she ought not to starve If a woman be of so haughty a stomack that she will chuse to starve rather then submit and be reconciled to her husband let her take her own choise The Law is in no default which doth not provide for such a wife If a man be taken in execution and lye in Prison for Debt neither the Plaintiff at whose suit he is arrested nor the Sheriff who took him is bound to find him Meat Drink or Cloathes but he must live on his own or on the Charity of others and if no man will relieve him let him dye in the name of God says the Law Plow 68. Dive Manningham so say I if a woman who can have no Goods of her own to live on will depart from her husband against his will and will not submit her self unto him let her live on Charity or starve in the name of God for in such case the Law says her evil demeanour brought it upon her and her death ought to be imputed to her own wilfulness As to my Brother Tyrrells Objection it were strange if our Law which gives relief in all cases should send a woman unto another Law or Court to seek remedy to have maintenance I answer It s not sending the wife to another Law but leaving the case to its proper Iurisdiction the case being of Ecclesiastical Conusance Is it any strangeness or disparagement to the Common-Pleas to send a Cut-purse or other Felon taken in the Court to the Kings-Bench to be Indicted or to the Kings-Bench to send a woman to the Common-Pleas to recover her Dower Why is it more strange for the Common Law to send a Woman to the Ordinary to determine differences betwixt her and her husband touching matters of Matrimony then for our Courts at Common Law to write unto the Ordinary to certifie Loyalty of Marriage Bastardy or the like where Issue is joined on these points in the Kings Courts for although the proceeding and process in the Ecclesiastical Courts be in the names of the Bishops yet these Courts are the Kings Courts and the Law by which they proceed is the Kings Law 5 Rep. 39. Caudries case but the reason in both cases is quia hujusmodi causae cognitio ad forum spectat Ecclesiasticum 30 H. 6. b. Old book of Entries 288. according to that of Bracton lib. 3. fo 107. Stamf. 57. Sunt casus spirituales in quibus Judex secularis non habet cognitionem neque Executionem quia non habet coercionem In his enim casibus spectat cognitio ad Judices Ecclesiasticos qui regunt defendunt sacerdotium Hereunto agrees Cawdries case 5 Rep. 9. As in temporal causes the King by the mouth of his Iudges in his Courts of Iustice determines them by the temporal Law so in causes Ecclesiastical and Spiritual the Conusance whereof belongs not to the Common Law they are decided and determined by the Ecclesiastical Iudges according to the Kings Ecclesiastical Laws And that causes of Matrimony and the differences between husband and wife touching Alimony or maintenance for the wife which are dependant upon or incident unto Matrimony are all of Ecclesiastical and not of secular Conuzance is evident by the Books and Authorities of our Laws de causa Testamentari sicut nec de causa Matrimoniali Curia Regia se non intromittat sed in foro Ecclesiastico debet placitum terminari Bracton lib. 2. cap. 20. fo 7. All causes Testamentary and causes of Matrimony by the Laws and Customs of the Realm do belong to the spiritual Iurisdiction 24 H. 8. cap. 2. The words of the Writ of Prohibition granted in such cases are placita de Catallis debitis quae sunt de Testamento vel Matrimonio spectant ad forum Ecclesiasticum In a suit commenced by a woman against he husband before the Commissioners for Ecclesiastical causes for Alimony a Prohibition was prayed and granted because it is a suit properly to be brought and prosecuted before the Ordinary In which if the party find himself grieved he may have relief by Appeal unto the superiour Court and that he cannot have upon a sentence given in the high Commission Court 1 Cro. 220. Drakes case But 't is objected by my Brother Tyrrell and Twisden that the remedy in the Ecclesiastical Court is not sufficient for if the husband will not obey the Sentence of the Ordinary it is but Excommunication for his Contumacy and will neither feed nor cloath the wife Are the Censures of the holy Mother the Church grown of so little Accompt with us or the separation a communione fidelium become so contemptible as to be slighted with but Excommunication hath our Law provided any remedy so penal or can it give any Iudgment so fearful as this With us the rule is committitur Marescal ' or Prison ' de Fleet. There the Sentence is traditur Satanae which Iudgment is more penal Take him Gaoler till he pay the Debt or take him Devil till he obey the Church And yet their Iudgment is warranted by the rule of St. Paul whom I have delivered unto Satan 1 Cor. 5. 5. whereupon the Coment says Anathema ab ipso Christi corpore quod est Ecclesia recidit Causa 3 quest 4 Cam ' Egell trudam and also Nullus cum Excommunicatis in oratione aut cibo aut potis autesculo communicet nec ave eis dicat Causa 2 quest 3 Can. Excommunicat ' Bracton lib. 5. cap. 23. fo 42. As much is said by our Law and it is to the same effect Excommunicat ' interdicitur omnis actus legitimus Ita quod agere non potest nec aliquem convenire cum ipso nec orare nec loqui nec palam nec abscondite vesci licet The second ground of the Law of Excommunication is the Law of England and it is a ground in the Law of England That he which is accursed shall not maintain any Action Doctor Stu. 11. Where a man is excommunicated by the Law of the Church if he sue any Action real or personal the Tenant or Defendant may plead that he is Excommunicated and demand Iudgment if he shall be answered Lit. 201. the Sentence is set forth at large in the old Statute Book of Magna Charta and is intituled Sententia lata super chartas namely Authoritate Dei patris omnipotentis filii spiritus Sancti Excom̄unicamus Anathematizam a liminibus Sanctae matris Ecclesiae sequestram ' omnes illos c. 12 H. 3. fo 146. He which by the Renunciation is rightfully cut off from the Vnity of the Church and Excommunicate ought to be taken by the whole multitude as a Heathen and a Publican until he be openly reconciled by Penance Act 33. confirm ' per 13 Eliz. cap. and this is grounded on the rule of our blessed Saviour dic ' Ecclesiae And if he neglect to hear the Church let him be as an Heathen and Publican Matt. 18. 17. Shall a
Trespass was brought for taking away a Cup till he paid him 20 shillings The Defendant pleads that ad quandam curiam he was amerced and that for that the Cup was taken Hales We cannot tell what Court it is whether it be a Court-Baron by Grant or Prescription if it be by Grant then it must be coram Seneschallo if by Prescription it may be coram Seneschallo or coram Sectatoribus or coram both Then it does not appear that the House where the Trespass was laid was within the Manor Then he doth not say infra Jur. Cur ' It was put upon the other side to shew cause Jacob Hall's Case ONe Jacob Hall a Rope-dancer had erected a Stage in Lincolns-Inn-fields but upon a Petition of the Inhabitants there was an Inhibition from Whitehall now upon a complaint to the Iudges that he had erected one at Charing-cross he was sent for into Court and the Chief Iustice told him that he understood it was a Nusance to the Parish and some of the Inhabitants being in Court said that it did occasion Broyles and Fightings and drew so many Rogues to that place that they lost things out of their Shops every Afternoon And Hales said that in 8 Car. 1. Noy came into Court and prayed a Writ to prohibit a Bowling-Ally erected near St. Dunstans Church and had it Sir Anthony Bateman's Case IN the Trial at Bar the Son and Daughter of Sir Anthony Bateman were Defendants the Action was an Ejectione Firmae The Defendants admitted the point of Sir Anthony's Bankrupcy but set up a Conveyance made by Sir Anthony to them for the payment of 1500 l. apiece being money given to them by their Grandfather Mr. Russell to whom Sir Anthony took out Administration Hales It is a voluntary Conveyance unless you can prove that Sir Anthony had Goods in his hands of Mr. Russell at the time of the executing it So they proved that he had and there was a Verdict for the Defendants Legg Richards EJectment Iudgment against the Defendant who dies and his Executor brings a Writ of Error and is non-suited It was moved that he should pay Costs Twisden An Executor is not within the Statute for payment of Costs occasione dilationis Hales I am of the same Opinion Harwood's Case HE was brought to the Bar by Habeas Corpus being committed by the Court of Aldermen for marrying an Orphan without their consent Sol. North. We conceive the Return insufficient and that it is an unreasonable Custom to impose a Penalty on a man for marrying a City-Orphan in any place of England Now we marryed her far from London and knew not that she was an Orphan Then they have put a Fine of 40 l. upon him whereas there is no