be the reason which caused them to order that it should be filed but that doth not appear to us and therefore the presidents were not to the purpose Besides it doth not appear by any of them whether judgment were given or not and before judgment it may be amended as the Book is 9 E. 4. 14. br amendment 47. Besides in one of them the Plaintiff did neglect to remove the Record which is the very case in Dyer and that was the reason that the warrant of Attorney was filed but in this Case there appearing to be no warrant of Attorney it is not helped by the Statute of 8 H. 6. and after a Judgment and that upon Nihil dicit which is not holpen by the Statute of 18 Eliz and there is no Lachess in removing of the Record by the Plaintiff and for these reasons the whole Court was against the Defendant in the Writ of Error that it was Error and therefore ought not to be amended Note that in this Case it was moved that the warrant of Attorney might be filed in this Court after Error brought in the Kings Bench but observe that if it had been a thing amendable that had been no impediment to it for things amendable before Error brought are amendable after and if the inferior Court do not amend them the superior may and so it is adjudged 8 Rep. 162. in Blackmâ—res case and so is the Case express in the point 1 and 2 Phil. and Mar. Dyer 105. pl. 16. Where a warrant of Attorney was amended in Banco after Error brought and the Record certified This is only my own observation upon the Cale Mich. 17º Car. in the Kings Bench. 210. AN information was brought for the King against Edgerley Carrier of Oxford because that where by the custom of England no Carrier or other person ought to carry above two thousand weight and that with a Waggon having but two wheels and but four horses that the Defendant had used for the space of a year last past to drive Quoddam gâ—statorium
so the constitution of other Realms then the question is Whether this Prerogative of the King to pardon murder be taken away by any Statute or not and first for the Statute of 2 E. 3 cap. 2. upon which all the other Statutes depend that Statute made was only to prevent the frequencie of Pardons but not totally to take away the Kings Prerogative for the words of the Statute are That offenders were incouraged because that Charters of Pardon were so easily granted in times past c. And the Statute of 13 R. 2. cap. 2. admits the Power and Prerogative of the King of pardoning Murder notwithstanding the former Statute for that Statute prescribes the form only and 13 R. 2. in the Parliament-Roll Number 36. the King saith Saving his Prerogative The next thing considerable here is admitting Murder pardonable by the King Whether in this Pardon there be sufficient words to pardon murder or not and he argued that there was and first for the word felony and he said that by the Common Law pardon of felony is pardon of murder the Statute of 18 E. 3. cap. 2. inables Justices of Peace to hear and determine felonies and in 5 E. 6. Dyer 69. a. it is holden clearly that the Justices of Peace by virtue of that act have authority to inquire of murder because it is felony and in Instit. 391. a. By the Law at this day under the word felony in Commissions c. is included Petit Treason Murder c. Wherefore murder being felony the pardon of felony is the pardon of murder Further he said that the pardon of manslaughter is a good pardon of murder for he said that murder and manslaughter are all one in substance and differ only in circumstance as the Book in Plowd Comment fol. 101. is and if they were divers offences then the Jury could not find a man indicted of murder guilty of manslaughter as it was in the Case before cited The last words are quocunque alio modo ad mortem devenerit which extends to all deaths whatsoever and if it should not be so the Statute of 13 R. 2. should be in vain I agree the Books of 1 E. 3. 14 22 Ass. 49. 21 E. 3. 24. objected on the other side that the pardon of felony doth not extend to treason with which the Institutes 391 agrees they make not against me see the Statute of 25 E. 3. cap. 2. and the Books of 9 E. 4. 26. by Billin 8 H. 6. 20. by Strange they are but bare opinions It was objected that an Indictment at the Common Law shall not extend to murder unless the word Murdravit be in the Indictment I answer that a pardon of felony may pardon robbery and yet here ought to be also Robberia in the Indictment A pardon need not nor can follow the form of Indictments the offence apparent it sufficeth Further he argued that the King might dispense with the Statute of 2 E. 3. 13 R. 2. by a Non obstante It was objected that the Kings grant with a Non obstante the Statute of 13 R. 2. cap. 5. of the Admiralty is not good and that so of a pardon oâ— murder with a Non obstante to that he answered and took this difference Where the subject hath an immediate interest in an Act of Parliament there the King cannot dispense with it and such is the case of the Admiralty but where the King is intrusted with the managing of it and the subject only by way of consequence there he may see 2 R. 3. 