23. 3 E. 3. 330 305. Besides the party is not bound to tarry till the Bailiffs come in and beat him 2 H. 4. 8. 19 H. 6. 31. 34 H. 6. 16. 43 Ass. pl 31. 3. This Authority which is given to the Kings Officer is given by the Law and if he execute it according to the Law the Law will protect him but if he exceed the priviledge given him by the Law then all he doth is illegal and he loseth its protection And he resembled it to the 6 Carpenters case C. 6. part Farther one may pretend he hath such a warrant when he hath it not of purpose to rob or do some other mischief And it was agreed by all the Justices nullo contradicente that it was not Murder but that it was Manslaughter for this reason especially because the Officer was doing an unlawful act not warranted by Law and therefore it was at his peril if he were killed And farther upon this difference there ought to be malice in fact or in Law to make Murder but in this Case there is none of them for it is apparent that there was no malice in fact and there is no malice implied for then it ought to be where a man kills another without any provocation or the Minister of Justice in the due and lawful execution of his Office which is not our Case for here he did an unlawful act at the time he was killed and therefore it was not Murder but Manslaughter There was a Case tried at the Sessions in the Old-Baily which was thus One Lovell had two Maid-servants and one of them without his knowledge had received into the house a Chare-woman who all being in their beds by her negligence let a Thief into the house and afterwards called out Thieves Thieves and afterwards Lovell came out of his Bed with a Sword in his hand and the Chare-woman calling to mind that she was there without his privity or his wifes hid her self behind the Dresser and Lovell's wife espying her there cried out Thieves Thieves for which Lovell came and ran her into the brest with his Sword And the Opinion of the Justices at the Old-Baily and also of all the Justices of the Kings Bench was That it was neither Murder nor Manslaughter Not Murder because there was no forethought malice not Manslaughter because he supposed her to be a Thief and if she had been a Thief then it was clear that it was not Manslaughter 8. It was resolved in the Chancery as the Judges of the Kings Bench said That where the Son is of full age and is ravished that the Father shall not recover Damages because the Son being of full age might marry himself without the consent of the Father and that was the reason given as I conceive and the Case was said to be Sir Francis Lees Case 9. The Book of Canons is that the Parson may Elect one Church-warden and the Parishioners another 10. There can be no Surrender without the Consent of the Reversioner 11. It was Libelled in the Ecclesiastical Court for these words Thou art a Drunkard or usest to be drunk thrice a week And thereupon Prohibition was Prayed and Granted and it was said and agreed That so it was adjudged betwixt Vinior and Vinior in this Court The Case in Dyer 254. b. where the Presentee was refused because he was a common haunter of Taverns c. was by Justice Barckley denied to be Law and so agreed by Justice Iones the Lord Chief Justice and Justice Crooke being absent But Justice Barckley was utterly against the Prohibition 1. Because the Action in the Ecclesiastical Court is only pro salute animae And 2. Because that Drunkenness is in their Articles and Presentable But Justice Iones granted a Prohibition and said that Linwood said well That if all things which are against the Law of God or words to that effect should be tried in the Ecclesiastical Court the Jurisdiction of the Temporal Court should utterly be destroyed 12. If there be an Indictment of Forcible Entry if it appear that the Plaintiff had seisin at the time of the Writ brought there can be no Writ of Restitution for the Statute â—aith If he Enter with Force or keep him out with Force but yet in that case the King shall have his Fine And there was an Indictment which was a principal Case at Bar which was That the Defendant adtunc adhuc doth keep the possession forcibly whereas the Plaintiff was in possession And thereupon a Writ of Restitution was awarded by reason of the word adhuc 3 E. 4. 19. it was adjudged That where there is Forcible Entry and Reteiner with Force that both are punishable although the Statute of 8 H. 6. 9. be in the disjunctive 13. Descent of a Copy-hold shall not take away Entry There ought to be a custome to enable the Lord of a Mannor to grant a Copy-hold in Reversion 14. In the Council of Marches of Wales they proceed according to Directions and they cannot exceed them and they 〈…〉 with Freehold for it is not within their 〈…〉 And they cannot hold Plea of Debt above fifty poundâ— 15. An Assignment of Rent to a Woman out of Land of which she is Dowable by Word is good but if she be not Dowable of the Land then the Assignment by Word is not good and void because that in the first Case it is according to common Right but in the last not 33 H. 6. 16. In a Writ of Error to Reverse a Judgment in an Action of Debt upon an Arbitrament the Error assigned was this That two did refer themselves to Arbitrament of their two several Arbitrators and there is no word of Submission that the same is Error and there was Error in the Entry of the Judgment the entry of which was in this manner Consideratum est and per Curiam is omitted and left out And for these Errors the Judgment was Reversed Smith's Case 17. ONe said of him Thou art forsworn and hast taken a false Oath at Hereford Assises against such a one naming the party And the Opinion of the Court the Chief Justice and Justice Crooke being absent was against the Action But they conceived that the Action would have lied if the Defendant had said Thou art forsworn and hast taken a false Oath at the Assises against such an one with Averment that he was sworn in the Cause 18. It was said at the Bar That it was adjudged in this Court in Appletons Case That where a man said unto another by way of Interrogatory Where is my Piece thou stolest from me that it was actionable Justice Iones remembred this case where one said J. S. told me that J. N. stole a Horse but I do not believe him This with Averment that I. S. did not say any such thing would bear an Action Justice Barkley said That an Action was brought upon these words You are no Thief and that these words with Averment which
which agrees 11 Rep. Auditor Curles Case The 5 Question Whether it be within the Statute of 1 Eliz. And I hold it is not because that must take effect from the time of the granting of it as the Statute speaks 6. I conceive it is not a necessary Grant because it is not within the exception of the Statute Et exceptio firmat Regulam It was objected That Usage makes these Grants good I conceive the contrary That Usage is not a Rule to measure a thing whether it be convenient or not And a grant may be good which is not used And the Courts of Justice ought to judge what is convenient or necessary and what not So in Litt. and the Commentaries Say and Smiths case Besides it is not Necessary for he stands but for a Cypher and doth nothing and therefore not Necessary Besides it is inconvenient and takes from the Successor honorem munificentiae for by the same reason that he may grant one he may grant all the Offices in Reversion so as his Successors shall not have one to grant and by this means shall take away a flower of the Bishoprick 10. Rep. 61. a. The Opinion of Popham Chief Justice An Office is not Grantable in Reversion by the Bishop But the Court was clear of Opinion without Argument for the Plaintiff That the Grant is good Crooke he denied that such an Office is not grantable in Fee and instanced in the Ushers Office and Chamberlains of the Exchequer which are Judicial Offices and yet granted in Fee And it was denied that this is an Office of Judicature but Ministerial only To that which was objected That the Action doth not lie against an Infant It was answered That an Action upon the case doth lie against an Infant Executor an Action upon the Case will lie against an Infant for a Nusance or for words by the common Law And in our Case he shall forfeit his Office Anâ— Infant may be Executor in which greater confidence and trust is reposed and in our Case the Grant to an Infant is not void ab initio but voidable only upon contingent And 〈◊〉 conceive that if the usage will warrant it That he may grant all the Offices in Reversion and upon that difference depends the Opinion of Popham in the 10. Rep. for there it doth not appear that the Custom was to grant in Reversion And therefore it was not good Barckley The King may grant iâ— Reversion without any Custom 9 Eliz. Savages Case And there is no question but that Custom may make an Office grantable in Reversion in the case of a common person 1 H. 7. Crofts case Also the case of the Usher of the Exchequer granted in Fee And there is no question but a Judicial Office may be granted to one and his Heirs And the Office of Warden of the Fleet which is an Office of great trust is granted in Fee And as such Offices may descend to an Infant so a Feme covert may have such an Office for she may have a husband who may execute it and so an Infant may have a deputy 7 H. 6. There is a difference amongst Infants an Infant before the Statute of 10 Eliz. might have been Presented to a Benefice and he was Parson de facto So a meer Lay man but the same ought to be understood of an Infant who was of age of discretion A Prebâ—ndary was granted to Prideaux at the age of 3 years and was adjudged void because he was not of age of discretion but if he had been it had been good And I conceive that it is necessary and convenient that it should be granted in Reversion for by that means the Office would never be vacant and should be always provided of those who were sufficient to execute it So in our Case the Infant may be instructâ—d before he come of full age And farther as an Infant when he is Presented is to be allowed or disallowed by the Ordinary so the Deputy is by the Court The Statute of 1 El. makes against you for although it be not within it yet it may be good at the common Law like the concurrent Lease which is good at the common Law and not within the Statute of 1 Eliz. The rest of the Justices did all agree with Barckley And Justice Iones said that Scamblers Case cited by my Lord Coke in Institutes 3. b. was adjudged contrary That an Infant was capable of a Stewardship in Reversion and he said that it was adjudged in the Exchequer that an Ignorant man was capable of an Office in Reversion which doth not differ from our Case Sir John Saint-Johns Case 69. THe Lady Cromwell was possessed of divers Leases and conveyed them in trust and afterwards married with the said Sir Iohn Saint-Iohn and afterwards she received the mony which came of the trust and with part of it she bought Jewels and part she left in Mony and died And Sir Iohn Saint-Iohn took Letters of Administration of the goods of the Wife And the Ecclesiastical Court would make him accomptable for the Jewels and for the Mony and to put them into an Inventory And the Opinion of the Court was That he should not put them into the Inventory because the property is absolutely in the husband he hath them not as Administrator but things in action he shall have as Administrator and shall be accomptable for them and in that case a Prohibition was granted as to the Mony It was moved again this Term That the Lady Saint-Iohn did receive part of the Mony put it out and took Bonds for it in the names of others to her use and the Spiritual Court would have him accompt for that and thereupon a Prohibition was prayed but the Court would not grant it And there Barckley differed in Opinion and so did the Court some being for it and some against it The reason given wherefore the Prohibition should not be granted was because the Mony received upon the trust is in Law the Monies of the Trustees and the wife hath no remedy for it but in Court of Equity and therefore that the husband should have it as Administrator The reason urged wherefore the Prohibition should be granted was because here the trust was executed when the wife had received the Mony and by the Receipt the husband had gained property therein as husband and therefore should not be accomptable for it Farther here the Ecclesiastical Court should determine the trust of which they have no Jurisdiction for they have not a Court of Equity And the Court ruled That the Counsel should move in Chancery for a Prohibition for in Equity the mony did belong to the wife And here it was agreed That if the Trustees consent that the wife shall receive the mony as in our Case the contrary doth not appear that there the husband might gain a property as husband but because the Court conceived that the Ecclesiastical Court had not Jurisdiction a Prohibition was
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
three years it did not give Lapse without notice for it was avoidance in Law not in Fact vid. Stat. 9. Eliz. for Excommunicating a striker in the Churchyard c. This Statute of 31 Eliz. differs from the Statute of 1 Eliz. for not reading of the Articles Those Statutes say that it shall be void ipso facto but not so in our Case And the Cases cited for Authority in the point are betwixt party and party and not in case of a third person as our case is 18 Eliz. Dyer A meer Lay-man is presented it is not ipso facto void without Sentence So it is of one within the age of nine years for he cannot govern others Trinit 4 Iac. in the Common Pleas Cooke and Stranges case The King Presents and before Institution Presents another it is good but in the interim the King ought to repeal his first presentment and that is a revocation vid. Dyer 292. a. where it is a Quere Whether he need not to alledge that a Repeal was brought and shewed c. The King grants and afterwards makes a second Grant of the same thing There are many Examples in Brooke and Fitzherbert that it is not good without a Repeal But this Case viz. of 6 H. 8 9. extends only to â—and and not to an Advowson c. But it was resolved by all the Judges That the Church was void by the Statute of 31 Eliz. to all purposes and to all persons as to the Pâ—râ—shioners as to a stranger who brings Trespass or Ejectione firme as to the King as to him who Presents and that without deprivation or Sentence declaratory in the Ecclesiastical Court And accordingly Judgment was given Hichcocke against Hichcocke 140. THe Case was this The Vicar did contract with a Parishioner to pay so much for encrease of Tithes and died and his Successor fued in the Ecclesiastical court for them And a Prohibition was prayed and granted by all the Justices And here it was said That a real Contract made by the Parson and confirmed by the Ordinary could not be altered in the Spiritual Court And by Serjeant Mallet a real accord though it be between Spiritual Persons and of Spiritual things yet it is only questionable at the Common Law 20 E. 3. Annuity 32. 38 E. 3. 6. 8 19. And by Serjeant Clarke Real composition by a Parson who claims not any encrease of the endowment to the Parsonage shall not binde his Successor The words of the Contract here were inter se convenerunt and that is no real Composition although that the Bishop call it so realis Compositio and his calling of it so doth not alter the nature of it but it remains a Personal agreement and so shall not bind the Successor although it be confirmed by the Bishop A Parson cannot do any thing to the damage of his Successor The Vicar took Oath That they were not for encrease of Tithes the Ordinary being a stranger to the Composition is not made a party by his Confirmation nor is the Composition altered by it Littleton Sect. 335. The Lord confirms the Land to the Tenant the same doth not alter the Tenure nor prejudice the Lord. The power of the Bishop augendi minuendi the Portion of the Vicar is by the Common Law for general Cure of Souls The Parson and Vicar have privity betwixt them 40 E. 3. 28. 31 H. 6. 14 16 Ass Annuity 32. 2 Rep. 44. Plow Com. 496. 21. E. 3. 5. 10 H. 7. 18. Dyer 43 84. 