cause why he should be denied Marriage with her there being no disparagement Twisden Mr. Waller of Berkingsfield was imprison'd six months for such a thing So the money was ordered to be brought into Court Vide infra 79. Leginham Porphery REplevin and Avowry for not doing Suit The Plaintiff sets forth a Custom that if any Tenant live at a distance if he comes at Michaelmas and pay eight pence to the Lord and a penny to the Steward he shall be excused for not attending and then says that he tendred eight pence c. and the Lord refused it c. Polynxfen I know no case where payment will do and tender and refusal will not do Hales Have you averred that there are sufficient Copy-holders that live near the Mannor Polynxfen We have averred that there are at least 120. Hales Surely tender and refusal is all one with payment Twisden An Award is made that super receptionem c. a man should give a Release there tender and refusal is enough Iudgment for the Defendant Waldron versus c. HAles It is true one Parish may contain thrée Vills The Parish of A. may contain the Vills of A. B. and C. that is when there are distinct Constables in every one of them But if the Constable of A. doth run through the whole then is the whole but one Ville in Law Or where there is a Tything-man it may be a Ville but if the Constable run through the Tything then it is all one Ville I know where three or four Thousand l. per annum hath béen enjoyed by a Fine levied of Land in the Ville of A. in which are five several Hamlets in which are Tythings but the Constable of A. runs through them all and upon that it was held good for all Here was a case of the Constable of Blandford-Forum wherein it was held that if he had a concurrent Iurisdiction with all the rest of the Constables the Fine would have passed the Lands in all In some places they have Tythingmen and no Constables Polynxfen Lambard 14. is that the Constable and the Tything-man are all one Hales That is in some places Praepositus is a proper word for a Constable and Decemarius for a Tything-man An Indictment for retaining a Servant without a Testimonial from his last Master Moved to quash it because it wants the words contra pacem 2. Becausâ—â—â—ey do not shew in what Trade it was So quash'd Moved to quash another Indictment because the year of our Lord in the Caption was in Figures Hales The year of the King is enough Moved for a Prohibition to the Spiritual Court for that they Sue a Parish for not paying a Rate made by the Church-wardens only whereas by the Law the major part of the Parish must joyn Twisden Perhaps no more of the Parish will come together Counsel If that did appear it might be something Hales A Writ of Error will lie in the Exchequer-Chamber of a Iudgment in a Scire facias grounded upon a Iudgment in one of the Actions mentioned in the 27 of Eliz. cap. 8. because it is in effect a piece of one of the Actions therein mentioned Harwood's Case HE was removed out of London by Habeas Corpus the Return was That he was fined and committed there for marrying a City-Orphan without the consent of the Court of Aldermen Exception 1. They do not say that the party was a Citizen or that the Marriage was within the City and they are not bound to take notice of a City Orphan out of the City for their Customs extend only to Citizens in the City Exception 2. They have not shewed that we had reasonable time to shew cause why we should not be fined Twisden These Objections were over-ruled in one Waller's case Afterward in the same Term Weston spake to it There are two matters upon which the validity of this Return doth depend viz. The Custom and the Offence within the Custom The Custom is laid that time out of mind the Court of Aldermen have had power to set a reasonable Fine upon such as should marry an Orphan without their leave and upon refusal to pay it to imprison him I conceive this Custom as it is laid to
Queen he had made a Prior Grant to one Danson of which Grant we here produce the Inrolment This Grant to Danson was an effectual Grant for anno 11 Jacobi a Presentation was made by J. R. Th. Danson which proves that this Grant took effect and the Defendant himself deduceth the Title of his own Patron under that Grant Barrel Wingate is not to be accounted a stranger for he makes Title by the Letters Letters Patents of 2 Eliz. so that he encounters the Queen with her own Grant and his Title under that Grant was allowed by the Court who gave Iudgment accordingly There was no faint Pleader in the Case as appears by the Record that has been read And covin shall not be presumed if it be not alledged We deduce our Title under the Grant made to Danson 29 Eliz. in our plea but that is only by way of inducement to our traverse Cur. By that Iudgment temp Regin Eliz. the Quéens Title was avoided We must not presume that Wingate had a Title Ex diuturnitate temporis omnia presumuntur solemniter esse acta That Quare Impedit was brought when the matter was fresh Without doubt Danson would have asserted his Title against Wingate if he had had any The Defendant did not do prudently in conveying a Title to his Patron under the Grant made to Danson but issue being taken upon the Quéens dying seized he shall not be concluded to give in Evidence any other Title to maintain the Issue Vpon which Evidence the Iury found for the Defendant that Queen Elizabeth did not die seized North said He was clearly of Opinion That the Kings Title by Vsurpation should be avoided by a Recovery against his Clerk though the Recoverer were a meer stranger The Company of Stationers against Seymour THe Company brought an Action of Debt against Seymour for printing Gadbury's Almanacks without their leave Vpon a special Verdict found the question was Whether the Letters Patents whereby the Company of Stationers had granted to them the sole printing of Almanacks were good or not The Iury found the Stat. of 13 14 Car. 2. concerning Printing They found a Patent made by King James of the same Priviledge to the Company in which a former Patent of Queen Elizabeths was recited and they found the Letters Patents of the King that now is Then they found that the Defendant had printed an Almanack which they found in his verbis figuris and that the said Almanack had all the essential parts of the Almanack that is printed before the Book of Common Prayer but that it has some other additions such as are usual in common Almanacks c. Pemberton The King may by Law grant the sole-printing of Almanacks The Art of Printing is altogether of another consideration in the eye of the Law than other Trades and Mysteries are the Press is a late Invention But the Exorbitancies and Licentiousness thereof has ever since it was first found out been under the care and restraint of the Magistrate For great Mischiefs and Disorder would ensue to the Common-wealth if it were under no Regulation and it has therefore always been thought fit to be under the Inspection and Controul of the Government And the Stat. 14. Car. 2. recites that it is a matter of publique Care In England it has from time to time been under the Kings own Regulation so that no Book could lawfully be printed without an Imprimatur granted by some that derive authority from him to Licence Books But the question here is not Whether the King may by Law grant the sole-Printing of all Books but of any and of what sort of Books the sole-printing of Law-Books is not now in question that seémed to be a point of some difficulty because of the large extent of such a Patent and the uncertainty of determining what should be accounted a Law-Book and what not And yet such a Patent has been allowed to be good by a Iudgment in the House of Péers When Sir Orlando Bridgeman was Chief Justice in this Court there was a question raised concerning the validity of a Grant of the sole-printing of any particular Book with a Prohibition to all others to print the same how far it should stand good against them that claim a Property in the Copy paramount to the Kings Grant and Opinions were divided upon the Point But the Defendant in our Case makes no Title to the Copy only he pretends a nullity in our Patent The Book which this Defendant has printed has no certain Author and then according to the Rule of our Law the King has the property and by consequence may grant his Property to the Company Cur. There is no difference in any material part betwixt this Almanack and that that is put in the Rubrick of the Common-Prayer Now the Almanack that is before the Common-Prayer proceeds from a publick Constitution it was first setled by the Nicene Council is established by the Canons of the Church and is under the Government of the Archbishop of Canterbury So that Almanacks may be accounted Prerogative Copies Those particular Almanacks that are made yearly are but applications of the general Rules there laid down for the moveable Feasts for ever to every particular year And without doubt this may be granted by the