12. 2 H 7. 6. It was objected that the King cannot dispense with the inquiry of the Court upon the Statute of 13 R. 2. cap. 1. To that he answered that the inquiry is the Kings suit and therefore he may dispense with it See 5 E. 3. 29. It was objected further that the Pardon saith Vnde indictatus est To that he answered That if it be left out it is good without it for the same is only for information See 36 H. 6. 25. And the words of pardon are usual to say Vnde indictatus vel non indictatus utlegat ' vel non utlegat ' and that would avoid all Pardon 's before if it should be suffered and for these causes he concluded and prayed that the Pardon might be allowed Shaftoe of Grays-Inn at another day argued for the King that the pardon was insufficient and first he said That the words of the pardon were not sufficient to pardon murder For the words Homicidium and Feloniâ—am interfectionem are indifferent words and therefore shall not be taken in a strict and strained sense It is true that killing is the Genus but there are several Species of it and several offences Now for the word Felony I conceive that the pardon of Felony will not pardon murder vide 33 H. 8. 50. fol. 4. Dyer But yet I conceive that felony in the general sense will extend to murder but not in a Pardon for there ought to be precise and express words and so are the Books of 8 H. 6. 20. by Strange and 22 H. 7. Keilway 31 b. express in the point Hill 2. Iac. Institut 391. a. and Stamford Pleas of the Crown 114. a. If a man be indicted for an offence done upon the Sea it is not sufficient for the Indictment to say Felonicè but it ought also to say Pyraticè And pardon of all felonies is not a Pardon of all Pyracie by the same reason here pardon of Felony is no pardon of Murder For the â—ast words Quocunque alto modo ad mortem pervenerit these words do not pardon Murder because they are too general vide 8 H. 4. 2. 29 Ass. Pl. 24. And clearly if there were but these general words they would not pardon Murder I was objected that these words are as much as if murder had been expressed in the pardon To that he answered that the Statute of 13 R. 2. cap. 1. saith that the offence it self ought to be expressed and doth not say by words equipollent and the Title of the Statute is that the offence committed ought to be specified In all Pardon 's the King ought to be truly informed of the form as also of the Indictment and proceeding upon it See 6 Rep. fol. 13. and here is no recital in the Pardon 9 E. 4. 28. 8 H. 4. 2. Pardon of Attainder doth not pardon the felony and pardon of the felony doth not pardon the Attainder I agree that the King may pardon his suit but the same ought to be by apt words The words of Licet indictatus or non indictatus will not help it it goeth to the proceedings only and not to the matter Besides the Law presumes that the Patent or Pardon is at the suggestion of the party and therefore if the King be not rightly informed of his Grant he is deceived and the Grant void and perhaps if the King had been informed that the fact
done was murder he would not have pardoned it and the words Ex certa scientia shall not make the Grant good where the King is deceived by false suggession of the party See Altonwoods Case 1 Rep. 46. a. 52. b. 9. E. 4. 26. b. is an authority in the point by Billing Charter of Pardon ought to make express mention of murder or otherwise it will not pardon it and 22 H. 7. 91. b. Keilway Pardon of all felonies will not pardon murder Br. Charter de pardon 10. there ought to be express words of murder in the pardon See the Old Entries 455. 2 H. 7. 6. by Ratcliffe objected that the King may pardon murder with a Non obstante that I agree but if ought to be by express words See Stamford Pleas of the Crown fol. 103 104. and 19. a. Where it is said that a pardon of all felonies doth not extend to murder Besides I conceive that a Non obstante cannot dispense with the Statute of 13 R. 2. I agree that where there is a penalty only given by the Statute there the King may dispence with it I agree the Book of 2 H. 7. 6. there it was a penalty only I agree also that the King may dispense with the Statute of Quia emptores â—errarum as the Book is N. B. 3. 211. f. But when a Statute is absolute and not Sub modo there he cannot dispense with it See 18 Eliz. Dyer 352. and 8 Rep. 29. Princes Case Institut 120 a. and Hobarts Rep. 103. The King with a Non obstante cannot dispense with the Statute of Simony because it is a positive Law and not Sub modo and this Statute of 13 R. 2. is for the common good It was objected that the King may pardon murder by the Common Law and that the Statute of 13 R. 2. takes away the inquiry only further it was objected that the Statute of 2 E. 3. did allow that the King might pardon murder but not so easily and the Statute of 13 R. 2. is saâ—â—ng our Regality by which was concluded that his Prerogative is saved Bracton fol. 133. a. saith that the Kings pardoning of murder was contra justitiam and Register fol. 309. Se defendendo and per infortunium only are pardonable and that well expounds the Statute of 2 E. 3. cap. 2. which enacts that Charters of Pardon shall be only granted where the King may do it by his Oath that is to say where a man kills another Se defendendo or per infortunium And for the saving of the Regality which is in the Statute of 13 R. 2. to that I say that the Judges ought to judge according to the body of the Act and that is express that the King cannot pardon murder 5 E. 3. 