141. A Prohibition was prayed to the Court of Requests and the Case was thus A Feme sole possessed of a Term conveyed the same over in Trust for her and Covenanted with I. S. whom she did intend to marry that he should not meddle with it and for that purpose took a Bond of him They intermarried he may intermeddle with it but he shall not have it and by Equity he cannot assigne it by reason of the Covenant before marriage A Feme sole conveys a Term in Trust and then marrieth the husband assignes it the Trust not the Estate shall pass by Reeve and Foster But by all the Judges a Prohibition shall not be for it is matter only for Equity But if they direct Demisit or non demisit Assignavit or non c. then they exceed their Jurisdiction and a Prohibition heth 142. A woman brought a Writ of Dower and recovered and upon a suggestion made upon the Roll that the husband died seised a Writ of enquiry of Damages issued forth And before the Retorn thereof a Writ of Error was brought and it was by Steward against Steward and two things were moved 1. Whether Error would lie before the Retorn of the Writ of Enquiry or not 2. Whether the Writ of Error be a Supersedeas to the Writ of Enquiry And by Taylor and Rolls Serjeants That Error doth not lie before Judgment upon the Writ of Enquiry And this case they compared to Medcalfes case 11 Rep. 38. But by Serjeant Bacon it is well brought Dower is by the Common Law and damages are given by the Statute of Merton and that is the main Judgment 5. Rep. 58 59. And the very case is put in Medcalfes case 11 Rep and distinguished from other cases And it was argued by another Serjeant That the Error was well brought because that in Dower the Judgment doth determine the Original and therefore at the Common Law Error will well lie And the damages are given by the Statute of Merton but that doth not alter the Judgment or the nature of the Action It differs from the case of Judgment in an Ejectione firme and Accompt for after such Judgments Noâ—suit may be but not so in the case of Dower in which Judgment is quod recuperet c. A Precipe is brought against two one pleads to issue the other an insufficient Plea upon which Judgment is given No Error lieth before Judgment be given for the other for the whole matter is not determined But in several Precipes against two it is otherwise 34. H. 6. 18. Fitz. Scire facias 11 Rep. 39. a. b. In case of Ejectione firme it is a Quere if Error may be brought c. And Bankes Chief Justice said That it had been adjudged both ways but that differs from our case for in that damages are given by the Common Law Judgment is in a Quare impedit Error may be brought before c. which is like to our case for damages in both cases are given by Statute And where it was objected That thereby damages should be lost He answered No. For the Kings Bench may award a Writ of Enquiry of Damages And the 11 Rep. is express Authority 2. The Error is no Supersedeas c. 11 Iac. in Tincke and Brownes case it was ruled and resolved That a Writ of Error brought was not a Supersedeas to the Writ of Enquiry of damages But it was resolved by all the Judges that the Error
it turns the Avowry into a Justification in our Case so as you shall not make us Trespassers but that we may well justifie to save our damages Crawley Justice that the Avowry is turned into a Justification and that there is sufficient substance in the Plea to answer the unjust taking the distress Justice Reeve that it is good by way of Avowry for the distress being lawfully taken at the time it shall not take away his avwry therefore he shall have Retorn for that was as a gage for the rent and therefore differs from the other Cases Justice Foster put this Case at the Common Law Distress was taken and before avowry Tenant for life died Whether he shall avow or justifie But all agreed that at the least the Avowry is turned into a Justification but it was adjourned 179. The Court demanded of the Protonotharies Whether a man might make a new assignment to a special Bar and they said no but to a common Bar only viz. that the Trespass if any were was in Bl. Acre there ought to be a new assignment by the Plaintiff but Reeve and Crawley Justices the other being absent held clearly that the Plaintiff might make a new assignment to a special Bar and further they said that the Plaintiff if he would might trise the Desendant upon his Plea but we will not suffer him to do so because that his Plea is meerly to make the Plaintiff to shew the place certain in his Replication in which the Trespass was done 180. The Disseisee levieth a Fine by Reeve and Crawley Justices it shall not give right to the Disseisor because that this Fine shall enure only by way of Estoppel and Estoppels bind only privies to them and not a stranger and therefore the Disseisor here shall not take benefit of it and therefore they did conceive the 2 Rep. 56. a. to be no Law Vid. 3 Rep. 90. a 6 Rep. 70. a. 181. Serjeant Callis prayed a Prohibition to the Court of Requests for cause of priority of Suit but by Foster and Crawley Justices the other being absent priority of Suit was nothing the Bill being exhibited there before Judgment given in this Court 182. The Case of White and Grubbe before being moved again it was said in this case by Reeve and Foster Justices that where a man is indebted unto another for divers wares and the debt is superannuated according to the Statute of 21 Iac. cap. 16. and afterwards they account together and the party found to be indebted unto the other party in so much mony for such wares in that Case although that the party were without remedy before yet now he may have debt upon accompt because that now he is not bound to shew the particulars but it is sufficient to say that the Defendant was indebted to the Plaintiff upon accompt pro diversis mercimoniis c. 183. A Prohibition was prayed unto the Council of the Marches of Wales and the Case was thus A man being posfessed of certain goods devised them by his will unto his wife for her life and after her decease to I. S. and died I. S. in the life of the wife did commence Suit in the Court of Equity there to secure his Interest in Remainder and thereupon this Prohibition was prayed And the Justices viz. Banks Chief Justice Crawley Foster Reeve being absent upon consideration of the point before them did grant a Prohibition and the reason was because the devise in the remainder of goods was void and therefore no remedy in equity for Aequitas sequitu◠legem And the Chief Justice took the difference as is in 37 H. 6. 30. Br. Devise 13. and Com. Welkden Elkingtons Case betwixt the devise of the use and occupation of goods and the devise of goods themselves For where the goods themselves are devised there can be no Remainder over otherwise where the use or occupation only is devised It is true that heir looms shall descend but that is by custome and continuance of them and also it is true that the devise of the use and occupation of Land is a devise of the land it self but not so in case of goods for one may have the occupation of the goods and another the Interest and so it is where a man pawns goods and the like For which cause the Court all agreed that a Prohibition should be awarded Trin. 17º Car. in the Kings Bench. 184. A Man was sued in London according to the custom there for calling a woman Whore upon which a Habeas corpus was brought in this Court and notwithstanding Oxfords case in the 4 Rep. 18. a. which is against it a Procedendo was granted and it was said by Serjeant Pheasant who was for the Procedendo and so agreed by Bramston Chief Justice and Justice Malle◠That of late times there have been many Procedendo's granted in the like case in this Court 185. An Orphan of London did exhibite a Bill in the Court of Requests against another for discovery of part of his estate And Serjeant Pheasant of Counsel with the Defendant came into this Court and Prayed a Prohibition upon the custom of London That Orphans ought to sue in the Court of Orphans in London but the whole Court which were then present viz. Chief Justice Bramston Heath and Mallet Justices were against it because that although the Orphan had the Priviledge to sue there yet if he conceive it more secure and better for him to sue in the Court of Requests then he may waive his priviledge of suing in the Court of Orphans and sue in the Court of Requests for quilibet potest renunciare juri pro se intraducto c. and Heath said that he always conceived the Law against the Case of Orphans 5 Rep. 73. b. But which is stronger in this Case the Court of Orphans did consent to the Suit in the Court of Requests and therefore there is no reason that the Defendant should compel the Infant to sue there wherefore they would not grant a Prohibition but gave day until Mich. Term to the Defendants Counsel to speak further to the matter if they could Trin. 17º Car. in the Common Pleas. Dewel against Mason 186. IN an Action upon the Case upon an Award the case was this The Award was that the Defendant should pay to the Plaintiff eight pound or three pound and Costs of suit in an Action of Trespass betwixt the Plaintiff and Defendant as appears by a note under the Plaintiffs Attorneys hand ad libitum defendentis c. And the Plaintiff doth not aver that a note was delivered by the Attorney of the Plaintiff to the Defendant and the Defendant pleaded Non assumpsit and it was found for the Plaintiff and it was moved in arrest of Judgment for the reason given before Rolls contrary that there needs no averment and he said it was Wilmots case adjudged in this Court Hill 15 Car. where the Case was that the Defendant should
pay to the Plaintiff such costs as shall be delivered by note of the Attorneys hand and it was here adjudged that there needs no averment because it was to be done by a stranger but otherwise it had been if it had been to be done by the Plaintiff himself and by the Justices the only question here is Whether the Attorney shall be taken for a stranger or not Justice Foster that the Defendant ought first to make his election which is to pay either the eight pound which is certain or the costs which shall be delivered by a note of the Attorney Besides here the Attorney is a stranger because the suit is ended and to the Defendant he is totally a stranger and therefore he ought to seek him to have the note delivered to him But notwithstanding he did conceive that as this Case is Judgment ought to be stayed because the Plaintiff hath not well entitled himself to the Action because he hath not averred that there were costs expended in such a suit and in the Case ciâ—ed by Rolls the Plaintiff did aver the costs incertain Justice Crawley it is without question the Defendant hath Election in this case but as this Case is he ought to have notice and if the Case had been such that the Plaintiff himself had been to have delivered the note then without question there ought to be notice and here the Attorney is no stranger but is a servant to the Plaintiff as every Attorney is And I conceive that if the Case had been that the Plaintiffs servant had been to deliver such a note that there notice ought to be given And for want thereof in this Case I conceive that the Judgment ought to be stayed Bankes Chief Justice I doubt upon the different Opinions of my Brethren whether Judgment ought to be stayed or not I agree that the Defendant hath Election in this Case and further I agree that where a thing is to be done by the Plaintiff or Dâ—fendant himself there notice ought to be given but otherwise in Case of a stranger and upon this difference stands our Books as 10 H. 7. and all our Books but the Question here is Whether the Attorney be a stranger or not and I conceive that it is not in the power of the Plaintiff to compel him to bring the note and is all one as a stranger and therefore the Defendant ought to seek the Attorney to deliver this unto him but the Case was adjourned because Justice Reeve was not present in Court 187. A. said to B. Thou hast killed my Brother for which B. ought an Action upon the Case and by Serjeant Whitfield it will not lie because it is not averred that the Brother of the Defendant was dead at the time and if he were not dead then it is no slander because the Plaintiff is not in danger for it 4 Rep. 16. a. Snaggs Case Aâ—â— Serjeant Evers contrary because the words imply that he is dead and besides in the Innuendo it is also shewed that he was â—ead for that is the innuendo C. c. fratrem nuper mortuum But by the whole Court the words are not actionable without averment that he was dead and the Innuendo doth not help it Hobarts Rep. p. 8. Miles and Iacobs Case acc 188. A Frenchman had his Ship taken by a Dunkirk upon the Sea and before that it was brought infra praesidia of the King of Spain it was driven by a contrary wind to Waymouth and there the Dunkirk sold the Ship and Goods to a Lord in Waymouth whereupon the Frenchman having notice of his ship and goods to be there libelled in the Admiralty pro interesse suo against the Lord the Vendee of the Ship shewing that it was taken by Piracie and not by Letters of Mart as was pretended and thereupon a Prohibition was prayed and by Foster a Prohibition ought to be granted for whether the Dunkirk took it by Letters of Mart or as a Pirate it is not material the sale being upon the Land and infra corpus comitatus and so he said it was adjudged in such a case for whether the sale were good or not Non constat Justice Crawley conceived it should be hard that the sale being void if it were taken as a Pirate or by Letters of Mart not being brought infra prâ—sidia of the King of Spain that by this means you should take away the Jurisdiction of the Admiralty but he said he did conceive it more fit for the Frenchman to have brought a Replevin which he said lieth of a Ship or Trover and Conversion and so have had the matter found specially Bankes Chief Justice conceived that there should be a Prohibition otherwise upon such pretence that it was not lawful prize and by consequence the sale void you would utterly take away the Jurisdiction of the Common Law But because there was some misdemeanor in the Vendee the Court would not award a Prohibition but awarded that the buyer should have convenient time given him by the Court of Admiralty to find out the seller to maintain his Title and in the mean time that he give good caution in the Admiralty that if it be found against him that then he restore the ship with damages But note the Court did agree Justice Reeve only absent that if a ship be taken by Piracie or if by Letters of Mart and be not brought infra praesidia of that King by whose subject it was taken that it is no lawful prize and the property not altered and therefore the sale void and that was said by the Prâ—ctoâ— of the Frenchman to be the Law of the Admiralty Rudston and Yates Case 189. RVdston brought an Action of debt upon an Obligation against Yates for not performance of an Award according to the Condition of the Bond the Defendant pleaded that the Arbitrators Non fecerunt arbitrium upon which they were at issue and found for the Plaintiff and it was now moved in arrest of Judgment by Trevor that the Defendant was an Infant and therefore that the submission was void and by consequence the Bond which did depend upon it and he conceived the submission void First because it is a Contract and an Infant cannot contract and he took a difference betwixt acts done which are ex provisione legis and acts done ex provisione of the Infant an Infant may bind himself for his diet schooling and necessary apparel for that is the provision of the Law for his maintenance but a Bond for other matters or Contracts of other nature which are of his own provision those he cannot do Secondly an Arbitrator is a Judge and if an Infant should be permitted to make an Arbitrator he should make a Judge who by the Law is not permitted to make an Attorny which were against reason Thirdly it is against the nature of a Contract which must be reciprocally binding here the Infant should not be bound and the man of full