King This is a stronger Case than that of Law-Books which has been mentioned The Lords in in the Resolution of that Case relyed upon this That Printing was a new Invention and therefore every man could not by the Common Law have a liberty of printing Law-Books And since Printing has been invented and is become a common Trade so much of it as has been kept inclosed never was made common but matters of State and things that concern the Government were never left to any mans liberty to print that would And particularly the sole Printing of Law-Books has been formerly granted in other Reigns Though Printing be a new Invention yet the use and benefit of it is only for men to publish their Works with more ease than they could before Men had some other way to publish their Thoughts before Printing came in and forasmuch as Printing has always been under the Care of the Government since it was first set on foot we may well presume that the former way was so too Queen Elizabeth King James and King Charles the First granted such Patents as these and the Law has a great respect to common usage We ought to be guided in our Opinions by the Iudgment of the House Peérs which is express in the point the ultimate resort of Law and Iustice being to them There is no particular Author of an Almanack and then by the Rule of our Law the King has the Property in the Copy Those additions of Prognostications and other things that are common in Almanacks do not alter the Case no more than if a man should claim a property in another mans Copy by reason of some inconsiderable
Modern Reports OR SELECT CASES Adjudged in the COURTS OF Kings Bench Chancery Common-Pleas and Exchequer since the Restauration of HIS MAJESTY King Charles II. Collected by a Careful Hand LONDON Printed for T. Basset J. Wright R. Chiswell and S. Heyrick MDCLXXXII THE PUBLISHER TO THE READER THese Reports the first except the Lord Chief Justice Vaughans Arguments that have been yet printed of Cases adjudged since His Majesties happy Restauration though they are not Published under the Name of any Eminent Person as some other Spurious Ones have been to gain thereby a Reputation which in themselves they could not Merit yet have been Collected by a Person of Ability and Judgment and Communicated to several of known Learning in the Laws who think them not Inferior to many Books of this Nature which are admitted for Authority A great and well-spread Name may be Requisite to render a Book Authentick and to defend it from that common Censure of which this Age is become so very liberal But it s own worth is that only which can make it Vseful and Instructive The Reader will find here several Cases as well such as have been Resolved upon our modern Acts of Parliament as others relating to the Common Law which are primae Impressionis and not to be found in any of the former Volumns of the Law and the Pith and Substance of divers Arguments as well as Resolutions of the Reverend Judges on many other weighty and difficult Points And indeed though in every Case the main thing which it behoves Vs to know is what the Judges take and define to be Law yet the short and concise way of reporting it which is affected in some of our Books doth very scantily answer the true and proper end of reading them which is not only to know what is Law but upon what Grounds and Reasons 't is adjudged so to be otherwise the Student is many times at a loss and left in the dark especially where he finds other Resolutions which seem to have a tendency to the contrary Opinion In this respect these Reports will appear to be more satisfactory and inlightning than many others several of the Cases especially those of the most important Consideration containing in a brief and summary way what hath been offered by the Counsel Pro and Con and the Debates of the Reverend Judges as well as their Vltimate Resolutions than which nothing can more Contribute to the Advantage of the studious Reader and to the setling and guidance of his judgment not only in the Point controverted but likewise in other matters of Law where the Reason is the same Ubi eadem ratio idem jus As to the truth of these Reports though the modesty of the Gentleman who Collected them hath prevailed above the importunity of the Book-Seller and he hath rather chosen to see his Book than himself gain the Publick Acceptation and Applause whereby it hath lost some seeming Advantage which the prefixing of his Name would have undoubtedly given it yet the Reader may rest assured that no little Care hath been taken to prevent any Mistakes or Mis-representations The Judgments having been examined and the Authorities here cited industriously compared with the Books out of which they were taken A TABLE of the Names of CASES contain'd in this Book A. ABbot and Moor. 12 Jacob Aboab 107 Addison versus Sir John Otway 250 Alford and Tatnel 170 Amie and Andrews 166 Anonymus 75 81 89 105 113 163 169 170 180 185 200 209 211 213 216 249 253 258 272 Daniel Appleford 82 Atkinson and Rawson 208 Austin and Lippencott 99 B. BAker and Bulstrode 104 Bascawin and Herle versus Cook 223 Bassett and Bassett 264 Barker and Reate 262 Barrow and Parrott 246 Barry and Trebeswycke 218 Sir Anthony Bateman's Case 76 Bear and Bennett 25 Beckett and Taylor 9 Benson and Hodson 108 Birch and Lake 185 Bird and Kirke 199 Birrel and Shaw 24 Blackburn and Graves 102 120 Blissett and Wincott 13 Blythe and Hill 221 225 Bonnefield 70 Boswill and Coats 33 Bradcatt and Tower 89 Brooking and Jennings 174 Brown versus 118 Brown versus London 285 Buckly and Turner 43 Buckly and Howard 186 Bucknal and Swinnock 7 Butler and Play 27 Burgis and Burgis 114 Burnett and Holden 6 Burrow and Haggett 219 C. CAlthrop and Philippo 222 Caterall and Marshall 70 Clerk versus Rowel and Phillips 10 Clerk and Heath 11 Cockram and Welby 245 Cole and Forth 94 Compton and uxor versus Ireland 194 Coppin and Hernall 15 Cox and St. Albanes 81 and Crisp versus the Mayor of Berwick 36 Crofton 34 D. COrporation of Darby 6 Darbyshire and Cannon 21 Davies and Cutt. 231 Daw and Swaine 4 Deering and Farrington 113 Delaval versus Maschall 274 Dodwell and uxor versus Burford 24 Draper and Bridewell 121 Sir Francis Duncomb's Case 285 Dyer and East 9 E. ELlis and Yarborough 227 Edwards and Weeks 262 F. FArrer and Brooks 188 Farrington and Lee. 268 Fettyplace versus 15 Fitsgerard and Maschal 90 Fits and al. versus Freestone 210 Fountain and Coke 107 Fowl and Doble 181 Fox and al. Executors of Pinsent versus Tremayn 47 72 296 Franklyn's Case 68 Furnis and Waterhouse 197 Fry and Porter in Chancery 300 G. GAvel and Perked 31 Gayle and Betts 227 Glever and Hynde 168 Goodwin and Harlow 2 Gostwick and Mason 3 Grafton 10 Green and Proude 117 H. HAll and Wombell 7 Hall and Sebright 14 Jacob Hall's Case 76 Hall and Booth 236 Haley's Case 195 Haman and Truant 72 Haman and Howell 184 against the Hambourough Company 212 Owen Hanning's Case 21 Harwood 77 79 Haspurt and Wills 47 Hastings 23 Healy and Warde 32 Heskett and Lee. 48 Higden versus Whitechurch 224 Holloway 15 Horn and Ivy. 18 Horn and Chandler 271 Horton and Wilson 167 Hoskins versus Robins 74 Howell and King 190 Hughes and Underwood 28 Humlock and Blacklow 64 I. JAmes and Johnson 231 Jefferson and Dawson 29 Jemy and Norrice 295 Ingram versus Tothill and Ren. 216 Jones and Tresilian 36 Jones and Wiat. 206 Jones and Powel 272 Jordan and Fawcett 50 Jordan and Martin 63 Justice and White 239 K. The King versus Baker 35 Morrice 68 Leginham 71 Holmes 73 Sir Francis Clark 195 Thornbor ' and Studly 253 The Bishop of Worc. Jervason and Hinkly 276 Leginham 288 Neville 295 King versus Standish 59 Sir John Kirle versus Osgood 22 Knowles versus Richardson 55 L. LAke versus King 58 Lampiere and Meriday 111 Lassells and Catterton 67 Lee and Edwards 14 Doctor Lee's Case 282 Legg and Richards 77 Leginham and Porphery 77 Lepping and Kedgewin 207 Liese and Satingstone 189 Love versus Wyndham and Wyndham 50 Lucy Lutterell versus George Reynell George Turbervile John Cory and Anne Cory 282 M. MAddox 22 Magdalen-Colledge Case 163 Major and Stubbing versus Bird and Harrison 214 Maleverer and Redshaw 35 Manby and Scot. 124 Martin and Delboe 70 Medlicot and Joyner 4 Gabriel Miles's Case 179