29. and Kelway 134. there it is disputed but yet it came not to our Case for that is only of a pardon of the Kings suit and for these reasons he prayed that the pardon might not be allowed Keeling for the King that the pardon is not sufficient to pardon murder The Kings pardons ought to be taken strictly and so is the 5 Rep. The Question here is not whether the general words shall extend to murder but whether it ought to be precisely expressed in the Pardon or not and he held that it ought and hâ— held that the King cannot dispense with the Statute of 13 R. 2. by a Non obstante the Books of 2 R. 3. 2 H. 7. 6. 11. Rep. 88. That the King may dispense with a Penal Law he agreed but he said that this Act of 13 R. 2. binds the King in point of Justice and therefore the King cannot dispense with it and Institutes 234 the King by a Non obstante cannot dispense with the buying and selling of Offices contrary to the Statute because it toucheth and concerneth Justice Wherefore he prayed that the Pardon might not be allowed FINIS THere is lately Reprinted Mr. March's Actions for Slanders and Arbitrementâ—â— Sold by Mris Walbanck at Grays Inn-Gate in Grays-Inn-Lane An Exact TABLE to these REPORTS Alphabetically composed by the Author Abatement of Writ See Title Writ Acceptance WHere a Witness hath not a reasonable sum delivered to him for Costs and Charges according to the distance of place as the Stat. of 5 Q 9. saith yet if he accept it it shall binde him See Tit. Witnesses 1. Accompt For what things a Husband who is administrator to his Wife shall be accomptable in the Ecclesiastical Court for what noâ— pa. 44. pl. 69 Where an accompt by Bill lies for an Attorney of the Common Bench Kings Bench or Exchequer and where iâ— an accompt a man shall recover Damâ—mages upon the second Judgement 99 100 pl. 171. In Debt upon an accompt it sufficeth to say that the Defendant was indebted to the Plaintiff upon an accompt pro diversis mercimoniis without reciting the particulars 102. pl. 175. Action upon the Case Where if a man sue another in the name of a third person without his privity an Action upon the Case will lye against him where not 47 pl. 76. Where oâ—e who is not of the Jury cauâ—seth himself to be sworn in the name of one returned of the Jury and gives his Verdict either party may have an Action upon the Case against him 81. pl. 132. A man retorned cited in the Ecclesiastical Court where he was not cited shall have an action upon the case 99. pl. 169. Action upon the Case for words What words shall be actionable and what not pa 1. pl. 3. pa. 7. pl. 17 18 19. pa. 15. pl. 37. 19. pl. 44. 20. pl. 45. 58. pl 90. 59. pl. 91 93. 76. pl. 119. 82. pl. 135. 107. pl. 184. 109. pl. 187. 113. pl. 191. 115. pl. 192. 116. pl. 193. 119. pl. 197 146. pl. 217. 62. pl. 96. 211. pl. 248. 212. 149. Actio personalis moritur cum persona What shall be said to be an Action personal and to dye with the person what not 9. 13 14. Alimony Where a man puts his Wife from him he is compellable by the Ecclesiastical Court to allow her Alimony 11. pl. 31. The High Commission Court had not power to allow Alimony 80. pl. 129. Amendment Where amendment may be in the inferiour Court after Errour brought where not 72 pl. 109. No amendments allowed in Courts below 78. pl. 124. No amendment after a Verdict without 〈◊〉 82. pl 133. A Declaâ—ation cannot be amended in substance wiâ—hout a new Original otherwise o◠〈◊〉 93. pl. 161. A Warrant of Attorney may be amended after Errour brought 121. pl. 201. 129. pl. 209. In an Ejectione firme vi arms was in the Writ but wanted in the Count whether it be amendable or not quaere pa. 140. pl. 113. Appendant Leet may be appendant to a Hundred 75. pl. 115. Apportionment Where a Debt or other duty may be apportioned and several Actions brought where not 57. 61. Assumpsit being an entire