erect his Tavern For it is a disorderly Profession and not fit for every place And it was adjudged in this Court That a Brewhouse ought not to be erected in Fleet-street because it is in the heart of the City and would be annoyance to it And if one would set up a Butchers shop or a Tallow-Chandlers shop in Cheap-side it ought not to be for the great annoyance that would ensue And therefore the Mayor and Communalty may redress it And therefore the party was remanded and was advised by the Court to submit to the Government of the City Note the Recorder certified the Custom That the Mayor might appoint a place 35. Upon a Recovery in a Court-Baron against one he offered here to wage his Law And Justice Barckley doubted whether wager of Law would lie in such Case To which Justice Iones said Yes and Barckly agreed hereunto because the Recovery was in a base Court and not in a Court of Record Vide 2 E. 4. 36. No antient Mill is Tithable but Mills newly erected shall pay Tithes by the Statute of 9 E. 2. 5. Meade against Axe in a Writ of Error to reverse a Iudgment 37. THe Case was Axe brought an Action against Meade for these words spoken of the Plaintiff a Dyer by the Dâ—fendant Thou art not worth a Groat And the Plaintiff added that these words amongst Citizens of such place where they were spoken have the common acceptation and doth tant amount as the calling of him Bankrupt The Errors which were assigned by Meade Plaintiff in the Writ of Error were 1. Because it is added that the words were spoken inter diversos ligeos and doth not say Citizens of the place where they have such acceptation 2. Because that the Judgment is Consideratum est and the words per Curiam left out And the Court was clear that for these two Errors the Judgment should be reversed But the Court was clear of Opinion That the words of themselves are not actionable and that the averment in this Case was idle and to no purpose because the words of themselves imply a plain and intelligent sense and meaning to every man And it was compared to the Cases Where there is no Latine for words there where words of no signification are put to express them there they ought to be explained by an Anglicè but where the words are significant there needs not any Anglicè Now if you will explain significant words under an Anglicè contrary to the meaning and true intendment of the word it self the Anglicè is void So in our Case of Averment The reason which was conceived wherefore the words of themselves are not Actionable Because that many men in their beginnings are not worth a Groat and yet their credit is good with the world But if he had laid specially That he was damnified and haâ— lost his Credit and that none would trust him upon this special matter the words would be Actionable Bonds Case 38. IN Trespass the Plaintiff declared That the Defendant entred in his Land and did cut down and carry away two Loads of Grass in the Plaintiffs Soil in a certain piece of Ground in which the Trespass was supposed to be done to strow the floor of the Church and that he cut two Loadâ— there to estrew the floor of the Church and did not say that it is the same Trespass c. And it was adjudged Error But the Court was clear that the Prescription for cutting of grass to estrew the Church was good because it was but in the nature of an Easement And so to have a washing-place in the land of another and so the custom here in London to shoot in the land of another and so for the Inhabitants of a town to have a way over the land of another to their Church But Mr. Rolls who moved the Case at the Bar said That it was adjudged that Inhabitants of a town by custom should have an Easement over the Freehold or in the Freehold of a Stranger but not profit Apprender But as I remember the Plaintiffs Freehold lay near the Church and for that reason the Court might conceive the same to be but an Easement Vide 2 H. 3. cited by Justice Iones Vid. Gatewoods Case 6 Rep. 60. b. Conysbies Case 39. UPon the Lease of an House the Lessee Covenanted that he would Repair the House with convenient necessary and tenantable Reparations The Lessor brought Covenant and alleaged a breach of the Covenants in not repairing for want of Tiles and dawbing with Morter and did not shew that it was not Tenantable And the Opinion of the Court was that he ought to have shewed it for the house may want small Reparations as a Tile or two and a little Morter and yet have convenient necessary and tenantable Reparations 40. A Writ of Error was brought and the Error assigned was want of Pledges And the Judgment was reversed although it was after Verdict And so was it adjudged in Dr. Hussies case and Young and Youngs case in this Court and the Reason was given because that otherwise the King should lose his Amercement 41. Fish in the River are not Titheable if not by Custome 42. Two referred themselves to Arbitrement and the Arbitrators arbitrate that one of them should pay a certain sum to the other and the other in consideration thereof should acquit him of a Bond wherein they both were bounden to a third person in a 100 lib. eo circiter and it was objected That the Arbitrators had arbitrated a thing incertain by reason of these words eo circiter But the Opinion of the Court was That there was sufficient certainty because that in this Case it doth not lie in their power to know the direct sum and because a small variation is not material but if they as in Salmons case 5 Rep. will arbitrate that one shall be bound in a Bond to another and not express in what sum the same is utterly void for the incertainty Difference was taken where the Arbitrators arbitrate one party to do a thing which lieth in his power and where not without the help of a third person there the Arbitrament is void and in the principal Case the difference was taken by the Court where the Bond is forfeit and the penalty is incurred and where not or the day of payment is not incurred there payment at the day is a good discharge and acquittance but where it is incurred it is not But Justice Iones said That he might compel the Obligee upon payment although the Bond was forfeit to deliver the Bond by Subpoena in Chancery or that he suffer an Action to be brought against him and then to discharge it and pay it Goodman against VVest Debt upon the Statute of 5 Eliz. Cap. 9. 43. THere was an action brought against the Plaintiff in the Common Pleas who procured Process to issue against the Defendant for his Testimony in his Cause and a Note of
therefore iâ— the King be deceived either in point of profit or in point of Title his Grant is void 9 H. 6. Where he is not deceived in point of profit he shall not avoid the Grant 26 H. 8. The second reason That a Deed ought to be construed Vt res magis valeat quam pereat 34 H. 6. A man having a Reversion deviseth his land in Manibus thereby the Reversion passeth 9 E 4. 42. Release of all Actions against Prior and Covent shall be construed and intended all Actions against the Prior only for an Action cannot be brought against the Covent Farther by this construction you would avoid this deed and by the Rule of Law the deed and words of every man shall be taken very strong against himself ut res magis valeat as is said before And it is against reason to conceive that it was the meaning of the parties that nothing should pass A third reason was because the grant was a distinct clause of it self And the words which were objected at the Bar to be restrictive were in another distinct clause and therefore shall not restrain that which was before for words restrictive ought to be continued in one and the same sentence Wherefore they having granted all their Tithes in Chesterton by one clause the false recital afterwards in another clause shall not make the grant void See 3 4 Eliz. Dyer in Wast 31 Eliz. the Lord Wenworths Case in the Exchequer upon this Rule of distinct clauses And Atkins and Longs case in the Common Pleas upon which cases Justice Iones did rely The fourth reason was That construction ought to be made upon the whole Deed And it appeareth by the context of the Deed That it was the meaning of the parties to grant the Tithes by the Deed. Further the Exception of the four things sheweth That it was the meaning of the parties to grant all things not excepted as the Tithes in this Case For exceptio firmat Regulam And to what purpose should the Exception be if they did not intend to pass all other things not excepted See 4 Car. Hâ—skins and Trâ—ncars Case Sir Robert Napwiths Case 21 Iac. cited by the chief Jâ—â—tice to that purpose Wherefore it was agreed by the whole Court that Judgment should be given for the Defendant And the Opinion of the Court was clear also That although some of the Tithes had been in the Tenure of Margaret Petâ—e that yet the grant was good And that was after Argument upon the Demurrer to avoid all scruples to be after made by Counsel because it was conceived That some of the Tithes were in her Tenure Crisp against Prat in Ejectione firme 67. THe Case upon the four Statutes of Bankrupts viz. 34 H. 8. 13 Eliz. 1 Iac. and 21 Iac. was thus Ralph Brisco 9 Iac. purchased Copyhold to him and his Son for their lives the Remainder to the Wife in Fee 11 Iac. he became an Inholder and about twelve years after a Commission of Bankrupt is obtained against him And thereupon the Copyhold-land is sold by the Commissioners to the Defendant Ralph Brisco dieth and his Son Iohn Brisco entred and made the Lease to the Plaintiff The Defendant entred upon him and he brought an Ejectione firme And Judgment was given upon solemn argument by the Justices for the Plaintiff The first point was Whether an Inholder be a Bankrupt within these Statutes And it was resolved by all the Justices viz. Iones Crook Barckley and Bramstone chief Justice that an Inholder quatenus an Inholder is not within these Statutes Justice Barckley and Justice Iones one grounded upon the special Verdict the other upon the Statutes did conceive That an Inholder in some cases might be within these Statutes Justice Barckley did conceive upon this special Verdict that this Inholder was within them because it is â—ound That he got his living by buying and selling and using the Trade of an Inholder And he conceived upon these words Buying and selling in the verdict and getting his living thereby although that the Jury have also found him an Inholder that the same is within the Law And he agreed That he who liveth by buying or selling and not by both is not within the Law but in our case the Jury have found both And it hath been adjudged That he who buys and sells cattle and stocks his ground with them that he may be a Bankrupt within those Statutes I agree that a Scrivener was not within 13 Eliz. for he doth not live by buying and selling but by making use of the monies of other men but now he is within 21 Iac. But in our case the Inholder buys his grass hay and grains and provision also for his Guests and by selling of them he lives But he agreed That if the Jury had found that he was an Inholder only and not that he did get his living by buying and selling that in that case he was out of the Law And for these reasons he did conceive That this Inholder as by the special Verdict is found was within the Statutes of 13 Eliz. and 21 Iacobi Justice Iones An Inholder may be or not be within these Laws upon this difference That Inholder who gets his living meerly by buying and selling as many of the Inholders here in London do they are within these Statutes But those who have Lands of their own and have hay and grain and all their provisions of their own as many have in the Country those are not within the Statutes Farther he said That buying and selling doth not make men within these Statutes for then all men should be within the Statutes but they ought to be meant of them who gain the greatest part of their living thereby and live chiefly or absolutely thereby But Bramston chief Justice and Justice Crook were clear of Opinion that an Inholder could not be a Bankrupt neither by the Statutes nor according as it is found by the special Verdict And their reason was because that an Inholder doth not live by buying and selling for he doth not sell any thing but utter it He which sells any thing doth it by way of contract but an Inholder doth not contract with his Guests but provides for them and cannot take unreasonable rates as he who sells may and if he doth he may be Indicted of Extortion which the seller cannot Wherefore they concluded that an Inholder is not within the Statute of 13 Eliz. 1 Iac. Justice Crook remembred these Cases Webb an Inholder of Vxbridge brewed in his house and sold his Beer to his Guests And it was adjudged in the Exchequer that it was not within the Statute of Brewers And Bedells Case who being a Farmer bought and sold cattle and adjudged that he was not a Bankrupt within these Statutes And he put thâ—se cases upon this reason That where the Statutes said Get their living by buying and selling that it ought to bâ—â—or the greater part that they gain
Branches should be priviledged And a man shall not pay Tithes of Quarries of Stonâ— And Barckley said It had been adjudged That a man shalâ— not pay Tithes for Brick and Clay 90 A. said to B. Hast thou been at London to change 〈◊〉 Mony thou stolest from me And it was Objected That thesâ— words are not actionable because they are an Interrogatorâ— only and no direct affirmativâ— But by Barckley and Ioneâ— the other Justices being absent the words are actionablâ— For the first words Hast thou been at London are the wordâ— of Interrogation and the subsequent words viz. The 〈◊〉 thou stolest from me is a positive affirmation And Barckley said That it had been oftentimes adjudged That words 〈◊〉 Interrogation should be be taken for direct affirmation Ioneâ— also agreed to it and he said that this Case had been adjudged That where a man said to I. S. I dreamed this night that you stole an Horse That the words are actionable And if these and the like words should not be actionable a man might be abusive and by such subtile words always avoid an Action 91. A. said of B. that he took away money from him with a strong hand and alledged that he spoke those words of him innuendo feloâ—icè and for them the Plaintiff brought an Action upon the Case And by Barckley and Iones none other being present the Action doth not lie â—or he may take money from him manu forti and yet be but a Trespasser and therefore the Innuendo is void for that will not make the words actionable which are not actionable of themselves 92 Justice Iones said that it was a question Whether a Bar in one Ejectione firme were a Bar in another And Justice Barckley said that it is adjudged upon this difference That a Bar in one Ejectione firme is a Bar in another for the same Ejectment but not for another and new Ejectment to which Iones agreed Dickes against Fenne 93. IN an Action upon the Case for words the words were these the Defendant having communication with some of the Customers of the Plaintiff who was a Brewer said That he would give a peck of Malt to his Mare and she should piss as good Beer as Dickes doth Brew And that he laid ad grave damnum c. Porter for the Defendant that the words are not actionable oâ— themselves and because the Plaintiff hath alledged no special Damage as loss of his Custome c. the Action will not 〈◊〉 Rolls that the words are actionable and he said that it had been adjudged here That iâ—â—ne say of a Brewer That he brews naughty Beer wiâ—hout more saying these words are actionable without any special damage alledged But the whole Court was against him Crooke only absent That the words of themselves were not actionable without alledging special damage as the loss of his Custome c. which is not here And therefore not actionable And Barckley said That the words are only comparative and altogether impossible also And he said that it had been adjudged that where one says of a Lawyer That he had as much Law as a Monkey that the words were not actionable because he hath as much Law and more also But if he had said That he hath no more Law than a Monkey those words were actionable And it was adjorned Hodges and Simpsons Case 94. A Man brought an Action of Trover and Conversion against husband and wife of two Garbes Anglicè Sheaves of Corn and said that they did convert those sheaves ad usum ipsorum viz. of the Husband and Wife And here were two things moved by Hyde First that he shewed the Conversion to be of two Garbes Anglicè Sheaves of Corn which plea is naught and incertain And Courts ought to have certainty but here it is not shewed what Corn it was And the Anglicè is void and therefore no more than Trover and Conversion of so many Sheaves which is altogether incertain