best Beast upon the Tenancy it must come on the other side to shew that it was not the Tenants Beast Keel The Cattel of a Stranger cannot be distrained unless they were levant couchant but it must come on the other side to show that they were not so So Judic pro Quer ' Wayman Smith AProhibition was prayed to the Court of Bristol upon this suggestion viz. That the cause of Action did not arise within the Iurisdiction of the Court Winnington There was a case here between Smith Bond Hill 17 Car. 2. Rot. 501. a Prohibition to Marleborough the suggestion grounded on Westm 1. cap. 34. granted And there needs not a Plea in the Spiritual Court to the Iurisdiction for that he cited F. N. B. 49. But he said he had an Affidavit that the cause of Action did arise out of their Iurisdiction Twisden I doubt you must plead to the Iurisdiction of the Court I remember a case here wherein it was held so and that if they will not allow it then you must have a Prohibition Winnington Fitzherbert is full Ruled that the other side shall shew cause why a Prohibition should not go and things to stay Humlock Blacklow DEbt upon a Bond for performance of Covenants in Articles of agreement The Plaintiff covenanted with the Defendant to assign over his Trade to him and that he should not endeavour to take away any of his Customers and in consideration of the performance of these Covenants the Defendant did Covenant to pay the Plaintiff 60 l. per annum during his life Saunders The words in consideratione performationis make it a Condition precedent which must be averred 3 Leon. 219. and those Covenants must be actually performed Twisden How long must he stay then till he can be entitled to his Annuity as long as he lives for this Covenant may be broken at any time That 's an Exposition that corrupts the Text. Judic nisi c. It was moved by one Hunt that the Venue might be changed in an Action of Indebitat Assumpsit brought by Mr. Wingfield Jones I conceive it ought not to be changed being in the case of a Counsellor at Law by reason of his attendance at this Court. Twisd In Mr. Bacon's case of Grays-Inn they refused to change the Venue in the like case So not granted An Indictment against one Morris in Denbigh-shire for Murther was removed into the Kings Bench by Certiorari to prevent the Prisoners being acquitted at the Grand-Sessions and the Court directed to have an Indictment found against him in the next English County viz. at Shrewsbury Vide infra Taylor Rouse Church-wardens of Downham versus their Predecessors THe Action was to make them Account for a Bell. They plead that they delivered it to a Bell-founder to mend and that it is yet in his hands The Plaintiff demurs the cause of his Demurrer was that this was no good Plea in Bar of the Account though it might be a good Plea before Auditors 1 Roll 121. Pemberton I conceive it is a good Plea for wherever the matter or cause of the Account is taken off the Plea is good in Bar. But he urged that the Action was brought for taking away bona Ecclesiae and not bona Parochianorum as it ought to have been Court The Property is not well laid So ordered to mend all and plead de novo Term. Mich. 22 Car. II. 1670. in B. R. AN Inquisition was returned upon the Statute against pulling down Inclosures They took Issue as to the damages only It was moved that before the Trial for the damages there might be Iudgment given to have them set up again having been long down Twisden When you have Iudgment for the damages then one Distringas will serve for setting up the Inclosures and the damages too As in an Action where part goes by default and the other part is traversed you shall not take out Execution till that part which is traversed be tried Vpon a motion by Mr. Dolbin for an Attachment Twisden said if a man has a Suit depending in this Court and be coming to Town to prosecute or defend it here he cannot be sued elsewhere But if a man come hither as a Witness he is protected eundo redeundo Wootton Heal. AN Action of Covenant was brought upon a Warranty in a Fine a term for years being Evicted Saunders I acknowledge that an Action of Covenant does well lye in this case but the Plaintiff assigns his breach in this viz. that one Stowell habens legale jus titulum did enter upon him and evict him which perhaps he did by virtue of a title derived from the Plaintiff himself 2 Cro. 315. Kirby Hansaker Jones contra To suppose that Stowell claimed under the Plaintiff is a foreign intendment and it might as well come on the Defendants side to show it And since that case in 2 Crook the Statute of 21 Jac. and the late Act have much strengthned Verdicts Twisden The Statutes do not help when the Court cannot tell how to give Iudgment The Plaintiff ought to entitle himself to his Action and it is not enough if the Iury entitle him Jones You have waived the title here and relyed upon the Entry of the Issue only which is non intravit c. Cur. advisare vult Lassells Catterton AN Action of Covenant for further assurance the Covenant being to make such Conveyance c. as Counsel should advise they alledge for breach that they tendred such a Conveyance as was advised by Counsel viz. a Lease and Release and set it forth with all the usual Covenants Levings moved in Arrest of Iudgment I conceive they have tendred no such Conveyance as we are bound to execute for we are not obliged to Seal any Conveyance with Covenants nor with a Warranty Besides that which they have tendred has a Warranty not only against the Covenantor but one Wilson 2 Cro. 571. 1 Rolls 424. Again our Covenant is to convey all our Lands in Bomer and the Conveyance tendred is of all our Lands in the Lordship of Bomer Twisden For the last exception I think we shall intend them to be both one And I know it hath been held that if a man be bound to make any such reasonable assurance as Counsel shall advise usual Covenants may be put in for the Covenant shall be so understood But there must not be a Warranty in it though some have held that there may be a Warranty against himself but I question whether that will hold But Weston on the other side said that the Objection as to the Warranty was fatal and he would not make any defence The King versus Morris Vid. sup MR. Attorney Finch shewed cause why a Certiorari should not be granted to remove an Indictment of Murder out of Denbighshire in Wales Twisden In 2 Car. 8 Car. it was held that a Certiorari did lye into Wales Morton By 34 H. 8. the Iustices
this whole Court in the case of Barnadiston and Soames that the Action for the double Retorn could not be brought in this Court before the Parliament had determined the right of the Election lest there should be a difference between the Iudgments of the two Courts When a Iudgment of the Lords comes into this Court though it be of the reversal of a Iudgment of this Court this Court is obliged to execute it but the Iudgment was never examined or corrected here In the case of my Lord Hollis it was resolved that this Court hath no Iurisdiction of a misdemeanour commited in the Parliament when the Parliament is determined the Iudges are Expositors of the Acts and are intrusted with the lives liberties and fortunes of the Subjects And if the Sessions were determined the Earl might apply himself to this Court for the Subject shall not be without place where he may resort for the recovery of his liberty but this Session is not determined For the most part the Royal Assent is given the last day of Parliament as saith Plow Partridges case Yet the giving of the Royal Assent doth not make it the last day of the Parliament without a subsequent Dissolution or Prorogation And the Court Iudicially takes notice of Prorogations or Adjournments of Parliament Cro. Jac. 111. Ford versus Hunter And by consequence by the last Adjournment no Order is discontinued but remains as if the Parliament were actually assembled Cro. Jac. 342. Sir Charles Heydon's case so that the Earl ought to apply himself to the Lords who are his proper Iudges It ought to be observed that these Attempts are primae Impressionis and though Imprisonments for Contempts have been frequent by the one and the other House till now no person ever sought enlargement here The Court was obliged in Iustice to grant the Habeas Corpus but when the whole matter being disclosed it appears upon the Return that the case belongs ad aliud examen they ought to remand the party As to the limitation of the Imprisonment the King may determine his pleasure by Pardon under the Great Seal or Warrant for his discharge under the Privy Seal as in the case of Reniger Fogassa Plow 20. As to the Exception that no Commitment is returned the Constable can only shew what concerns himself which is the Warrant to him directed and the Writ doth not require him to return any thing else As to the Exception that he is otherwise named in the Commitment then in the Writ the Writ requires the body of Anthony Earl of Shaftesbury quocunque nomine Censeatur in the Commitment The Court delivered their Opinion and first Sir Thomas Jones Justice said such a Retorn made by an ordinary Court of Iustice would have been ill and uncertain but the case is different when it comes from this high Court to which so great respect hath been paid by our Predecessors that they deferred the determination of doubts conceived in an Act of Parliament until they had received the advice of the Lords in Parliament But now instead thereof it is demanded of us to comptroll the Iudgment of all the Peers given on a Member of their own House and during the continuance of the Session The cases where the Courts of Westminster have taken cognizance of Priviledge differ from this case for