granted And here it was agreed That if a woman do convey a Lease in trust for her use and afterwards marrieth that in such case it lies not in the power of the husband to dispose of it and if the wife die the husband shall not have it but the Executor of the wife and so it was said it was resolved in Chancery 70. Barckley and Crooke there being no other Justice at that time in Court said That upon a Petition to the Archbishop or any other Ecclesiastical Court no Prohibition lieth But there ought to be a Suit in the Ecclesiastical court And by them a Libel may be in the Ecclesiastical court for not repairing a way that leadeth to Church but not for repairing of a high-way and upon suggestion that the Libel was for repairing a high-way a Prohibition was granted 71. Many Indictments were exhibited severally against several men because each by himself suffered his door to be unrepaired and it was shewed in the Indictments that every one of them ought to repair And thereupon it was moved that they might be quashed but the Court would not quash them without certificate that the parties had repaired their doors but it was granted that Process should be stayed upon motion of Counsel that reparation should be immediately done But at the same time many Indictments for not repairing of the high-way which the Parishioners ought to have repaired according as it was found by Verdict the same Term were quashed for the same defect But in truth there was another fault in the Indictment for that it was joynt one only whereas there ought to have been several Indictments but they were quashed for the first defect 72. A Replevin was brought in an Inferiour Court and no Pledges de retorno habendo were taken by the Sheriff according to the Statute of West 2. c. 2. After the Plaint was removed into this Court by a Recordari and after Verdict given it was moved in arrest of Judgment want of Pledges for thâ—se reasons because the Pledges de retorno habendo are given by that Statute as 2 H. 6. 15. and 9. H. 6. 42. b. And that Statute saith That Pledges shall be taken by the Sheriff and therefore no other can take them notwithstanding that Pledges might be found here in Court And 3 H. 6. 3. and F. N. B. 72. a. say That where Pledges are found that they shall remain notwithstanding the removal of the Plaint by Recordari and the reason is because the Sheriff is a special Officer chosen to that purpose by the Statute and therefore no other can take them Besides there would be a failer of Justice if the Court should put in Pledges for then there might be no remedy against the Sheriff for that he found no Pledges and no remedy against the Pledges because they are not found according to the Statute and so a failer of Justice and by that means the Sheriff should frustrate and avoid the Statute for no Pledges should ever be found and so he should take advantage of his own laches and wrong Farther it was objected that these proceedings are the judicial act of the Court and therefore the Court will not alter or diminish them L. Entries 1. and 3 H. 6. And farther it was said That the cases of Young and Young and Dr. Hussies case adjudged in this Court That Pledges may be found at any time before Judgment were in Action upon the Case and not in Replevine as our case is for which there is special Provision made by the Statute But it was answered and agreed by the whole Court that Pledges may be found by this Court for the Pledges given by the Statute of West 2. are only to give remedy against the Sheriff and if the Sheriff do not his duty but surceaseth we may as at the Common Law put in Pledges and yet notwithstanding remedy may be against the Sheriff upon the Statute for his neglect And farther it was agreed That Pledges may be found at any time before Judgment as in Young and Youngs Case and Dr. Hussies Case it was adjudged And Judgment was affirmed 73. There can be no second Execution granted out before that the first be returned 74. Two Joyntenants of a Rectory agree with some of their Parishioners that they shall pay so much for Tithes and notwithstanding one of thâ—m sueth for Tithes in the Ecclesiastical court and a Prohibiâ—ion was prayed because that one of them cannot sue without the other and the Court would not grant it and their reason was because although that one of them cannot sue without the other by our Law yet perhaps the spiritual Court will permit it 75. Husband and Wife brought a Writ of conspiracie and it was adjudged that it would not lie And Iones cited this case That Husband and Wife brought an Action upon the Case against another for words viz. That the Husband and Wife had bewitched another and it was not good because that the wife cannot joyn for Conspiracie made against the husband nor for trespass of Battery as the Book is 9 E. 4. But Justice Crook was of Opinion That the Conspiracie would well lie because that the Indictment was matter of Record and therefore not meerly Personal but the whole Court was against him and Justice Barckley took the difference where they sue for Perâ—onal wrong done to thâ—m there they shall not joyn but wherâ— they have a joynâ— Interest as in case of a Quare impedit there they shall joyn Thurston against Ummons in Error to Reverse a Iudgment in Bristow 76. THurston brought an Action upon the Case against Vmmons declared That the Defendant brought an Action against him at the Suit of Hull without his privity And thereupon did arrest and imprison the Plaintiff by reason whereof all his Creditors came upon him and thereby that he had lost his Credit c. And a Verdict was found for the Plaintiff and thereupon Error brought and two Errors were alledged 1. That the Action will not lie because in truth there