and therefore not good The other thing is That the Plaintiff sayth that the conversion was ad usum ipsorum which cannot be for the wife hath no property during the life of the husband and therefore cannot be ad usum ipsorum And he cited two Judgments in the point where it was adjudged accordingly And Justice Barckley said that it had been many times so adjudged But Justice Iones said that there may be a Conversion by the wife to her use as in this case to bake the Barley into bread and to eat it her self And Bramston Chief Justice said that a wife hath a capacity to take to her own use for there ought of necessity to be property in the wife before the husband can have by gift in Law and they desired to see Presidents And therefore it was adjourned as to this point But by the whole Court the other was not good More of the Case of North and Musgrave 95. MAynard for the Plaintiff in the Writ of Error That the Judgment was erroneous First because the damages and costs were given where none ought to be given being a penal Law and therefore no more than the penalty shall be recovered And he remembred the rule taken in Pilfords case 10 Rep. 116. a. and he cited divers Presidents also for it Cokes Book of Entries 31 41. And Presidents upon the Statute of Perjury 38 39. Secondly because he divided the Penalty given by the Statute which ought not to be for by such means the offender should be doubly vext for he might sue him after for the six pence praeter ultra that which was taken for the distress And he said it is like to the case of an Annuity which is entire and cannot be divided Thirdly he said That the Judgment it self was erroneous because that Judgment is given for more than he demands For the Judgment is quod recuperet 5. li. ultra praeter that which is above the 4 d. given by the Statute Rolls contrary that the Damages and Costs are well given and the same is out of the rule of Pilfords case because that the Action is no new action but the thing is a new thing for which the old Action is given And the Damages and Costs are here given for the Suit and Delay and not for the Offence And he cited also Presidents for him viz. The new Book of Entries 163 164. For the second point he said That they are several penalties which are given and therefore he might bring his Action severally for them if he would As to the third point That Judgment is given for more than the party declares it is not so for then the Judgment shall be made vitious by Implication which ought not to be And as to dividing of the penalty and Judgment the same was good by the whole Court for the reasons before given As to the giving of Costs Iones and Bramston Chief Justice conceived that they were well assessed upon the presidents before cited But Barckley
age should be which should be a great mischief And where it is objected it may be for his benefit To that he answered that the Law will not leave that to him to judge what shall be for his benefit what not and to this purpose amongst other he cited it to be adjudged That where an Infant took a shop for his trading rendring renâ— and in debt brought for the rent the Infant pleaded his Infancie the other replied that it was for his benefit and livâ—lihood and yet it was adjudged for the Infant vid. 13 H. 4. 12. 10 H. 6. 14. Books in the point and therefore he prayed that Judgment might be stayed Bramston Heath and Mallet Justices Barckley being then impeached for High Treason by the Parliament were clear of Opinion That the submission by an Infant was void and they all agreed That if the Infant was not bound that the man of full age should not be bound so that it should be either totally good or totally void But Ward who was of Counsel with the Plaintiff said that the case was not that the infant submitted himself to the award but that a man of full age bound himself that the Infant should perform the Award which was said by the Court quite to alter the Case To that Trevor said that the case is all one for there cannot be an Award if there be not first submission and then the submission being void the Award will be void and so by consequence the Bond and to prove it he cited 10 Rep. 171. b. where it was adjudged that the non-performance of a void Award did not forfeit the Bonâ— and many other Cases to that purpose And the Court agreed That if the Condition of a Bond recite that where an Infaâ—â— hath submitted himself to an Award that the Defendant doth bind himself that the Infant shall perform it that the samâ— makes the Bond void because the submission being void allâ— void and therefore day was given to view the Record 190. A. and B. are indicted for murder B. flies and A. brings a Certiorare to remove the Indictment into the Kingâ— Bench Whether the whole Record be removed or but partâ— Keeling the younger said that all is removed and that theâ— cannot be a Transcript in this Case because he said the Writ saith Recordum processus cum omnibus ea tangentibus but the Chief Justice doubted of it and he said that the Opinion of Markham in one of our Books is against it and he said it should be a mischievous case if it should be so for so the other might be attainted here by Outlawry who knew not of it and note that Bramston Chief Justice said That the Clerk of the Assises might bring in the Indictment propriis manibus if he would without a Certiorare 190. A man was outlawed for Murder and died his Administrator brought a Writ of Error to reverse the Outlawry and it was prayed that he might appear by Atturney and by Bramston Chief Justice and Justice Mallet none other being then in Court it was granted that he might for they said that the reason wherefore the party himself was bound to appear in proper person is that he may stand rectus in Curia and that he may answer to the matter in fact which reason fails in this case and therefore the Administrator may Appear by Attorney 191. One said of Mr. Hawes these words viz. My Cozen Hawes hath spoken against the Book of Common Prayer and said it is not fit to be read in the Church upon which Hawes brought an Action upon the case and shewed how that he was cited into the Ecclesiastical Court by the Defendant and had paid several sums c. The Defendant denied the speaking of these words upon which they were at issue and it was found for the Plaintiff and now it was moved by Keeling for stay of Judgment That the words are not Actionable as to say A man hath spoken against a penal Law which doth not inflict punishment of life and member will not bear Action and the punishment which is inflicted by the Statute of 1 Eliz. cap. 2. is pecuniary only and not corporal but in default of payment of the sum that he shall be imprisoned for such a time which meerly depends upon the non-payment and is incertain And by the same reason he said to say of a man that he hath not Bowe and Arrows in his house or not a Gun or to say of a man That he hath spoken against any penal Law whatsoever would bear Action which should be unreasonable wherefore he prayed that Judgment might be stayed Brown contrary the words are actionable because that if it was true that he spoke them he subjected himself to imprisonment by the Statute of 1 Eliz. although not directly yet in default of payment so as there might be corporal damage and to prove it he cited Anne Davies Case 4 Rep. 17. a. where it is said that to say that a woman hath a Bastard will bear Action because that if it were true she was punishable by the Statute of 18 Eliz. Further he said that if the words are not Actionable yet the Action will lie for the special damage which the Plaintiff hath suffered in the Ecclesiastical Court Justice Mallet the words of themselves are not Actionable because that the corporal punishment given by the Statute doth depend upon the non-payment and is not absolute of it self but the Action will lie for the temporal damage and therefore he conceived that the Plaintiff ought to have Judgment Justice Heath that the Plaintiff ought to have Judgment for the pecuniary Mulct is a good cause of Action there being in default of payment a corporal punishment given But here is not only injuria but damnum also which are the foundations of the Action upon the Case and if the words of themselves be not Actionable yet the Action will lie for the damage that the Plaintiff here suffered by the citation in the spiritual Court Bramston Chief Justice doubted it and he conceived it hard that the words should bear Action because as he said the corporal punishment doth meerly depend upon the not payment and upon the same reason words upon every penal Law should bear Action and therefore this being a leading Case he took time to consider of it It was said To say of a man that he had received a Romish Priest was adjudged Actionable and that was agreed because it is Felony At another day the Case was moved again and Justice Mallet was of the same Opinion as before viz. That the words themselves were not actionable but for the special damage that the Action would lie and he said that one said of another That he was a Recusant for which an Action was brought in the Common Pleas and he conceived the Action would not lie Justice Heath was of the same Opinion as before that the words oâ— themselves would bear Actioâ— and
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
debt there can be no consideration and therefore the promise void because it is but nudum pactum Rolls contrary that there is a good consideration because that although by the release to one obligor the debt of the other be discharged sub modo viz. if the other can get it in his power to plead yet it is no absolute discharge for if he cannot get it into his hand to plead it he shall never take advantage of it and then if it be no absolute discharge but only sub modo viz. if he can procure it into his hand to plead then the consideration is good for perhaps he shall never get it Justice Foster asked him if by this release the debt be not intirely discharged to which he answered No as to B. only but sub modo as I have said before but he said and with him agreed the whole Court that the Law is clearly otherwise that the debt is intirely gone and discharged and then clearly there can be no consideration in this Case Justice Reeve every promise ought to have a consideration and that ought to be either benefit to him that makes it or disadvantage to him to whom it is made and in this Case the consideration which is the ground of the Assumpsit is neither benefit to him that made it nor disadvantage to hiâ— to whom it was made because there was no debt for it was totally discharged by the release made to A. Crawley agreed to it Bankes Chief Justice was absent But because the obligation was laid to be made in London and no Ward or Parish certain put from whence the Visne should come they conceived clearly that it was not good Pasch. 18º Car. in the Kings Bench. Heamans Habeas Corpus 144. RIchard Heaman was imprisoned by the Court of Admiralty upon which he prayed a Habeas corpus and it was granted upon which was this retorn viz. First the custom of the Admiralty is set forth which is to attach goods in causa civili maritimi in the hands of a third person and that upon four defaults made the goods so attached should be delivered to the Plaintiff upon caution put to restore them if the debt or other cause of Action be disproved within the year and after four defaults made if the party in whose hands the goods were attached refused to deliver them that the custom is to imprison him until c. Then is set forth how that one Kent was indebted unto I. S. in such a sum upon agreement made Super altum mare and that Kent died and that afterwards I. S. attached certain goods of Kents in the hands of the said Heaman for the said debt and that after upon summons four defaults were made and that I. S. did tender caution for the re-delivery of the goods so attached and condemned if the debt were disproved within the year and that notwithstanding the said Heaman would not deliver the goods for which he was imprisoned by the Court of Admiralty until c. Widdrington of Counsel with the prisoner took this exception to the Retorn that it appeareth by the Retorn that Kent who was the debtor was dead before the attachment and you shall never attach the goods of any man as his goods after his death because they are not his goods but the goods of the executor in the right of the testator Besides although the attachment be upon the goods yet the Action ought to be against the person which cannot be he being dead wherefore he prayed that the prisoner might be discharged Hales that the attachment is well made notwithstanding that the party was dead at the time of attachment for it is the custom of their Court so to proceed although that the party be dead Besides he said that although that the party were dead yet the goods are bona defuncti and to prove that he cited 10 E. 4. 1. the opinion of Danby and Catesby That the grant of Omnia bona catalla sua by an executor will not pass the goods which he hath as executor because they are the goods of the dead But note that it was here said by Bramston Chief Justice that it had been adjudged divers times against the opinion aforesaid that it passeth the goods which the executor hath as executor and he said that if a man hath a judgment against an executor to recover goods the Judgment shall be that he recover bona defuncti To that the Court said that the Judgment is not quod recuperet bona defuncti but quod recuperet the goods which fuerunt bona defuncti For the objection that the plaint ought to be against the person which cannot be when he is dead to that Hales said that in the Admiralty the Action is against the goods and therefore the death of the person is not material to that Justice Heath said that it is the party who is charged the goods are only chargeable in respect of the person and you shall never charge the goods alone but there ought to be a party to answer Hales if they have Jurisdiction they may proceed according to their Law and we cannot hinder it to which Heath said take heed of that when it concerneth the liberty of the Subject as in this Case And note that Bramston Chief Justice asked the Proctor of the Admiralty then present this Question Whether by their Law the death of the party did not abate the action and he said that it did then said the Chief Justice it is clear that an attachment cannot be against the goods the party being dead wherefore by the whole Court the custom to attach goods after the death of the party is no good custom and therefore they gâ—ve Judgment that the prisoner should be discharged 245. Note that Bramston Chief Justice and Heath Justice said in evidence to a Jury that a Will without a Seal is good to pass the Land and that it is a Forgery expresly by the Statute of 5 Eliz. cap. 14. to forge a Will in writing Pasch. 18º Car ' in the Kings Bench. Fulham against Fulham in a Replevin 246. THe Case was thus Henry the 8 seised of a Mannor in which are Copyholds grants a Copy-hold for life generally and whether this be a destroying of the Copyhold or not was the Question And it was argued by Harris that the grant was utterly void because the King was deceived in his grant for he said the King had election to grant it by Copy and therefore it shall not be destroyed by a general grant without notice and cited many Cases to prove that where the King is deceived in the Law his Grant shall be void but Bramston Chief Justice and the Court said that it never recited in any of the Grants of the King what is Copyhold and they were clear of Opinion that the Grant was not void But whether it destroy the Copyhold or not so as the King hath not election to grant the
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