in those it was only an incident to a case before them which was of their cognizance but the direct point of the matter now is the Iudgment of the Lords The course of all Courts ought to be considered for that is the Law of the Court Lane's case 2 Rep. And it hath not been affirmed that the usage of the House of Lords hath been to express the matter more punctually on Commitments for Contempts And therefore I shall take it to be according to the course of Parliament 4 Inst 50. it is said that the Iudges are Assistants to the Lords to inform them of the Common Law but they ought not to judge of any Law Custom or usage of Parliament The objection as to the continuance of the Imprisonment hath received a plain answer for it shall be determined by the pleasure of the King or of the Lords and if it were otherwise yet the King could pardon the Contempt under the Great Seal or discharge the Imprisonment under the Privy Seal I shall not say what would be the consequence as to this Imprisonment if the Session were determined for that is not the present case but as the case is this Court can neither Bail nor discharge the Earl Wyld Justice The Retorn no doubt is illegal but the question is on a point of Iurisdiction whether it may be examined here this Court cannot intermeddle with the transactions of the high Court of Peers in Parliament during the Session which is not determined and therefore the certainty or uncertainty of the Retorn is not material for it is not examinable here but if the Session had béen determined I should be of Opinion that he ought to be discharged Rainsford Chief Justice This Court hath no Iurisdiction of the cause and therefore the form of the Retorn is not considerable we ought not to extend our Iurisdiction beyond its due limits and the Actions of our Predecessors will not warrant us in such Attempts The consequence would be very mischievous if this Court should deliver the Members of the Houses of Peers and Commons who are committed for thereby the business of the Parliament may be retarded for perhaps the Commitment was for evil behaviour or undecent Reflections on the Members to the disturbance of the affairs of Parliament The Commitment in this case is not for safe custody but he is in Execution on the Iudgment given by the Lords for the Contempt and therefore if he be bailed he will be delivered out of Execution because for a Contempt in facie Curiae there is no other Iudgment or Execution This Court hath no Iurisdiction of the matter and therefore he ought to be remanded And I deliver no Opinion if it would be otherwise in case of Prorogation Twisden Justice was absent but he desired Justice Jones to declare that his Opinion was that the party ought to be remanded And so he was remanded by the Court. Term. Trin. 26 Car. II. 1674. in B. R. Pybus versus Mitford ante 121. THis case having been several times argued at the Bar received Iudgment this Term. The case was Michael Mitford was seised of the Lands in question in Fee and had Issue by his second wife Ralph Mitford and 23. Jan ' 21 Jac. by Indenture made betwéen the said Michael of the one part and Sir Ralph Dalivell and others of the other part he covenanted to stand immediately seised after the date of the said Indenture amongst others of the Lands in question by these words viz. To the use of the Heirs Males of the said Michael Mitford begotten or to be begotten on the body of Jane his wife the
Man brings an Action of Debt against B. Sheriff of the County Palatine of Lancaster and sues him to an Outlawry upon mean Process and has a Capias directed to the Chancery of the County Palatine who makes a Precept to the Coroners of the County being six in all to take his body and have him before the Kings Iustices of the Court of Common-Pleas at Westminster such a day One of the Coroners being in sight of the Defendant and having a fair opportunity to Arrest him doth it not but they all return non est inventus though he were easie to be found and might have been taken every day Hereupon the Plaintiff brings an Action against the Coroners and lays his Action in Middlesex and has a Verdict for 100 l. Serj. Baldwin moved in Arrest of Iudgment that the Action ought to have been brought in Lancaster he agreed to the cases put in Bulwer's case 7 Rep. where the cause of Action arises equally in two Counties but here all that the Coroners do subsists and determines in the County Palatine of Lancaster for they make a Return to the Chancery of the County Palatine only and it is he that makes the Return to the Court He insisted upon Dyer 38 39 40. Husse Gibbs 2. He said this Action is grounded upon two wrongs one the not arresting him when he was in sight the other for returning non est inventus when he might easily have been taken now for the wrong of one all are charged and entire damages given He said two Sheriffs make but one Officer but the case of Coroners is different each of them is responsible for himself only and not for his Companion Serjeant Turner Pemberton contra They said the Action was well brought in Middlesex because the Plaintiffs damage arose here viz. by not having the body here at the day They cited Bulwer's case Dyer 159. b. the Chancery returns to the Court the same answer that the Coroners return to him so that their false Return is the cause of prejudice that accrues to the Plaintiff here The ground of this Action is the return of non est inventus which is the act of them all that one of them saw him and might have arrested him and that the Defendant was daily to be found c. are but mentioned as arguments to prove the false Return And they conceived an Action would not lie against one Coroner no more then against one Sheriff in London York Norwich c. But to the first exception taken by Baldwin they said admitting the Action laid in another County then where it ought yet after Verdict it is aided by the Statute of 16 17 Car. 2. if the Ven. come from any place of the County where the Action is laid it is not said in any place of the County where the cause of Action ariseth now this Action is laid in Middlesex and so the Trial by a Middlesex Iury good let the cause of Action arise where it will Cur̄ That Statute doth not help your case for it is to be intended when the Action is laid in the proper County where it ought to be laid which the word proper County implies But they inclined to give Iudgment for the Plaintiff upon the reasons given by Turner Pemberton Adjornatur Bird Kirke IT was resolved in this case by the whole Court 1. That if there be Tenant for life the Remainder for life of a Copy-hold and the Remainder-man for life enter upon the Tenant for life in possession and make a surrender that nothing at all passeth hereby for by his entry he is a Disseisor and has no customary Estate in him whereof to make a surrender 2. That when Tenant for life of a Copy-hold suffers a Recovery as Tenant in Fee that this is no forfeiture of his Estate for the Free-hold not being concern'd and it being in a Court-Baron where there is no Estoppell and the Lord that is to take advantage of it if it be a forfeiture being party to it it is not to be resembled to the forfeiture of a Free-Tenant that Customary Estates have not such accidental qualities as Estates at Common Law have unless by special Custom 3. That if it were a forfeiture of this and all other forfeitures committed by Copy-holders the Lord only and not any of those in Remainder ought to take advantage And they gave Iudgment accordingly North Chief Justice said that where it is said in King Lord's case in Cr. Car. that when Tenant for life of a Copy-hold surrenders c. that no use is left in him but whosoever is afterward admitted comes in under the Lord that that is to be understood of Copy-holds in such Mannors where the Custom warrants only Customary Estates for life and is not applicable to Copy-holds granted for life with a Remainder in Fee Anonymus A Writ of Annuity was brought upon a Prescription against the Rector of the Parish Church of St. Peter in c. the Defendant pleads that the Church is overflown with the Sea c. the Plaintiff demurs Serjeant Nudigate pro Querente The Declaration is good for a Writ of Annuity lies upon a prescription against a Parson but not against an heir F. N. B. 152. Rastall 32. the plea of the Church being drowned is not good at best it is no more then if he had said that part of the Glebe was drowned it is not the building of the Church nor the consecrated ground in respect whereof the Parson is charged but the profits of the Tythes and the Glebe Though the Church be down one may be presented to the Rectory 21 H. 7. 1. 10. H. 7. 13. 16 H. 7. 9. Luttrel's case 4 Rep. Wilmote contra The Parson is charged as Parson of the Church of St. Peter we plead in effect that there is no such Church and he confesseth it 21 Ed. 4. 83. Br. Annuity 39. 21 Ed. 4. 20. 11 H. 4. 49. we plead that the Church is submersa obruta c. which is as much a dissolution of the Rectory as the death of all the Monks is a dissolution of an Abbathie It may be objected that the Defendant has admitted himself Rector by pleading to it but I answer 1. An Estoppel is not taken notice of unless relyed on in pleading 2. The Plaintiff by his demurrer has confessed the Fact of our plea. By which mean the matter is set at large though we were estopped The Court was clearly of opinion for the Plaintiff The Church is the Cure of Souls and the right of Tythes If the material Fabrick of the Parish-Church be down another may be built and ought to be Judicium pro Quer ' nisi c. Term. Trin. 27 Car. II. in Communi Banco Vaughton versus Atwood alios TRespass for taking away some Flesh-meat from the Plaintiff being a Butcher The Defendant justifies by virtue of a Custom of the Mannor of c. that the Homage used