was a just Debt due to Hull in whose name he sued 2. Because it is not shewed that the causes of Actions which the other Creditors had against him did arise within the Jurisdiction of the Court of Bristow And notwithstanding the first Error alledged Judgment was affirmed by the whole Court upon this difference where Hull himself sueth or commenceth Suit against the Plaintiff there although by that Suit he draw all the Creditors upon the back of him and so perhaps undo him yet because it was a lawful act no Action upon the Case lieth against him But where one commenceth Suit against another in the name of another and without his privity that is Maintenance which is a tortious Act and therefore an Action will lie so in the principal case As to the second Error alledged the Court differed in Opinion Barkley That the damages were ill assessed because they were given aswel for
the Actions brought by the other Creditors But Justice Bramston contrà That the damages were well assessed because that the Actions brought by the Creditors were added for aggravation only and the cause of the Action was the Arrest and Imprisonment like the case where a man speaks words which are in part actionable and others only put in for aggravation and damages is assessed for the whole it is good There was a third Error assigned That the Venire facias was de Warda omnium Sanctorum de Bristow without shewing in what Parish Childe against Greenhil 77. CHilde brought Trespass against Greenhill for Fishing in seperali piscaria of the Plaintiff and declared that the Defendant pisces ipsius cepit c. And Verdict found for the Plaintiff And it was moved by Saint-Iohn in Arrest of Judgement because the Plaintiff declared of taking of pisces suos whereas the Plaintiff they being ferae naturae hath not property in them Register 94 95. and F. N. B. and Book Entries 666. No count that the Defendant cepit pisces ipsiuâ— but ad valentiam c. without ipsius So Fines Case in Dyer 7 H. 6. 36. 10 H. 7. 6. 12 H. 8. 10. by Brudnell 13 E. 4. 24. 7 Rep. case of Swannes And the Book of 22 H. 6. 59. is over-ruled by the case of Swannes 34 H. 6. 24. And the same is matter of substance and therefore not helped after Verdict An Action of Trover and Conversion against husband and wife quia converterunt is not good and it is not helped after Verdict because it is matter of substance Rolls for the Defendant I agree that lepores suos or pisces suos without any more is not good But where he brings an Action of Trespass for taking them in his Soil there it is good because it is within his Soil So in our case for taking pisces suos in his several Piscary and with this difference agree 22 H. 6. 59. 43 E. 3. 24. so Regist. 93 102. 23 H. 6. tit Tresp 59. 14 H. 8. 1. and the Book of 43 E. 3. saith That in Trespass the Writ shall not say Damam suam if he do not say that it was taken in his Park or Warren or saith damam domitam or as the Book is in 22 H. 6. in my Soil or Land and by Newton he shall say there damas suis. And admit that it was not good yet I hold that it is helped after Verdict because it is not matter of Substance for whether they be pisces suos or not the Plaintiff shall recover damages Justice Barckly It is true that in a general sense they cannot be said pisces ipsius but in a particular sense they may and a man may have a special or qualified property in things which are ferae naturae three ways ratione infirmitatis ratione loci ratione privilegii and in our case the Plaintiff â—ath them by reason of Priviledge And it was agreed by the whole Court That Judgment should be affirmed upon the very difference taken by Rolls that where a man brings Trespass for taking pisces suos or lepores suos c. and the like that the Action will not lie But if he bring Trespass for fishing in his several Piscary as in our Case or for breaking of his Close and taking lepores suos c. there it will lie Pitfield against Pearce 78. IN an Ejectione firme the Case was thus Thomas Pearce the Father was seised of Lands in Fee and by Deed in consideration of Marriage did give and grant this Land to Iohn Pearce the now Defendant his second Son and to his Heirs after his death and no Livery was made Thomas Pearce died the Eldest Son entred and made a Lease to the Plaintiff who entred and upon Ejectment by the Defendant brought an Ejectione firme Twisden The only question is whether any estate passeth to the Son by the Deed and it was said there did and that by way of Covenant And it was agreed That in this Case if Livery had been made it had been void because that a Freehold cannot begin at a day to come But I may Covenant to stand seised to the use of my Son after my death So a man may surrender a Copyhold to take effect after a day to come Com. 301. So a man may bargain and sell at a day to come 1 Mar. Dyer 96. Chudleighs Case 129. 20 H. 6. 10. A use is but a trust betwixt the parties and 7 Rep. 400. There need not express words of Covenant to stand seised to an use 25 Eliz. Blithman and Blithmans case 8 Rep. 94. Besides these words dedi concessi are general words and therefore may comprehend Covenant and words shall be construed that the Deed may stand if it may be 8 Ass. 34. 