the Case was That he did reject and eject his Wise without giving of her Alimony for which she had Sentence in the High Commission-Court and the Defendant took those Goods for the Alimony of the Wife And Justice Barckley said That the Defendant might plead Not guilty Lister against Hone in Trover and Conversion for a Hawk 32. JUdgment was given for the Plaintiff but it was moved in arrest of Judgment because it was not said in the Declaration that it was a tame Hawk Dyer 13 Eliz. 306. b. and 43 E. 3. Acc. And here it was said That the words of the Declaration shew that it was a wild Hawk for the words are For taking Accipitricem suum Anglicè vocat ' a Ramish Fawlcon and it was said that Ramish is as much as to say inter ramos agens but that was denied for a Ramish Hawk is a Fowl Hawk by which the contrary is implied that it was tame And here it was farther said for the Defendant that if reclamato be omitted de bonis suis propriis will not help it But it was said in affirmation of the Judgment that although reclamato be omitted yet that de bonis suis propriis will help it and Justice Barckley with all the Justices except the Chief Justice who was absent did agree very strongly That the Judgment should be stayed because that a Hawk is ferae naturae and although it be tamed yet if it fly away and hath not animam revertendi then occupanti conceditur Vide 27 Hen. 8. And for the words de bonis suis propriis they do nothing for the Party had but a Right of Possession and not of Property and if it be it is but a qualified Property as 7 Rep. 17. b. He agreed that if a man hath a wild Hawk in his possession and another man takes it out of his possession Trespass will lie but if it fly away then Capiat qui capere potest And thereupon Judgment was stayed Parkinson against Colliford and others Executors of a Sheriff 33. THe Case was That Judgment was given against another man at the Plaintiffs suit in Debt in the Common Pleas and upon that a Writ of Error was brought in the Kings Bench and the Judgment affirmed and upon that a Fieri facias directed to the Sheriff who levied the Mony and died the Writ being not returned and thereupon Debt was brought against his Executors and these exceptions were taken 1. That the Writ of Fieri facias was not returned and therefore the Sheriff should not be charged in Debt but otherwise if it had been returned 2. That no Debt lieth against the Sheriff although it had been returned 3. Admit that it would lie against himself yet it will not lie against his Executors because it is a Personal wrong and dieth cum Persona 4. That the Fieri facias was awarded out of this Court and it doth not appear whether it were awarded after the Record removed into this Court or not Justice Barckley with whom all the other Judges did agree was of Opinion That Debt would lie against the Sheriff where he sells goods upon a Fieri facias for now he is Debtor in Law and the Defendant discharged against the Plaintiff and â—â—e may plead it and therefore it is reasonable that the Defendant should be answerable to the Plaintiff and he took the difference betwixt Seisin of goods only and where the Sheriff seiseth and selleth them for till Sale no Debt will lie against him And it was said that Accompt will lie against him and if Accompt by the same reason Debt As to the return of the Writ he said that the Sheriff is not compellable to make it and therefore it 's nothing to the purpose and the difference stands where the Sheriff returns a Jury where not in case of Elegit the Writ ought to be returned but not in case of Fieri facias as is 1 H. 7. Clerk of the Hampers Case Farther I conceive that it will lie against the Executor and it is not like the Cases which are Personal where the action moritur cum Persona but here the goods came to the Executors and therefore it is reason to charge them And it is not like the Case in Dier 10 Eliz. 271. a. where it is said An Action of Debt will not lie against the Executor of a Keeper nor an Escape for there the body comes not to the Executor And this very difference may be collected out of Dier in the place aforesaid and the difference will stand where there is a personal wrong done to him and where not And for the Exception That it doth not appear whether the Fieri facias was brought after the Record removed or not To that they said una voce that it appeareth that it was upon these words of Record viz. That the Record was brought hither and here remained and it is not needful to shew that Errour was brought c. Justice Iones I conceive that Debt will lie against the Sheriff because the Sheriff had it delivered to him to deliver over And if I deliver mony to deliver over Debt will lie for him to whom it ought to be delivered So in this Case And because also the Defendant is discharged and may plead the same and therefore there is reason to charge the Sheriff Farther I conceive also that it will lie against the Executors And I shall take this difference where the wrong is ex maleficio for there it dieth with the person and where ex contractu for there it doth not die with the person If I deliver goods to a man and he diâ—th an Action of Trover will lie against his Executors And here the Sheriff could not have waged his Law for the Debt is brought upon matter of Record upon which wager of Law lieth not but upon simple contract And the Sheriff hath here made himself Debtor in Law upon Record Justice Crook It is reason to charge the Sheriff because the Defendant is discharged and may plead that his goods were taken in Execution by the Sheriff in satisfaction of the same Debt And the Executors may be charged because no wager of Law lieth because the Debt is here brought upon matter of Record And he agreed with Justice Iones in the difference betwixt maleficium and contractum And therefore they did all conceive that the Action would lie And in Spekes Case in the Common Pleas it was voted that the Action would lie against the Sheriff 34. In a Habeas Corpus the Case was thus A man would erect a Tavern in Birchin-lane and the Mayor and Communalty for his disobedience because he would not obey them but would erect a Tavern there against their wills they knowing the same to be an unfit place did imprison him And the Opinion of the Court was That he should be remanded because that the Mayor and Communalty had authority over him and they might appoint him a place in which he might
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
made a Feoffment to the use of himself for life the remainder in tail to I. S. He in the remainder Levied a Fine And the Counsel of the Marches upon a surmise That the Tenant for life died seised according to their Instructions would settle the possession upon the heir of Tenant for life against the Conusee For their Instructions were made That where a man had the possession by the space of three years that the same should be settled upon him until trial at Law were had But the whole Court was against it because it doth appear that he had but an estate for life and so the possession appertained to him in the remainder And here it was said by Justice Barckley that their Opinion hath been That the possession of Tenant for life should be the possession of him in the Remainder as to this purpose Note that the Principal case here was although the Case before put was also agreed for Law thus Tenant in Tail levied a Fine to the use of himself for Life the remainder in Fee to I. S. and died In that Case the Council in the Marches would settle the possession upon the heir of Tenant in tail against the Purchaser who held in by the Fine which had bar'd the estate tail by which the Issue claimed and the whole Court was against it for which cause a Prohibition was granted 80. Habeas corpora was directed to the Porter of Ludlore to bring the bodies of Iohn Shielde and William Shielde into the Kings Bench the case shortly as appears upon the retorn was this Powell the Father brought a Bill in the nature of an Information against the said Iohn and William Shield before the Council of the Marches in Wales for an unlawful Practice Combination and Procurement of a clandestine Marriage in the night betwixt Mary Shield a Maid-servant and the Son of Powell who was a Gentleman of good credit and worth the Parson also being Drunk as he himself sware and the same also being without Banes or Licence for which offence they were severally Fined to the King and an hundred Marks damages given to the Plaintiff and farther ordered by the Council that they should be imprisoned till they paid their several fines to the King and damages to the Party and found Sureties to be bound in Recognisance for their good behaviour for one year and till they knew the farther Order of the Council and these were the causes which were retorned And upon this retorn Glynn who was of Counsel with the Prisoners moved many things and many of them as was conceived by the Court altogether impertinent But the Objections which were pertinent were these First That the Councel of the Marches as this case is have no Jurisdiction because the clandestine Marriage is a thing meerly Spiritual and therefore not within their instructions The second was That they have exceeded their Instructions in that they have given damages to the party above fifty pounds For by their Instructions they ought not to hold Plea where the Principal or Damages exceed fifty pounds But as to the first he said there may be this Objection That they did not punish them for the clandeâ—â—inâ— Marriagâ— which in truth is a thing meerly Spiritual but for the unlawful Practise and Combination and for the execution of it To which he answered That they have not Juristiction of the Principal and therefore not of the Accessory here note that it was afterwards said by Bramston Chief Justice That the unlawful Practise and Combination was the Principal and the clandestine Marriage but the Accessory which was not contradicted by any Farther it was objected by Glynn That they were Imprisoned for the damages of the Plaintiff and it doth not appear whether it was at the Prayer of the Party as he ought by the Law Bankes the Kings Atturny-General contrary And as to the first Their Instructions give them power to hold Plea of unlawful Practises and Assemblies And this is an unlawful Practise and Assembly and therefore within their Instructions And although that Heresie and clandestine Marriage and such offences per se are not within their Instructions yet being clad with such unlawful circumstances and practises they are punishable by them As to the second he said The Instruction which restraineth them that they do not hold Plea above fifty pounds is only in civil Actions at the several suit of the party But there is another Instruction which gives them power where the cause is criminal to assess damages according to the quality of the Offence and at their discretions As to the third Objection he said That the Retorn being that they were in execution for the damages it ought to be meant at the Prayer of the Party otherwise it could not be For which causes he prayed thâ—â— the Prisoners might be remanded And the whole Court Crooke being absent were clear upon this Retorn That they should be remanded because it appeareth that their Fines to the King were not payed And therefore although that the other matters had been adjudged for them yet they ought to be remanded for that one And as to the Objections which were made the Court agreed with Mr. Attorney except in the point of Damages and for the same reasons given by him But as to the point of the Damages whether they have gone beyond their Instructions and so exceeded their power in giving above fifty pounds damages or not It seemed to the Court they had and as it seemed to them if the Retorn had been That the Kings Fines were paid it would have been hard to maintain that the assessing above fifty pounds damages was not out of their Instructions but because the Kings Fines were not paid they were Remanded without respect had thereunto for the reasons given before 81. It was said by the Court That when Judgment is given in this Court against another and Execution upon it and the Sheriff levieth the mony the Lord Keeper cannot order that the mony shall stay in the Sheriffs hands or order that the Plaintiff shall not call for it for notwithstanding such Order he may call for it And it was farther said by the Court That an Attachment shall not be granted against the High Sheriff for the contempt of his Bayliffs And a Writ of Error is a Supersedeas to an Execution but then there ought to be notice given to the Sheriff otherwise if he notwithstanding serve the Execution he shall not run in contempt for which an Attachment shall be granted 82. Serjeant Callis came into Court and moved this case Chapman against Chapman in Trespass done in Lands within the Dutchy of Cornwal which were Borough-English where the custome was that if there were an estate in Fee in those Lands that they should go to the younger Son according tthe custome but if in Tail the should descend to the Heir at Common Law And it was moved by him that the custom was not good because it cannot
be at one time customary and go according to the custom and at another guildable And the whole Court Crooke only being absent were against him that the custom was good Hicks against Webbe 83. IN Trespass for a way the Defendant did justifie and said that he had a way not only ire equitare averia sua fugare but also carrucis carreragiis carriare The Plaintiff traversed it absque hoc that he had a way not only ire equitare c. in the words aforesaid and thereupon they were at issue and found for the Plaintiff Glynn moved in arrest of Judgment that the Issue was ill joyned because it was not a direct affirmative but by inducement only And the whole Court was against him And Justice Iones said That if I say that not only Mr. Glynn hath been at such a place but also Mr. Iones without doubt it is a good affirmative that both have been there But they all agreed that the pleading was more elegant than formal 84. In the Case betwixt Brooke and Boothe Justice Barckley said that it is a Rule That if there be two things alledged and one of necessity ought to be alledged and he relies on-only upon the other it is no double Plea As if a man plead a Feoffment with Warranty and relieth upon the Warranty it is not double 85. Justice Barckley said That the Court of the Exchequer they may make a Lease for three Lives by the Exchequer-Seal Clarke against Spurden 86. IN a Writ of Error to reverse a Judgment given in the Court of Common Pleas the case was shortly thus A. wife of I.S. intestate promiseth to B. to whom Adnistration was committed that if he shall relinquish the Administration at the request of C. and suffer A. to Administer that A. will discharge B. of two Bonds In Assumpsit brought by B. in the common Pleas he alledged that he did renounce Administration and suffered A. to Administer and that A. had not discharged him of the two Bonds And it was found for the Plaintiff And thereupon Error was brought because B. doth not shew that he did renounce the Administration at the request of C. And Rolls for the Plaintiff in the writ of Error did assign the same for Error Justice Barckley all the other Justices being absent held that it was Error for consideration is a thing meritorious and all ought to be performed as well the request on the part of C. as the permission of the part of B. which ought to be shewed For perhaps B. was compelled to relinquish it in the Ecclesiastical Court as it might be for of right the wife ought to Administer And therefore it ought to have been averred that it was at the request of C. And therefore if it had been that he should renounce at the charge of C. it ought to be averred that it was at the charge of C. And it was adjourned 87. A man Libelled in the Spiritual Court for Tithes for barren cattle and it was moved for a Prohibition upon this suggestion viz. That he had not other cattle than those which he bred for the Plough and Pale and thereupon Barckley being alone there granted a Prohibition And the same Parson also Libelled for Tithes of Conies and for that also he granted a Prohibition for they are not Titheable if not by custome And here Barckley said That if Land be Titheable and the Tenant doth not plough it and manure it yet the Parson may sue for Tithes in the Ecclesiastical Court North against Musgrave 88. IN Debt upon the Statute of 1 2 Phil. Mar. c. 12. the words of which Statute are That no man shall take for keeping in pound impounding or poundage of any manner of distress above the sum of four pence upon pain of forfeiture of five pounds to be paid to the party grieved And the Plaintiff shewed that his Cattle were distreyned and impounded and that the Defendant took of him ten pence for the poundage And thereupon the Plaintiff brought