to chuse every year two Surveyors to take care that no unwholsome Victuals were sold within the Precinct of that Mannor and that they were sworn to execute their Office truly for the space of a year and that they had power to destroy whatever corrupt Victuals they found exposed to sale and that the Defendants being chosen Surveyors and sworn to execute the Office truly examining the Plaintiffs meat who was also a Butcher found a side of Beef corrupt and unwholsome and that therefore they took it away and burnt it prout eis bene licuit c. The Plaintiff demurs North. This is a case of great consequence and seems doubtful It were hard to disallow the Custom because the design of it seems to be for the preservation of mens health And to allow it were to give men too great a power of seizing and destroying other men's Goods There is an Ale-taster appointed at Leets but all his Office is to make Presentment at the Leet if he finds it not according to the Assize Wyndham Atkyns Ellis It is a good reasonable Custom It is to prevent evil and Laws for prevention are better then Laws for punishment As for the great power that it seems to allow to these Surveyors it is at their own peril if they destroy any Victuals that are not really corrupt for in an Action if they justifie by virtue of the Custom the Plaintiff may take issue that the Victuals were not corrupt But here the Plaintiff has confessed it by the demurrer Atkyns said if the Surveyors were not responsible the Homage that put them in must answer for them according to the rule of respondeat superior Iudgment was given for the Plaintiff unless c. Thredneedle Lynham's Case UPon a special Verdict the case was thus The Iury found that the Lands in the Declaration are and time out of mind had been parcel of the demesnes of the Mannor of Burniel in the County of Cornwall which Mannor consists of demesnes viz. Copy-hold tenements demisable for one two or three lives and services of divers Free-hold Tenants that within the Mannor of Burniel there is another Mannor called Trecaer consisting likewise of Copy-holds and Free-holds and that the Bishop of Exeter held both these Mannors in the right of his Bishoprick Then they find the Statute of 1. Eliz. in haec verba They find that the old accustomed yearly Rent which used to be reserved upon a demise of these two Mannors was 67 pounds 1 s. and 5 d. then they find that Joseph Hall Bishop of Exeter demised these two Mannors to one Prowse for 99 years determinable upon three lives reserving the old and accustomed Rent of 67 l. 1 s. and 5 d. that Prowse living the Cestuy que vies assigned over to James Prowse the demesnes of the Mannor of Trecaer for that afterwards he assigned over all his Interest in both Mannors to Mr. Nosworthy excepting the demesnes of Treacer then in the possession of James Prowse That Mr. Nosworthy when two of the lives were expired for a sum of money by him paid to the Bishop of Exeter surrendred into his hands both the said Mannors excepting what was in the possession of James Prowse and that the Bishop Joseph Hall's Successor redemised unto him the said Mannors excepting the demesnes of Trecaer and excepting one Messuage in the occupation of Robert and excepting one Farm parcel of the Mannor of Burniel for three lives reserving 67 l. 1 s. 5 d. with a nomine poenae and whether this second Lease was a good Lease and the 67 l. 1 s. 5 d. the old and accustomed Rent within the intention of the Statute of 1 Eliz. was the question After several arguments at the Bar it was argued at the Bench in Michaelmas Term Ann. 26 Car. 2. And the Court was divided viz. Vaughan Ellis against the Lease Atkyns Wyndham for it This Term North Chief Justice delivered his Opinion in which he agreed with Atkyns Wyndham so that Iudgment was given in maintenance of the Lease and the Iudgment was affirmed in the Kings Bench upon a Writ of Error The Chapter of the Collegiate Church of Southwell versus the Bishop of Lincoln and J. S. Incumbent c. IN a Qua. imp the Incumbents Title was under a grant made by the Plaintiffs who were seized of the Advowson ut de uno grosso in the right of their Church of the next avoidance one Esco being then Incumbent of their Presentation to Edward King from whom by mean assignments it came to Elizabeth Bley who after the death of Esco presented the Defendant Vpon a demurrer these points came in question 1. Whether the grantors were within the Statute of the 13 Eliz. or not 2. Whether a grant of a next avoidance be restrained by the Statute 3. If the grant be void whether it be void ab initio or when it becomes so And 4. Whether the Statute of 13 Eliz. shall be taken to be a general Law for it is not pleaded Serjeant Jones For the first point argued that the Grantors are within the Statute the words are Deans Chapters which he said might well be taken severally for of this Chapter there is no Dean If they were to be taken joyntly then a Dean were not within this Law in respect of those possessions which he holds in the right of his Deanry but the subsequent general words do certainly include them and would extend even to Bishops but that they are superiour to all that are expressed by name For the second he said the Statute restrains all gifts grants c. other then such upon which the old Rent c. He cited Cr. Eliz. 440. 5. Co. the case of Ecclesiastical persons 10 Co. the Earl of Salisbury's case For the third point he held it void ab initio it must be so or good for ever For here is no Dean after whose death it may become void as in Hunt Singleton's case the Chapter in our case never dies For the fourth point he argued that it is a general Law because it concerns all the Clergy Holland's case 4 Rep. Dumpor's case ibid. 120. b. Willmote contra North Chief Justice Atkyns Wyndham Ellis Iustices all agreed upon the three first points as Serjeant Jones had argued Atkyns doubted whether the 13 of Eliz. were a general Law or not but was over-ruled They all agreed that the Action should have been brought against the Patron as well as against the Ordinary and the Incumbent but that being only a plea in abatement that the Defendant has waived the benefit thereof by pleading in Bar. And Iudgment was given for the Plaintiff Nisi causa c. Hunt Singleton's case being mentioned Atkyns said he thought it a hard case considering that the Dean and the Chapter were all persons capable that a grant should hold in force as long as the Dean lived and determine then He thought they being a Corporation aggregate of
also for that they sued the Plaintiff in another Court knowing that he was an Attorney of the Common-Pleas and priviledged there Per tot ' Cur ' there is no cause of Action For put the case as strong as you will suppose a man be retained as an Attorney to sue for a debt which he knows to be released and that himself were a witness to the Release yet the Court held that the Action would not lye for that what he does is only as Servant to another and in the way of his Calling and Profession And for suing an Attorney in an inferiour Court that they said was no cause of Action for who knows whether he will insist upon his priviledge or not and if he does he may plead it and have it allowed Fits al. versus Freestone IN an Action grounded upon a promise in Law payment before the Action brought is allowed to be given in Evidence upon non Assumpsit But where the Action is grounded upon a special promise there payment or any other legal discharge must be pleaded Bringloe versus Morrice IN Trespass for immoderately riding the Plaintiffs Mare the Defendant pleaded that the Plaintiff lent to him the said Mare licentiam dedit eidem aequitare upon the said Mare and that by virtue of this Licence the Defendant and his Servant alternatim had rid upon the Mare The Plaintiff demurs Serj. Skipwith pro Quer ' The Licence is personal and incommunicable as 12 H. 7. 25. 13 H. 7. 13. the Dutchess of Norfolk's case 18 Ed. 4. 