7 E. 3. 9. But I agree that if the intent appeareth that it shall pass by transmutation of possession that there it shall be so taken but here his intent doth not appear to be so for if there should be Livery then the son should take nothing for the reason before given which is against his meaning Mich. 21 Iac. Rot. 2220. Buckler and Simons Case Dyer 202. Vinions case The cases cited before are in the future tense but the words are here I give c. 36 Eliz. Callard and Callards Case Stand forth Eustace reserving an estate to my self and my wife I do give thee my Land and the better Opinion was That in that case it did amount to a Livery being upon the Land for his intent is apparent Mich. 41 42 Eliz. Trelfe and Popwells Case adjudged in such case That an use shall be raised For which it was concluded that in this case there is a good estate raised to Iohn Pearce by way of Covenant Rolls I conceive that not estate is raised to Iohn Pearce by this conveyance It was objected That it shall inure by way of Covenant to raise an use I agree that if the meaning of the party may appear that he intended to pass his estate by way of raising of an use otherwise not And here is no such appearance Foxes Case in 8 Rep. is a stronger case and here it doth not appear that he meant to pass it by way of use But by the word give he intended transmutation of possession 8 Rep. Bedells case Mich. 18. Car. Rot. 2220. in the Common Pleas it was adjudged That a gift of a Remainder after the death of the grantor was void wherefore he concluded for the Plaintiff and so Judgment was given by the whole Court And Justice Iones said When a man makes a doubtful Conveyance it shall be intended a Conveyance at the Common Law And it shall not be intended that the Father would make him Tenant for life only punishable of wast Mich. 15º Car ' in the Kings Bench. 79. IT was moved for a Prohibition to the Counsel of the Marches and the Case was such A man seised of Lands in Fee
thing cannot be apportioned 100 pl 172. Where an Arbitrament shall be said to be incertain where not 13. pl. 42. Where an Award shall be said to be according to the submission where not 77. pl. 122. The submission of an Infant to an Arbitrament is void 111. pl. 189. 141. pl. 215. Arrerages Grantee of a Rent charge in see distraines for Arrerages and then grants it over whether the Arrerages are lost or not quaere 103. pl. 178 Assent and Consent An Executor is compellable in the Ecclesiastical Court to assent to a Legacy 96 pl. 167. What shall be said a good assent to a Legacy and where an assent after the death of the Devisee shall be good where not 137. pl. 209. Assets Where Assets or not Assets may be tried by the Spiritual Court See Tit. Iâ—risdiction Assignee Assignments A Feme sole conveys a terme in trust and marries the Husband assignes it over the trust passes not the Estate 88. pl. 141. Assumpsit Where there is a mutual and absolute promise he that brings the Action needs not to say qâ—od paratus est to do the thing which he promisâ—d and that the other refused to accept it otherwise where the promise is conditional 75. pl. 114. Promise not to exercise ones Trade in such a Town is good otherwise in case of a Bond. 77. pl. 121. 191. pl. 238. Promise made to an Attorney of one Court for Sollicitation of a Cause in another Court is a good consideration upon which to ground an Assumpsit 78. pl. 123. Promise is an entire thing and cannot be apportioned See Tit. Apportionment Attachment An Attachment lies against the Steward of an inferiour Court for dividing of Actions 141. pl. 214. See more of Attachments in Title Contempt Attorney Infant cannot be an Attorney 92. pl. 154. An Administrator brought a writ of Error to reverse the Outlawry of the intestate for murder and allowed to appear by Attorney 113. pl. 190. An Attorney at Common Law is an Attorney in every inferiour Court and therefore cannot be refused 141. pl. 214. Audita querela In an Audita querela the Law doth not require such strictness of pleadiâ—g as in other Actions 69. pl. 108. Averment Where and in what Cases an Averment shall be good and necesâ—ary and where not 1. pl. 3. 15. pl. 37. 19. 