an Action for the penalty of five pounds and found for the Plaintiff And the Judgment was That he should recover the five pounds and damages ultra praeter the mony taken for the poundage And thereupon a Writ of Error was brought and three things assigned for Error First because the Action was brought for the penalty of five pounds only and not for the six pence which was taken above the allowance of the Statute which ought not to be divided Which was answered by Justice Barckley all the other Justices being absent That notwithstanding it is good for true it is that he cannot bring his Action for fifty shillings part of the penalty because it is entire but here are two several penalties and he may divide and disjoyn them if he will or he may wave the six pence For quilibet potest renunciare juri pro se introducto The second was That he doth not demand that which is ultra praeter the four pence given by the Statute and yet the Judgment is given for that which is not good To which Justice Barckley said That the Judgment was good For no judgment is given for that which is ultra praeter the four pence but only for the four pounds because he doth not demand it And we cannot judge the Judgment to be erroneous by Implication The third Objection was That Costs and Damages are given which ought not to be upon a penal Law For he ought not to have more than the Statute giveth and therefore upon the Statute of Perjury no Costs are given so upon the Statute of Gloucester of Wast the Plaintiff shall recover no more than the treble value But Rolls who was on the contrary said That there are many presidents in the common Pleas that Damages have been given upon this Statute But Barckley and Iones who afterwards came and seemed to agree with Justice Barckley in the whole was against it That no Damages ought to be given and desired that the Presidents might be viewed But here Rolls offered this difference Where the penalty given by the Statute is certain as here upon which he may bring Debt there he shall recover Damages but where the penalty is uncertain as upon the Statute of Gloucester for treble damages the Statute which giveth the treble value and the like there because it is incertain he shall have no more Barckley asked Mr. Hoddesdon If the Informer should recover Damages And he and Keeling Clerk of the Crown answered No but said Damages should be given against him and it was adjourned 89. Skinner Libelled in the Ecclesiastical Court for thâ— Tithes of Roots of a Coppice rooted up And Porter prayed Prohibition And it was said by Iones and Barckley Justiceâ—â— no other Justice being present That if cause were not shewed before such a day that a Prohibition should be awarded because it is ad exheredationem and utter destruction of 〈◊〉 And the Opinion was that the
which cometh to the benefit of the Parson there if he demand Tithes of the thing in lieu whereof this is done that a Prohibition shall be granted And there is another rule That Custom may make that titheable which of it self is not titheable And here he said to Dr. Skinner being then in Court That he had two matters to help him and if any of them be found for him that a Prohibition ought not to be awarded 101. Justice Barckley said That if a man be living at the day of Nisi prius and dieth before the day in Banck the Writ shall not abate So if a man be living the first day of the â—â—rliament and dieth before the last day yet he may be Attainted and the reason is because in the eye and judgment of Law they are but one day by relation which the Law makes 102. There were three Brothers the Eldest took Administration of the goods of the Father and after Debts and Legacies paid the younger Brothers sued the eldest in the Ecclesiastical Court to compel him to distribute the Estate And thereupon a Prohibition was prayed and denied by the Court for they having Jurisdiction of the Principal may have Jurisdiction of the Accessary 103. A. Libelled against B. in the Spiritual Court for these words Thou art a Drunkard and usest to be Drunk thrice a week And upon that 150 Caroli in Easter-Term as you may see before a Prohibition was prayed and granted And now Littleton the Kings Sollicitor came in Court and moved for a Consultation and he said that the Statute of Articuli Cleri gave power unto the Ecclesiastical Court to have conusance of those and the like words Register 49 F. N. B. 51. They may hold plea for defamation as for calling Adulterer or Usurer 13 H. 7. Kellaway 27 H. 8. 14. And he cited many Judgments in the like cases where Prohibitions had not been granted and amongst others this Case Mich. 20 Iac. inter Lewis Whitton Libel in the Ecclesiastical Court for calling him Pander and no prohibition granted And the like Case was for calling another Pimp and no Prohibition granted Justice Iones That a Prohibition should be granted for they have conusance of defamation for any thing which is meerly Spiritual or which doth concern it where they have conusance of the principal else not as in Heresie Adultery and the like but in this Case they have not Conusance of the principal True it is that it is peccatum But if they should punish every thing which is Sin they would altogether derogate and destroy the Temporal Jurisdiction And therefore if I say that another is an Idle man or envious these are deadly Sins and yet they have not Conusance of them And he cited Coltrops Case adjudged in the Common pleas which was our very Case in point and there he said that upon solemn debate it was adjudged That a Prohibition should be awarded Bramston Chief Justice agreed Barckley contrary That a Consultation should be awarded and he said in many Cases although they have Jurisdiction of the principal yet they shall not have Conusance as in the Case of 22 E. 4. tit ' Consultation But he said that the Offence of Drunkenness is mixt and is an offence against the Spiritual and Common Law also and if it be mixt both may hold plea and Adultery and Murder are the common effects of Drunkenness which are offences against both Laws and therefore he shall be punished by both But yet Barckley yielded to the Judgment cited by Iones And therefore the whole Court Crooke being absent was That a prohibition should be awarded 104. Rolls moved this Case The Parishioners of a certain Parish in Devonshire did alledge a Custom to chuse the two Churchwardens of the Parish and they did so the Parson chose another and the Archdeacon swore one of the Church-wardens chosen by the Parish and refused to swear the other but would have sworn him who was chosen by the Parson And because they did refuse him they were Excommunicate Rolls prayed a Mandat to the Archdeacon to compel him to swear the other chosen by the Parish and a Prohibition also by reason of the Excommunication And he cited a preeedent for it which was the case of Sutton-Valence in Kent And the whole Court Crooke being absent inclined to grant them for they said they conceived no difference betwixt London and the Country as to that purpose for as in London they are a Corporation and may take Land for the benefit of the Church So throughout England they are a Corporation and capable to take and purchase Goods for the benefit of the Church And therefore they did conceive there was no difference See the case before the case of the Parish of Saint Ethelborough London 105. Keeling moved to quash an Indictment of Rescous because it is shewed that the Rescous was at W. and doth not shew that W. was within this County and if it was not within the County then it was an Escape and no Rescous And we cannot aver in this case that it was out of the County Farther it was not shewed where the Rescous was so that upon the matter it is no Arrest nor was the Indictment vi armis as it ought to be As to the first the Court strongly inclined that they might well intend it to be within the County because the Indictment says in Com. meo apud W. tent But for the other Exceptions the Indictment was quashed 106. In Trespass of Assault and Battery and Wounding the Defendant pleaded Not Guilty as to the Wounding and pleaded special matter of justification as to the Assault and Battery and found for the Plaintiff and it was moved in arrest of Judgment That the plea was repugnant for Assault and Battery doth imply Wounding and therefore it is repugnant for him to justifie it for it is a confession of wounding But Justice Crooke and Justice Barckley the others being absent were clear that the plea was good for so is the common form of pleading and farther he might be guilty of the Battery and not of the wounding for Crooke said Wounding implied Assault and Battery but not è contra Brookes against Baynton 107. IN a Writ of Error to reverse a Judgment given iâ— the Court of Common pleas in Trespass for assault battery and wounding it was assigned for Error by Maynard That there was variance betwixt the Original and the Declaration for the Original was only of Battery and Wounding of himself and he declared of Battery and wounding of him and his horse also for he said that quendam equum upon which the Plaintiff equitavit percussit its quod cecidit c. and that was not helped by the Statute But Rolls contrary and here is no variance for the alledging of striking of the horse was only inducement to alledge the Battery of himself for he doth not bring the Action for the beating of his horse for it was not alledged
killed B. inter horam decimam undecimam was adjudged to be naught And he took many exceptions all which were disallowed by the Court. For which cause Sir Matthew prayed his Clergy and had it Pasch. 17º Car. in the Common Pleas. Weeden against Harden 128. CUstome to pay Tithes in kinde for Sheep if they continue in the Parish all the year but if they be sold before shearing-time but an half-penny for every one so sold. And custome in the same Parish also to pay no Tithes of Loppings or Wood for fire or Hedges c. The first is an unreasonable custom for by such means the Parson shall be defeated of his Tithes But the last custom is good by the whole Court Sir Edward Powells Case 119. THe Lady Powell sued Sir Edward Powell her husband in the High Commission Court for Alimony Whereupon a Prohibition was prayed in this Court and granted Serjeant Clark who argued for the Prohibition The Spiritual Court cannot meddle with any thing which is not redressable by them they may compel a man tractare uxoreâ— or Divorce them but not grant Alimony which doth appertain to the Judges of the Common Law 7 8 H. 3. there is a Writ directed to the Sheriff to set out reasonable Estoverâ— for the Alimony of the wife President since the Statute of 1 Eliz. where Prohibitions have been granted in this Case viz. Sir William Chenyes Case Mich ' 8 Iac. in Comm ' Banâ—â— who committed Adultery and was separated and the wiâ—e sued for Alimony and a Prohibition granted P. 8 Iac. A Prohibition granted And by the Statute of 1 Eliz. they have not power to hold Plea of Alimony The words of the Statute are Reform Redress c. And it is not apt to say that Alimony shall be Reformed or Redressed And besides Alimony is a Temporal thing and chargeth a mans Inheritance and therefore they shall not intermeddle with it Serjeant Rolls contrary She may sue for Alimony in the Ecclesiastical Court but if they proceed to Fine or Imprisonment then a Prohibition lieth They have power of Separation which is the principal and therefore of Alimony which is Incident And the High Commission have the same power given to them by the Statute of 1 Eliz. as the Spiritual Court hath and therefore they may meddle with Alimony And where it was before objected The great inconvenience to the party by the citing him out of his Diocess for by that he should lose the advantage of his Appeal Rolls said It was good for any within the Province and that is the Court of the Province Banks Chief Justice Although that there be Presidents that the High Commission have hoâ—den Plea of Alimony and granted the same yet it was not Law And although though that Alimony be expressed in their Commission that doth not make it Law if it be not within the Statute As to the citing out of the Diocess he conceived the Commission should be useless if they might not do it and therefore he granted a Prohibition Crawly Reeve and Foster Justices agreed But they doubted whether the citing out of the Diocess were good or not for the great prejudice which might ensue to the party in losing his Appeal And in answer to the Objection of Rolls the Chief Justice said That the Ecclesiastical Court had not Jurisdiction of Alimony but if they had yet all the Jurisdiction of the Spiritual Court is not given to the High Commission by the Statute of 1 Eliz. And they all agreed That they might as well charge my Land with a Rent-charge as grant Alimony out of it and a Prohibition was granted 130. No Sequestration can be granted by a Court of Equity until the Proces of contempt are run out And by Reeve and Foster Justices The granting of Sequestration of things â—â—llateral as of other Lands or Goods is utterly illegal 131. Whereas upon Suggestion of a Modus decimandi a Prohibition was granted now a Consultation was prayed as to Offerings and granted because the Modus c. doth not go to the personalty 132. Upon a Jury retorned a stranger who was not one of the Jury caused himself to be sworn in the name of one who was of the Jury And he against whom the Verdict passed moved the Court for a new Trial upon that matter But the Court would not give way to it because it appeareth to them that he is sworn upon Record But all the Court agreed that he might be Indicted for that Misdemeanour and by Reeve and Foster Justices the parties may have an Action upon the Case against him 133. It was taken for a Rule by the Court That no Amendment should be after a Verdict without a consent 134. Trover and Conversion against husband and wife and declared that they did convert ad usum corum The Jury found the wise not guilty And by the Court this naughty Plea is made good by the Verdict Sir Richard Greenfields Case in the Kings Bench. 135. THou innuendo Captain Greenfield hast received mony of the King to buy new Saddles and hast coâ—sened the King and bought old Saddles for the Troopers Tâ—ver It is not actionable 8 Car. The Mayor of Tivertoâ— case One said of him That the Mayer had cousened all hâ—â— Brethren c. not actionable 9 Iac. in the Kings Bench Thaâ— the Overseers of the Poor had cousened the poor of their Bread not actionable 26 Eliz. in the Kings Bench Kerby and Wallers case Thou art a false Knave and hast cousened my twâ— Kinsmen not actionable K. is a cousening Knave not actionable 18 Eliz. in the Kings Bench. Serjeant Fenner hath cousened me and all my Kindred is not actionable Words are actionable either in respect of themselves or in relation to the person of whom they are spoken where Liberty is infringed the Estate impaired or Credit defamed there they aâ— actionable Mich. 29 H. 8. Rot. 11. Villain is not actionable Morgan and Philips case That he is a Scot actionable because he is an Alien born Hill 1. Car. in Com. Ban. Siâ— Miles Fleetwoods case Mr. Receiver hath cousened the King actionable in respect of his Office of Receivership And seâ— it was afterwards adjudged upon Error brought in the Kings Bench. If these words had been spoken of the Kings Saddler they had been actionable for thereby he might lose his Office but there is no such prejudice in our case and he is of another Imployment and is but for a time only But by Heath Justice and Bramston Chief Justice the words are actionable for it is not material what imployment he hath under the King if he may lose his imployment or trust thereby And it is not material whether the imployment be for life or years c. 136. A Lawyer who was of Counsel may be examined upon Oath as a Witness to the matter of Agreement not to the validity of an assurance or to matter of Counsel And in examining of a Witness Counsel