14. Serj. Nudigate contra This Licence is given by the party and not created by Law wherefore no Trespass lyeth 8 Rep. 146 147. per Cur ' the Licence is annexed to the person and cannot be communicated to another for this riding is matter of pleasure North took a difference where a certain time is limited for the Loan of the Horse and where not In the first case the party to whom the Horse is lent hath an interest in the Horse during that time and in that case his Servant may ride but in the other case not A difference was taken betwixt hiring a Horse to go to York and borrowing a Horse in the first place the party may set his Servant up in the second not Term. Pasch 28 Car. II. in Communi Banco Anonymus A Man upon marriage Covenants with his Wives relations to let her make a Will of such and such Goods she made a Will accordingly by her husbands consent and dyed After her death her Will being brought to the Prerogative Court to be proved a Prohibition was prayed by the Husband upon this suggestion that the Testatrix was foemina viro cooperta and so disabled by the Law to make a Will Cur ' Let a Prohibition go Nisi causa c. North. When a question ariseth concerning the Iurisdiction of the Spiritual Court as whether they ought to have the Probate of such a Will whether such a disposition of a personal Estate be a Will or not whether such a Will ought to be proved before a peculiar or before the Ordinary whether by the Archbishop of one Province or another or both and what shall be bona notabilia in these and the like cases the Common Law retains the Iurisdiction of determining there is no question but that here is a good surmise for a Prohibition to wit that the woman was a person disabled by the Law to make a Will the Husband may by Covenant depart with his right and suffer his Wife to make a Will but whether he hath done so here or not shall be determined by the Law we will not leave it to their decision it is too great an invasion upon the right of the Husband In this case the Spiritual Court has no Iurisdiction at all they have the Probate of Wills but a Feme-covert cannot make a Will If she disposeth of any thing by her Husbands consent the property of what she so disposeth passeth from him to her Legatee and it is the gift of the husband If the Goods were given into anothers hands in trust for the wife still her Will is but a Declaration of the trust and not a Will properly so called But of things in Action and things that a Feme-Covert hath as Executrix she may make a Will by her Husbands consent and such a Will being properly a Will in Law ought to be proved in the Spiritual Court. In the case in question a Prohibition was granted against the Hambrough Company THe Plaintiff brought an Action of Debt in London against the Hambrough-Company who not appearing upon Summons and a Nihil being returned against them an Attachment was granted to attach Debts owing to the Company in the hands of 14 several persons by Certiorari the cause was removed into this Court and whether a Procedendo should be granted or not was the question Serjeant Goodfellow Baldwin and Barrell argued that a debt owing to a Corporation is not attachable Serjeant Maynard Scroggs contra Cur ' We are not Iudges of the Customs of London nor do we take upon us to determine whether a debt owing to a Corporation be within the Custom of forrein Attachment or not This we judge and agree in that it is not unreasonable that a Corporation's debts should be attached If we had judged the Custom unreasonable we could and would have retained the cause For we can over-rule a Custom though it be one of the Customs of London that are confirmed by Act of Parliament if it be against natural reason But because in this Custom we find no such thing we will return the cause Let them proceed according to the Custom at their peril If there be no such Custom they that are aggrieved may take their remedy at Law We do not dread the consequences of it It does but tend to the advancement of Iustice and accordingly a Procedendo was granted per North Chief Justice Wyndham Ellis Atkyns aberat Anonymus PEr Cur ' if a man is indicted upon the Statute of Recusancy Conformity is a good plea but not if an Action of Debt be brought Parten Baseden's Case PArten brought an Action of Debt in this Court against the Testator of Baseden the now Defendant aâ—d had Iudgment After whose death there was a devastavit returned against the Defendant Baseden his Executor he appeared to it and pleaded and a special Verdict was found to this effect viz. that the Defendant Baseden was made Executor by the Will and dwelt in the same house in which the Testator lived and died and that before Probate of the Will he possest himself of the Goods of the Testator prized them inventoried them and sold part of them and paid a Debt and converted the value of the residue to his own use that afterwards before the Ordinary he refused and that upon his refusal administration was committed to the Widow of the deceased And the question was whether or no the
a distinction Our Saviour is called the Son of David though there were 28 Generations betwixt David and him And a republication may impose another sense upon words different from what they had when they were first written as if a man devise all his Lands in Dale and have but two Acres in Dale the words now extend to no more then those two Acres and if he purchase more and dye without any new publication the new purchased Lands will not pass But if there were a new publication after the purchase they would then pass well enough If a man has issue two Sons called Thomas and he makes a devise to his Son Thomas this may be ascertained by an averment Now suppose that Thomas the deviseé dye living the Father and afterward the Father publisheth his Will anew and says that he did intend that his Son Thomas now dead should have had his Land but now his Will and intent is that Thomas his younger Son now living shall take his Land by the same Will In this case to be sure the second Son Thomas shall take by the devise Here the import of the words is clearly altered by the republication Atkyns The words of this Will would not of themselves be sufficient to carry the Land to the Grand-child nor would the intention of the Devisor do it without them but both together do the business Quae non prosunt singula juncta juvant Wyndham Scroggs differed in Opinion and the cause was adjourned to be argued the next Term. North. A man admitted in forma pauperis is not to have a new Trial granted him for he has had the benefit of the Kings Iustice once and must acquiesce in it We do not suffer them to remove causes out of inferiour Courts They must satisfie themselves with the Iurisdiction within which their Action properly lieth Farrington Lee. ASsumpsit The Plaintiff declares upon 2 indebitatus Assumpsits and a third Assumpsit upon an insimul computasset The Defendant pleaded non Assumpsit infra sex annos the Plaintiff replied that himself is a Merchant and the Defendant his Factor and recites a clause in the Statute in which Actions of Account between Merchants and Merchants and Merchants and their Factors concerning their Trade and Merchandize are excepted and avers that this money became due to the Plaintiff upon an account betwixt him and the Defendant concerning Merchandise c. the Defendant makes an impertinent rejoynder to which the Plaintiff demurs Nudigate pro Querente This Statute is in the nature of a penal Law because it restrains the liberty which the Plaintiff has by the Common Law to bring his Action when he will and must therefore be construed beneficialy for the Plaintiff Pl. 54. Cr. Car. 294. Finche Lambe's case to this purpose Also this exception of Accounts between Merchants and their Factors must be liberally expounded for their benefit because the Law-makers in making such an exception had an eye to the incouragement of Trade and Commerce The words of the exception are other then such Accounts as concern the Trade of Merchandise c. now this Action of ours is not indeed an Action of Account but it is an Action grounded upon an Account And the Plaintiff being at liberty to bring either the one or the other upon the same cause of Action and one of the Actions being excepted expresly out of the limitation of the Statute the other by Equity is excepted also He cited Hill 17 Car. 1. in Marshe's Reports 151. Jones 401. Sandys Blodwell Mich. 13 Car. 1. and prayed Iudgment for the Plaintiff Serjeant Baldwin contra He said it did not appear in the Declaration that this Action was betwixt a Merchant and his Factor so that then the plea in bar is prima facie good And when he comes and sets it forth in his Replication he is too late in it and the replication is not pursuant to his Declaration But all the Court was against him in this Then he said the Statute excepted Actions of Account only and not Actions upon an indeb Assumpsit Cur ' Whereas it has been said by Serjeant Nudigate that the Plaintiff here has an Election to bring an Action of account or an Indebitat Assumpsit that is false for till the Account be stated