62. pl. 96. Avowry Grantee of a Rent charge in Fee distrains for Arrerages and then grants it over whether he ought to avow or justifie quaere 103. pl. 178. Bailiff SHeriff of a County makes a Mandat Balâ—vis suis to take the body of a man and the Bailiffs of a Liberty retorn a Rescous and good 25. pl. 58. Bankrupts An Inholder is not within the Statutes of Bankrupts Copyhold Land is No Inholder at the time of the purchase but afterwards not within the Statutes 34 pl. 67. Baron Feme What things of the Wives are given by the Law and the intermarriage to the Husband what not and what things he shall gain by Letters of Administration after her decease 44. pl 69. Baron and Feme cannot joyn in a Writ of Conspiracie in what other Cases they may joyn 47. pl. 75. See 212. pl. 249. Whether Trover and Conversion against a Baron and Feme and a count of a conversion ad usum 〈◊〉 be 〈◊〉 or not quaere 60 pl. 94. Seâ— 82. pl. 134. Feme â—ole conveys a 〈…〉 her Husâ—and that shall â—e covenants with her 〈◊〉 to intermeddle with it and yet after marriage assignes it over the Feme shall have remedy in Equity 88 pl. 141. Baron and Feme present to a Church to which they have no right this gains nothing to the Feme otherwise when they enter into Land or when the Feme hath right 90. pl. 146. One said of the Wife of another that she was a Bawd and kept a Bawdy-house for which they joyned in Action and declared ad damnum ipsorum and held good 212 pl. 249. Bar. Bar in one Ejectione firme â—is a Bar another brought for the same Ejectment but not for a new Ejectment 59. pl. 93. Plea in bar incertain is naught See Tit. Pleadings c. Tenant for life the Reversion to an Ideot an Uncle heir apparent to the Ideot levyes a Fine and dyes Tenant for life dyes the Ideot dyes whether the Issue of the Uncle who levied the Fine shall be barred by it or not quaere 94. pl. 164. 146. pl. 216. Certiorari UPon a Certiorari to remove an Indictment of â—orcible entry denier of one shall not 〈◊〉 the others of the benefit of the Certiorari they offering security according to the Statute of 21 Iac ' and the Sureties being worth ten pounds cannot be reâ—used and after a Certiorari brought and tender of sufficient sureties the Justices proceedings are coram non judice 27. pl. 63. A. and B. were indicted for a murder B. flies and A. brings a Certiorari to remove the Indictment into the Kings Bench whether all the Record be removed or but part quaere 112. pl. 190. Certiorari lies to remove the proceedings of the Commissioners of Sewers See Title Sewers Cessante causa cessat effectus Outlawry reversed the Original is revived for Cessanto cause c. 9. pl. 21. Chancery After Execution and Moneys levied the Lord Keeper cannot order the Money to remain in the Sheriffs hands or that the Plaintiff shall not call for it 54. pl. 81. Charter of Pardon Whether a Pardon of the King of Felony homicide c. doth pardon murder or not quaere 213. pl. 250. Commission Commissioners Commissioners execute a Warrant with a stranger to the Warrant yet good 92. pl. 155. Confirmation Baron and Feme Donees in special Tailâ— the Baron levies a Fine and dyes he in the Reversion confirmes to the Wife her Estate to have to her and her Heirs of her body by the Husband-ingendred what is wrought by this Confirmation quaere 146. pl. 216. Consideration What shall be said a good Consideration upon which to ground an Assumpsit what not 55 pl. 86. 78. pl. 123. Contempt Attachment ought not to be granted against the Sheriff for Contempt of his Bailiffs 54. pl. 81. Upon Error brought notice ought to be given to the Sheriff otherwise he shall not incur a Contempt for serving execution 54. pl. 81. No Attachment without an Affidavit in-writing 129. pl. 208. Attachment lies against the Steward of an inferiour Court for dividing of Actions 141. pl. 214. Copyhold Copyholds not granted in Reversion except by Custom 6. pl. 13. Copyhold is within the Statutes of 13 Q. 7. and 1 Iac. 1. of Bankrupts 36. The King grants a Copyhold for life generally whether this destroys the Copy-hold or not quaere Descent of a Copyhold shall not take away an entry 6. pl. 13. Coram non judice After a Certiorari brought to remove an Indictment of forcible entry and tender of sufficient sureties according to the Statute of 21 Iac. the proceedings of the Justices
of peace are coram non judice 27. pl. 63. Presentments taken in an Hundred-Court are coram non judice 75 pl. 115. Corporation Churchwardens in London are a Corporation and may purchase Lands to the benefit of the Church but Churchwardens in the Country though a Corporation are capable onely to purchase Goods to the benefit of the Church 67. pl. 104. Covenant A man makes a Lease and that the Lessee shall have conveniens lignâ—m non succidend ' vendeâ—d ' arbores the Lessee cuts down Trees the Lessor may bring an Action of Covenant 9. pl. 22. Lessee of a house Covenants to repair it with convenient necessary and teneatable Râ—parations in Covenant the Lesser alleadgeth a breach in not repairing for want of Tyles and daubing with Morter and doth not shew that it was not tenentable therefore nought 17. pl. 39. A man by Deed conveys Land to his second Son by these words I do give and grant this Land to I. S. my second Son and his Heirs after my death and no livery made and dyes the Estate passeth not by Covenant and therefore the Son taketh nothing 50. pl. 78. Covenant with two severally and good 103. pl. 176. Counsel Counsellors Counsel saith to his Client that such a contract is Simony and he saith that Simony or not Simony he will do it and thereupon the Counseller maketh this Simoniacal contract this is no offence in him 83. pl 136. Custom and Perscription By the Custom of London a man may transfer over his Apprentices to another 3. pl. 