Statute speaks generally of Divorce and it is a penal Law and Heath said That by the Law of Holy Church the parties divorced causa adulterii might marry but parsrea not without licence and he cited the case of Anne Porter of late in the Kings Bench who was divorced causa saevitiae and afterwards married one Rootes and upon an Indictment upon this Statute it was doubted and debated whether it were within the Proviso of this Statute or not but resolved it was not because only a Divorce à cohabitatione and a temporal separation until the anger past but the divorce here is à vinculo matrimonii 174. One was chosen to be Clerk of a Parish-Church and was put in and continued Clerk three or four years but was never sworn and now a new Parson put him out and swore another in his place Keeling and Rolls Serjeant prayed a Writ of Restitution and compared the same to the Case of disfranchisement where Restitution lieth But Bramston and Heath Justices the other absent would not grant it And the Chief Justice said that the Doctor had not power to oust him for he said that it is a temporal Office with which the Parson had not to do and further they conceived that the Clerk hath remedy at Law wherefore they would not award a Writ of Restitution but they said that if the Clerk was never sworn they would award a Mandat to swear him to which the Counsel assented Trin. 17º Car. in the Common Pleas. 175. WHite exhibited a Bill in the Court of Request against Grubbe for Money due upon account upon which Mallet moved for a Prohibition because it 's no other than in the nature of a debt upon account of which a Court of Equity hath no Jurisdiction for by such means the King should lose his Fine the Defendant should be put to another Answer upon his Oath and which is above all they would refer the merits of the Cause to others and according to their Certificates make a Decree so that by this means they would create Courts of Equity without number Serjeant Clark contrary against the Prohibition for he said the Defendant had exhibited a Cross Bill and so had affirmed the Jurisdiction and he ought to have demurred to the Jurisdiction and he said that where parties assent to a Decree there the Kings Bench will not grant a Prohibition For he said that by the same reason that a man may chuse Arbitrators he may elect his Judges and further he said that the suit was for moneys due for divers things delivered by the Plaintiff being a Chandler in a Country-town which he ought to prove to be delivered and he had no proof but Crawley and Reeve Justices the others being absent granted a Prohibition because it is no other but an Action of debt upon account and Crawley said that the particulars are out of doors by the account in debt brought it is sufficient to say that the Defendant was indebted to him for divers Commodities And they accounted and upon the account the defendant was found to be in debt to him such a sum c. And note it was said in the Bill that the Plaintiff had no Witnesses to prove the delivery of the things aforesaid and notwithstanding they granted a Prohibition for they said there is no remedy in the Court of Requests if you have no proof But is was said that the Defendant in the Court of Requests had confessed the delivery of the things in his answer there For which cause the Judges said that this confession there might be given in evidence against him at Law 176. Three covenaâ—â—ed joyntly and severally with two severally and afterwards one of the Covenanters married with one of the Covenantees by Serjeant Mallet the Covenant is gone besides a man cannot covenant with two severally as a man cannot bind himself to two severally Further they joyned in in Action where the covenant is several that which they should not do Crawley and Reeve Justices did conceive that a man might covenant with two severally because that it differs from the case of a Bond for a covenant sounds only in damages but they conceived clearly that they ought not to joyn in action and it was adjourned 177. It was said in a Case at the Bar by Sergeant Godbold that it was a Rule in the Kings Bench That although an Atturney be dead yet the Warrant of Atturney might be siled which was not denied by the Court here Lawson and Cookes Case 178. IN a second deliverance which was entred Hill 16 Car. Rot. 1530 the Case was thus A man had a Rent-charge in Fee and for Arrerages thereof did distrain then granted the same over And the Question here was Whether he ought to avow or justifie and the doubt rested upon this viz. Whether the arrerages be gone by the grant of the rent notwithstanding the distress before taken or not By Serjeant Caâ—lis the arrerages are lost for without question he cannot have debt And he cannot avow for that depends upon the inheritance which is gone by the grant 4 Rep. 5. Ognels case 19 H. 6. 42. b. Acc. And here he hath avowed and not justified as â—e ought for to excuse himself of damages and therefore it is naught But he took this difference betwixt the Act of God and the Act of the party as here it is where it is by the Act of God as where there is grantee for anothers life of â—â—ent and cestuy qui vie dieth or where a man hath rent 〈◊〉 the right of his wife and she dieth in those cases the arresages shall not be lost But where a man grants over the rent as in our Case which is his own Act there the arrerages are lost Institut 285. A man intitled to waste accepts of a surrender it destroys his Action otherwise where it is by act of Law So if a man bring debt for twenty pounds and afterwards accepts ten pounds that shall abate the Writ because that it is his own Act and this difference may be collected out of the book of 19 H. 6. Besides until avowry it doth not appear upon Record for what the distress is taken whether for rent or for damage feasant Serjeant Godbold contrary that he ought to avow because the rent in this case is not gone and he said there was a difference between this Case and Ognells case for there was no distress taken before the rent granted as here is and there the privity is gone and the distress follows the rent but here we have a pledge for the rent which is the distress and return of the cattle if it be found for us 19 H. 6. 41. a. Where the distress was lawfully taken at the beginning there we may avow and it is good to intitle us to a retorn 22 E. 4. 36. Where there is a duty at the time of the distress there he shall always avow and not justifie and at least
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
harmless and doth not shew how as he ought to have done but he ought to have pleaded non damnificatus and that had been good without any further shewing which he hath not done and therefore the Plea was not good and it was agreed that the same was not helped by the Demurrer because the same was matter of substance but the Plaintiff might take advantage of it notwithstanding and therefore Judgment was given for the Plaintiff 201. In Debt Judgment was given against the principal whereupon a Scire facias issued forth against the Bail and Judgment upon Nihil dicit was given against them whereupon a Writ of Error was brought and Error assigned that there was no warrant of Attorny filed for the Plaintiff and upon debate whether the warrant of Attorny ought to be filed or on the Court seemed to incline their opinion upon these differences but gave not any Judgment First where it may appear to the Court that there was a warrant of Attorny and where not If there was not any warrant of Attorny there they cannot order the making of one but if there was one they conceived that they might order the filing of it Second difference Where the warrant wanting were of the part of the Defendant and where of the part of the Plaintiff in the Writ of Error if it be of the part of the Plaintiff such a warrant of Attorney shall not be filed because he shall not take advantage of his own wrong the last thing was where the Record by the lachess of the Plaintiff in the Writ of Error is not certified in due time there the warrant of Attorny shall be filed And the Books cited to warrant these differences were 2 H. 8. 28. 7 H. 4. 16. 2 Eliz. Dyer 180. 5 Eliz Dyer 225. 1 2 Phil. Mar. Dyer 105. 15 Eliz. Dyer 330. 20 Eliz. Dyer 363. and 6. El. Dyer 230. Note that it was said by Crawley That it is all one wheâ—e there is no warrant of Attorney and where there is and he said there are many Presidents accordingly and that the same is holpen by the Statute of 8 H. 6. cap. 1 2. But Bankes Chief Justice contrary That it is not helped by the Statute of H. 6. and so it is resolved in the 8 Rep. 162. And he caused the Proâ—onotharies so search Presidents but yet he said they should not sway him against the printed Law because they might pass sub silentio And the Chief Justice observed also that the same is not holpen by the Statute of 18 Eliz. for that helps the want of warrant of Attorny after Verdict only and not upon Nihil dicit as this case is or upon wager of Law or upon confession or non sum informatus And the Court said That it shall be a mischievous case that Attornies should be suffered to file their warrants of Attorny when they pleased and therefore they gave warning that none should be filed after the Term and willed that the Statute of 18 Eliz. cap. 16. should be put in execution Mich. 17º Car. in the Kings Bench. 202. ACertiorare was directed to the Commissioners of Sewers who according to the Writ made a Certificate to which Certificate divers exceptions were taken by Saint-Iohn the Kings Sollicitor First that it appeareth not by the Certificate that the Commission was under the Great Seal of England as it ought to be by the Statute of 23 H. 8. cap. 5. Secondly the Certificate doth not express the names of the Jurors nor shew that there were twelve sworn who made the prâ—sentment as by the Law it ought to be but only quod praesentatum fuit per Iurator ' so that there might be but two or three Thirdly it appears by the Certificate that it was presented by the Jury That the Plaintiff ought to repair such a Wall but it is not shewed for what cause either by reason of his Land prescription or otherwise Fourthly they present that there wants reparation but doth not shew that it lies within the Level and Commission Fifthly there was an Assesment without a presentment contrary to the Statute for it is presented that such a Wall wanted reparation and the Commissioners assessed the Plaintiff for reparation of that Wall and another for which there was no presentment Sixthly the Tax was laid upon the person whereas by the Statute it ought to be laid upon the Laâ—d Seventhly there was no notâ—ce given to the Plaintiff which as he conceived ought to have been by reason of the great penalty which folâ—ows for non-payment of the Assesment for by the Statute the Land ought to be sold for want of payment These were the Principal exceptions taken by the Sollicitor Lane thâ— Princes Attorney took other exceptions First because they assess the Plaintiff upon information for they said that they wâ—re credibly informed that such a Wall wanted reparation and that the Plaintiff ought for to repair it whereas they ought to have done it upon presentment and not upon information or their private knowledge Secondly that they assessed the Plaintiff and for not payment sold the distress which by the Law they ought not to do for that enables them only to distrein and it was intended by the Statute that a Replevin might be brought in the Case for it gives Avowâ—y or Justification of a distress taken by reason of the Commission of Sewers and there ought to be a Replevin otherwise no avowty and if Sale of the distress should be suffered then that priviledge given by the Parliament should be taken away which is not reasonable Keeling of the same side and he said that it was adjudged Pasch. 14 Car in this Court in Hungers case That the certificate of the Commissioners was insufficient because that it was not shewed that the Commission was under the Great Sâ—al of England as by the Statute it ought to be and the Judges then in Court viz. Mallet Heath and Bramston strongly inclined to many of the exceptions but chiefly to that that there wanted virtute Literarum Paten But day was given to hear Counsel of the other side 203. A man acknowledgeth a Statute and afterwards grants a Rent-charge the Statute is afterwards satisfied Whether the grantee of the rent may distrein without suing a Scire facias was the Question which was twice or thrice debated at the Bar but because it was before that Mallet the puisne Judge was Judge the Court gave order that it should be argued again Thornedike against Turpington in the Common Pleas. 204. IN Debt upon a Bond the Defendant demanded Oyer of the Condition and had it which was that the Defendant should pay so much in a house of the Plaintiffs at Lincoln The Defendant pleaded payment at Lincoln aforesaid upon which they were at issue and the Venire facias was De Vicines civitatis Lincoln and found for the Plaintiff And now it was moved in arrest of Judgment that it was a mis-trial because the Venire
facias ought to have been of the body of the County and not of the City which was also a County of it self but it was resolved by the Judges viz. Foster Reeve and Bankes chief Justice Justice Crawley only against it that the trial was good and this resolution was grounded upon the Book of 34 H. 6. 49 50. pl. 17. there being no authority in the Law as was agreed in point to this case but the Case aforesaid And it was taken for a rule that where it doth not appear upon the Record that there is a more proper place for trial than where the trial was that there the trial is good but here is not a more proper place Further the chief Justice said that it was not possible to be tried in the body of the County because that the payment was to be in the City and he said it is true that if a man speak generally of the County of Lincoln it shall be intended of the body of the County and not the City because that the City is but derivative out of the County and further he said that the Judges are bound to take notice of a County not of a particular liberty Yet it was resolved here because the trial was in the most proper place and could not be otherwise that the Venire facias was well awarded and the trial good See the Book of 34. H. 6. Bayly against Garford 205. BAyly brought an Action of Debt upon a Bond against Garford executor of another the Defendant pleaded Non est factum of the Testator upon which a special Verdict was given viz. That the Testator was bound in that Bond with two others joyntly and severally and that afterwards the Seals of the two others were eaten with mice and râ—ts and whether now that were the Bond of the Testator or not was the Question which the Jury referred to the Court and it was now argued by Serjeant Whitfield for the Plaintiff that the Obligation stood good against the Defendant notwithstanding the eating of the Seals of the two others and his reason was Because that where three are bound joyntly and severally that is all one as if they had been several Obligations for as when three are bound joyntly and severally there may be one Precipe one Declaration and one Exâ—cution against them all together so when three are bounden joyntly and severally there may be several Precipes several Declarations and several Executions against them so it is as it were several and distinct Obligations and therefore the avoiding of part is not the avoiding of the whole Further he put cases where a Deed which is intire may be void in part and good for the residue 14 H. 8. 25 26. 9. H. 6. 15. and Piggots Case 11 Rep. 27. Where it is resolved that if some of the Covenants of an Indenture or conditions of a Bond are against the Law and some good and lawful that in that case the covenants and conditions which are against the Law are void ab initio and the others shall stand good and he cited the 5 Rep. 23. Matthewsons Case as a strong case to this purpose But the Court said that that case of the 5 Rep. differed from this case for there certain persons covenant separatim and there the breaking of the Seal of one of the parties from the deed shall not avoid the whole deed for it is as several deeds but here they are bound joyntly and severally which alterâ—th the case Besides he said the Book in 3 H. 7. 