betwixt them an Action of Account lies and not an Action upon the Case When the Account is once stated then an Action upon the case lies and not an Action of Account Et per North if upon an Indebitat Assumpsit matters are offered in evidence that lie in account I do not allow them to be given in evidence North Wyndham Scroggs the exception of the Statute goes only to Actions of Account and not to other Actions And we take a diversity betwixt an account current and an account stated After the account stated the certainty of the Debt appears and all the intricacy of account is out of doors and the Action must be brought within six years after the account stated But by North if after an account stated upon the ballance of it a sum appear due to either of the parties which sum is not paid but is afterward thrown into a new account between the same parties it is now slip't out of the Statute again Scroggs The Statute makes a difference betwixt Actions upon Account and Actions upon the case The words would else have been All Actions of Account and upon the Case other then such Actions as concern the Trade of Merchandise But it is otherwise penned other then such Accounts as concern c. and as this case is there is no account betwixt the parties the account is determined and the Plaintiff put to his Action upon an insimul computasset which is not within the benefit of the exception Atkyns I think the makers of this Statute had a greater regard to the persons of Merchants then the causes of Action between them And the reason was because they are often out of the Realm and cannot always prosecute their Actions in due time The Statute makes no difference betwixt an account current and an account stated I think also that no other sort of Tradesmen but Merchants are within the benefit of this exception and that it does not extend to Shop-kéepers they not being within the same mischief Adjurnatur Horn versus Chandler COvenant upon an Indenture of an Apprentice wherein the Defendant bound himself to serve the Plaintiff for seven years The Plaintiff sets forth the custom of London That any person above 14 and under 21 unmarried may bind himself Apprentice c. according to the custom and that the Master thereupon shall have tale remedium against him as if he were 21 and alledges that the Defendant did go away from his Service per quod he lost his Service for the said term which term is not yet expired The Defendant pleads a frivolous plea. To which the Plaintiff demurs Heley Though such a Covenant shall
Obligation I agreed with Copping versus Hornar and Bernard versus King That where an Vmpire is at first certainly named and appointed he cannot exercise his authority within the time appointed to the Arbitrators because the same authority cannot be given to and continue both in the Arbitrators and Vmpire at the same time But when the Vmpire is named and chosen by the Arbitrators as in our Case he may make his award within the time allowed to the Arbitrators because cause there the Arbitrators by their own action viz. the election of the Vmpire determine their authority And the authority vests and remains in the Vmpire only and so it was admitted in Bernard versus King Twisden assentibus Rainsford Morton This is a good part of the Condition There was a Condition That if the Obligor should c. then the Bond should be void and further that the Obligor should release And it was adjudged here That the last was a part of the Condition I was at the Bar when the Case betwixt Barnard and King was spoken to and I know Roll did hold and deliver then That if it had been alledged that the Arbitrators had wholly denied and deserted their power it had let in the Vmpire so as that he might account within the time allowed to the Arbitrators and he stood upon this then that it was implicitely alledged viz. Postquam denegassent c. But this was a hard Opinion of his and he himself reports his own judgment otherwise 1 Ro. 262. It may be he altered his Opinion we inclin'd that the award in the Case at the Bar is naught For the authority of the Arbitrators was not determined till after the 19th of February For Iustice Croke goes so far 1 Cr. 263. as to agree That Arbitrators may nominate an Vmpire within the time for their making their award So that the chusing the Vmpire doth not extinguish their authority and therefore the Vmpire could not make an award upon this 19th of February It is true the Arbitrators might chuse him upon that day or before But yet still they might have made an award and therefore he could not Adjournatur Rex versus Episcopum Worcest ' Jervason Hinkley in Communi Banco See the Case put at large in Vaughan's Reports The Arguments of Justice Wild Archer and Tyrrel were as follow The Chief Justices Argument is here omitted because published at large in his own Reports JUstice Wild. I think the King cannot take the traverse in this Case and this will appear by looking upon the old Books which were not well considered by those who did reply 13 H. 7. 13. 14. Pl. 18. It is said the King may chuse either to maintain his own Title or traverse the Title of the party who sues him by Petition So 13 E. 4. 8. pl. 1. It is said when one traverses an Office the King may either maintain the Office or traverse the Title shewn for the party because no man shall recover Lands against the King without having a Title But there it is Resolved That if the King joyn issue upon his own Title he cannot change issue and traverse the Title shewed for the party Now here is the allegation of the King that the Advowson was in gross and the Defendants denying it is in nature of joyning an issue which cannot be receded from But the reason why in that Case the King might wave the traverse tendered to his Title and traverse the Title shewn for the party is because the Office puts the King in actual possession for where the King is in by Record or possession for possession is enough the party must make a Title if he will recover against the King Keil 192. pl. 3. Savages Case It was found by Inquisition that whereas the Turn time out of mind used to be held at Worcester he being Sheriff for life held it at Pedyl and Streight Contra formam Statuti de magna Charta upon a Scire fac upon an Information hereupon for forfeiting the Office He pleads that time out mind c. it used to be held at Pedyl c. absque hoc that it used to be held at Wâ—â—â—ester Resolved That the King might maintain the Inquisition that it used to be held at Worcester absque hoc that it used to be held at Pedyl c. and the reason is because the King was intituled to the Forfeiture by a Record The difference is where the King is Actor as here he is being out of possession he must make a Title and prove it But where the party is Actor he cannot fix upon his own Title and force the King to make good his own Title 34 H. 8. Br. Prerog 116. Whorewood's Case is full in point In an Information tam quam if the Defendant traverse the King cannot wave the issue so tendered One Reason indeed given is because the King is not sole party But the chief reason is because the King is not intituled by matter of Record For saith the Book There is no Office found before the Information But upon a traverse of an Office hujusmodi saith the Book the King may do it because he is intituled by matter of Record therefore in our Case the King shall not wave the issue tendered c. and fly upon the matter of the Defendants Title Archer accordant It must be admitted that in this Case the King must make a Title because by presenting of Tim. White and also of Hinkley the Defendant the which was nine years since he is put to his Quare Impedit and is out of possession I do not say of the Inheritance though that hath been a question in the old Books V. 2. Cr. 53. But it has been adjudged That the Inheritance cannot be gained or devested out of the King by any Vsurpations 2 Cr. 123. 3 Cr. 241. 519. and Green's 6 Co. 30. a. But that he may grant away the Inheritance of the Advowsons still c. But it is as clear and agreéd by all those Books and Boswell's Case 6 Co. 49 50. that in such case he must bring a Quare Impedit to recover the Presentation for he is put out of possession of that For as my Lord Hob. 322. observes it is one of the things whereupon Vsurpation works more violently than upon other possessions Now he that is thus out of possession and put to his Quare Impedit must always make a Title to himself in the Declaration Hob. 102. and this the Defendant cannot counterplead but by conveighing a Title to himself and so avoiding the Plaintiffs alledged Title by traverse or confessing and avoiding Hob 163. Now here the Defendant hath done what he could do he hath traversed the Kings Title why then shall 〈◊〉 King depart from his own Title and fly upon the defectâ—â—â— Title of the Defendant No. Actori incumbit onus he must recover by his own strength not by the Defendants weakness The Defendant by traversing the Kings