6. By the Custom of London the Mayor may restrain any man from setting up his Trade within the City in a place unapt for it and for his disobedience may imprison him 15. pl. 34. Custom to cut Grass in the soyl of another to strow the Church good Custom 16. pl. 38. Custom or Prescription in non decinando by a Hundred is good but not by a Parish or particular Town 25. pl. 59. A Law or Ordinance where the Custom will warrant it that he that puts in his beasts in the Common beyond such a limit or bound shall pay 3 s. 6 d. is a good Law 28. pl. 64. Custom that if a man have see in Land that it shall descend to the youngest Son and if Tail that then to the Heir at Common Law is a good Custom 54. pl 82. Prescription to have Common for all beasts commonable is naught but for all beasts commonable levant and couchant is good 83 pl. 137. A Hille hath a Chappel and buries at the Mother-Church and for this have time cut of mind repaired parcel of the wall of the Church it is good for to excuse them from repairing the Church Inhabitants of a place prescribe to repair the Chappel of ease and in regard of this that they have been time out of minde freed from all reparations of the Mother-Church good prescription 91. pl. 151. Hille hath a Chappel of ease and a Custom that those with in such a precinct ought to find a Rope for the third Bell and repair part of the wall of the Mother-Church in consideration of which they have been freed of payment of any Tythes to the Mother-Church whether this be a good Custom or not quaere ubi supra Damage Cleer WHat Damage Cleer is and the prejudice that a man may have in this that he cannot have his Judgement before that he hath payed the Damage cleer 76. pl. 226. Damages and Cost Heir apparent ravished of full age his Fatâ—er shall not recover Damages 5 pl. 8. In Attaint the Verdict was affirmed and the Defendant in the Attaint prayed Costs but was denyed by the Court. 24 pl. 55. A man distraiâ—s for a Penalty asseâ—â—ed by Custom and distrainable by Custom and upon a Beplevin brought Judgement was given for the Avowant and Damage assessed and whether Damage ought to have been given or not quaere 38. pl. 64. Where Damages entire shall be nought and where not 47. pl. 76. 96. pl 166. 47. pl. 76. Where Costs and Damages shall be recovered upon a Penal Law where not 56. pl. 88. 61 pl. 95. Prisoner removing himself by Habeas corpus shall pay the costs of the removal otherwise where he is removed by the Plaintâ—ff 89. pl. 143. In an Accompt a man shall recover Damages upon the second Judgement 99. pl. 171. Debt A Sheriff levies money upon a Fieri fa cias Debt will lie against him and if he dyes against Executors 13. pl 33. In Debt upon an Accompt it sufficeth to say that the Defendant was indebted to the Plaintiff upon an Accompt pro diversis mercimoniâ—â— without reciting the particulars 102. pl. 175. 105. pl. 182. Defamation If a man Libel in Court Christian for calling of him Drunkard Prohibition lies See Tit. Prohibition 1. D. Libelled in the Ecclesiastical Court for these words She is a beaâ—â—ly quâ—an a 〈◊〉 qâ—ean a copper-â—os'd qâ—ean and 〈…〉 and hath 〈◊〉 500 l. and 〈…〉 with whorâ—s and Regâ—â—s upon which a Prohibition was prayed and granted 89. pl. 144. A woman Libelled in the Spiritual Court against one for calling her Jade upon which a Prohibition was prayed and granted but if it be Libelled for calling one whore or bawd no Prohibition lies 99. pl. 170. By the Custom of London an Action lies for calling a woman Whore and ruled a good Custom 107. pl. 184. Default Appearance Administrator of one Outlawed for murder brought Error to reverse the Outlawry and was allowed to appear by Attorney 113. pl. 190. Demands Demandable Grantee of a Rent to be paid at the house and if the Rent be behinde and lawfully demanded at the house that then it shall be lawful for the Grantee to distrain whether a distress upon the Land be a sufficient demand as this Case is or not quaere 147. pl. 218. Denizen Alien Merchant goes beyond Sea and marries an Alien who have Issue the Issue is a Denizen 91. pl. 150. Deprivation Where a Church shall be void without sentence of Deprivation See Title Void Voidable Devises Devise of Goods to one for life the Remainder to another the Remainder is void 106. pl. 183. Divorce A man divorced causâ adulterii is within the Proviso of the Statute of 1 of King Iames ca. 11. but not a man divorced causâ— saevitiae 101. pl. 175. Discontinuance A man may Nonsuit without the consent of the Court but not Discontinue without the Courts consent 24. pl. 54. Dispensations Whether the King by a Non obstante in his Charter of Pardon may dispense with the Statute of 13 R. 2. ca. 1. or noâ— quaere If you peruse this Case you shall finde much excellent learning upon that point in what Case the King may dispense with Statutes in what not 213. pl. 250. Distress Horses traced together are but one Distress Fetters upon a Horse-leg may be distrained with the Horse 91. pl. 149. Distribution Whether the Ordinary after Debts and Legacies