5. made not against it for there it shall be taken that they were bound joyntly and not severally as in this case and he cited a Repâ—rt in the point which was Trinit 2. Iae. in this Court betwixt Banning and Symmonds where the Case was That twenty â—â—ght Merchants were bound joyntly and severally asâ—â—ur case is and three of their seals were broken from the deâ—d but notwithstanding it was resolved that the deed did 〈◊〉 good against the others note that the Court doubted of that Report and therefore ordered that the Roll should be searched and the Objectiâ—â— here that it is joynt is worth nothing because it is several also and he said that iâ— two levy a Fine one within age and the other of full age he said it is good in part and voidable in part and if a Fine which is a matter of Record may be good in part and voidable in part à forâ—iori he conceived a matter in fait as a Bond and 〈…〉 of the Fine he said was Englishes case adjudged and he would have taken a difference betwixt Rasing Interâ—â—â—tion and Addition as is in Piggots Case that the same shall avoid the whole deed But that the breaking of the Seal of one should not avoid it but for part But the Court said That it was clearly all one wherefore he prayed Judgment for the 〈◊〉 Serjeant Pheasant contrary That the whole deed is avoidâ—d and non est factum of the Defendant it is not the same Bâ—â—d in nature and effect as it was before and as 5 Rep. 119 Wâ—elpdales Case is if the deed were altered by interâ—â—â—ation â—odition rasure and breaking of the Seal there the Dâ—â—â—ndâ—nt may plead non est factum because it is not the same deed so in this case it is not the same deed for whereas it was joynt at the first now if the deed should stand good against the Defendant only it should be his Bond only where it was his Bond and the Bond of another at the first and so not the same Bond and 3 H. 7. 5. ought to be taken of a Bond joynt and several because that most Bonds are so and then it is clear our very Case and there it is resolved That if two be bounden in a Bond and the Seal of one is dissolved and taken from the Bond that it avoids the whole deed and it is not an Obligation joynt and several but joynt or several at the Election of the Obligee for he cannot use both and when he hath by his own Act deprived himself of this Election as in our Case which goes in prejudice of the Obligor who is the Defendant the whole Bond is thereby gone for by that means the Defendant only shall be charged where both were and therefore he conceived that if I grant unto a man an Annuity or a robe if the grantee release one of them both are gone because he hath deprived himself of Election so in this case he by his default should prejudice the defendant here which ought not to be he compared this case to Laughters case C. 5. Rep. 21. Besides if the whole deed should not thereby be avoided it should be a great prejudice to the Defendant in as much as if all happen to be in execution for the debt due upon that Bond as by the Law they may and the one escape the same should give advantage to the others to have Audita querela and
the matter and the form but he objected that where it is said that he did drive quoddam gestatorium that gestatorium is a word incertain and that therefore the Information should be insufficient but he agreed that notwithstanding that that it was good by reason of the Auglicè for that reduceth it to certainty and he cited the Case betwixt Sprigge and Rawlinson Pâ—seh 15 Car. in this Court where the Case was that a man brought an Ejectione firme de uno repositorio which word was put for a Warehouse and resolved that it was naught for the incertainty but the Chief Justice here said that it had been good if it had been explained by an Anglicè and so he said it was resolved in that Case and therefore he agreed that the Information here was good notwithstanding that exception by reason of the Anglicè this offence is an offence against the Commonwealth and such an offence for which a man may be indicted for it is â—aid in the Information to be ad nocumentum Ligeorum Domini Regis wherefore he agreed that the Judgment should be a fine with Capiatur and he said that it cannot be part of the Judgment in this Case that the Defendant should repair it because it is said in the Information expresly thaâ— the Parishioners ought to repair it and the Chief Justice said and so Justice Heath which I before omitted that the Township cannot have their Actions for so there should be multiplicity of Actions which the Law will not suffer but he conceived that if any man had a special and peculiar damage then he might have his Action otherwise not as if a man were bound by prescription or tenure to repair that place called Lobbe-Lane or any part of it then he might have his action upon the Case against the defendant otherwise not he agreed that the fine should be secundum quantitatem delicti but yet not too high because the other Parishes may have their Information in like manner against the Defendant but he agreed to adjorn the setting of the fine Southward against Millard 209. IN an Ejectione firme the Defendant pleaded Not Guilty Upon which a special Verdict was found Nicholls possessed of a Term for 1000 years devised the same to E. his daughter for life the remainder to Iohn Holloway and made Lowe the Husband of the Daughter his Executor and died Iohn Holloway devised his interest to Henry and George Holloway and made Oliver and others his Executors and died afterwards Lowe spake these words If E. my wife were dead my estate in the premisses were ended and then it remains to the Holloways E. died the Executors of Iohn Holloway made the Lease to the Plaintiff and Lowe made the Lease to the Defendant who entred upon the Plaintiff who brought Ejectione firme and whether upon the whole matter the Defendant were guilty or not of the trespass and ejectment supposed the Jury referred to the Court and the points upon the Case are two First whether the words spoken by Loâ—e the Executor be a sufficient assent to the devise or not admitting that it is then the Second Point is Whether thâ— assenâ— came in due time or not as to the interest of Iohn Holloway in the remainder because he died before the words spoken which should make the assent and as to that the pâ—int is no other but that the Legatee dieth before assent to the Legacie whether assent afterwards came too late or that the Legacie shall be thereby lost or not that is the Question and by Justice Mallet it is a good assent and that in due time And here some things ought to be cleared in the Case First that the devise to Iohn Holloway in the Remainder is good by way of executory devise Secondly that the devise by Iohn Holloway to Henry and George is a void devise because but a possibility Thirdly that the assent to the first devise is an assent also to him in the remainder And lastly that if an Executor enter generally he is in as Executor and not as devisee all which are resolved in Lampetts and in Matthew Mannings Case Now these Cases being admitted the Question is Whether that Lowe the Executor here hath made a sufficient Declaration to take the Term as Devisee in the right of his wife or not for he hath his Election to take it as executor or in the right of his wife and as I conceive he hath made a good Election to have it as Legatee in the right of his wife The last words viz. That then it remains to the Holloways which is impossible by Law to be because that the devise to them was void he did not waigh because but additional and the first words of themselves are sufficient to make an assent it is not a transferring of an Interest but an assent only to it which was given by the first Testator and after assent the devisee is in by the first Testator and that being but a perfecting Act like an Attornment and admittance of a copy-holder the Law always favours it for the Law delights in perfection and therefore an assent by one Executor shall binde all so an assent by one Infant-Executor above 14 years shall binde the other so an assent to the particular Tenant is good to him in the Remainder Admittance of a Copyholder for life is admittance of him in the remainder which Cases shew that an assent being but a perfecting act the Law shall always make a large construction of it and he said that Mannings case in the 8 Rep. is the very Case with our Case as it appeareth in the pleading of it in the new Book of Entries 149. b. and also in Mannings Case aforesaid but that Case was not resolved upon that point for the devise there was paying so much and the devisee being also executor payed the money and therefore it was ruled to be a sufficient assent to the Legacie and therefore our case may be doubted notwithstanding that case and for my part I conceive it a good assent to the Legacie in our Case And for the second point I hold that the assent comes in due time to settle the Remainder although that Iohn Holloway were dead before for otherwise by this common casualty of death which may happen so suddenly that an assent cannot be had before or by the wilful obstinacie of the Executor that he will not assent Legatees should be defeated of their Legacies which would be a great inconvenience Besides I hold that the devise by Iohn Holloway was void he having but a possibility at the time of the devise and therefore that it remain to his Executors and by consequence that the Ejectione firme brought by their Lessee will lie Justice Heath acc for the Plaintiff Three things are here considerable First whether there need any assent at all of the Executor to a Legacie Secondly whether here be an assent or not Thirdly whether this assent come in due
that there they might sue in the Ecclesiastical Court yet he said that in many cases where there is no remedy at Law yet there is remedy in the Ecclesiastical Court and so he conceived in this Case But that which made Justice Reeve to doubt whether a Prohibition should issue as this Case was or not was for the incertainty of their Sentence which was for speaking of these words contained in the Articles aut eorum aliqua which he said is therefore not good for he said that Judgments or Sentences ought to have these two things Veriâ—y and Certainty and if there want any of these two it is not good and if it should be suffered it were a mischievous case for by this â—ick they might hold Plea of words not within their Jurisdiction and we should not have power to prevent it for if some of the words should be actionable some not they might by this way hold Plea as well of words which were not actionable or punishable by them as of those which were To which Foster agreed but Justice Crawley and the Chief Justice conceived that no Prohibition would lie notwithstanding that for that might be the course amongst them and although it be incertain yet it may be allowed by them for Law and Reeve was of opinion that a man might be indicted at the Assises before the Commissioners of Oyer and Terminer for speaking of such defamatory words and that he grounded upon the Commission of Oyer and Terminer which giveth them power to hold Plea de prolationibus verborum and he conceived that a man might be fined for them But the Chief Justice contrary for the Commission giveth them power to hold Plea secundum legem consuetudinem Angliae Now if the speaking of such words be not punishable by the Law and Custome of England then we cannot hold Plea of them by way of indictment or otherwise at the Assises for them 222. It was said by the whole Court that a bare Information at the Bar is not sufficient to cause the Court to examine any man upon Interrogatories wherefore they ruled that the party should make an Affidavit 223. Judgment was given against the principal and after a Scire facias was brought against the Bail who appeared and pleaded Nul tiel Record of the Judgment given against the principal upon which day was given to bring in the Record in Court at which day the principal tendred his body in discharge of the Bail and now it was prayed by Pheasant Serjeant that it might be admitted but Reeve Foster and Bankes Chief Justice inclined against it True it is that the condition of the Bail is that they render his body indefinitely withoue limiting any time in certain when they shall do it or pay the condemnation but yet they conceived that if they appear and plead such a dilatory Plea as this is that thereby they have waived the benefit of bringing in his body and Justice Foster said that the same being general and uncertain the Law ought to determine a time certain when it shall be done for otherwise by the same reason that they may do it now they may do it twenty years after which should be inconvenient and against the meaning of the condition And Reeve said that if this trick should be suffered that the Bail might plead such a dilatory Plea and afterwards bring in the body of the Principal the Plaintiff should lose all his costs of suit which he had expended in the suit against the Bail which would be mischievous But Justice Crawley that the usage hath always been that the Bail might bring in the body of the Principal at any time before judgment given against them upon the Scire facias and there are many presidents in this Court to that purpose To that the Court seemed to agree if they plead not such a dilatory Plea as in this case Therefore the Court awarded that the Pronotharies should consider of it and should certifie the Court what the use hath been in such case 224. Serjeant Pheasant came to the Bar and said to the Court that antiently as appeareth by our old Books the usage was that the Serjeants in any difficult point of pleading did demand of the Court their advise concerning it â—nd accordingly were used to be directed by the Court wherefore he humbly prayed of the Court to be resolved of this doubt A man was imprisoned for not submitting to Patentees of a Monopoly after seven or eight years past and then he brought an Action of false Imprisonment and that is grounded upon the Statute of Monopolies 21 Iac. c. 3. whether in this case the Defendant might plead the Statute of 21 Iac. c. 16. of Limitations of Actions or not was the Question But the whole Court was against him that they cannot be Judges and Counsellors and that they ought not to advise any man for by that means they should prevent their Judgment and they confessed that that was the use when the Serjeants used to count at the Bar as appeareth in our Books But they said you shall never find the same to be used since they counted and declared before they came to the Bar and these Counts and Declarations are upon Record wherefore the Court upon these considerations would not advise him Dewel and Masons Case 225. THis Case of Dewel and Mason which see before pl. 184. came now again in debate and it was adjudged by the whole Court viz. Foster Reeve Crawley Justices and Bankes Chief Justice nullo contradicente that the Plaintiff ought to have Judgment and that upon these differences First where the Defendant is to do a single Act only and where he hath election of two things to do Secondly the second difference stood upon this that no notice is to be given or tender made of a thing which lieth not in the power or proper conusance of the Plaintiff so as the difference stands where it is a thing which lies in the conusance of the Plaintiff and where not and therefore where the award was that the Defendant should pay to the Plaintiff eight pound or three pound and costs of suit as should appear by a note under the Attorneys hand of the Plaintiff it was resolved in that Case that although the Attorney be in some respect as a servant to his Master yet to this purpose he is a meer stranger and therefore the Plaintiff was not bound to make any tender of that note but the Defendant ought to have gone to the Plaintiffs Attorney and required a note of him of the costs of suit so as he might have made his Election But they all agreed that where it is a thing which lieth in the knowledge of the Plaintiff that there he ought to have made a tender or given notice but in this Case it lieth not in the knowledge of the Plaintiff and he cannot compel the Attorney to make it wherefore it was resolved that the Plaintiff should have
by this way he might defeat the Lord of his services The custom was That a woman should have her widows estate the Copy-tenant made a Lease for one year and died and adjudged that the woman should have her widows estate as excrescent by Title Paramouns the estate made for one year see Hab. Rep. And as these the estate of the wife was derivative so here and although it be not the intire Copyhold estate yet it is part of it and a continuation of it and is liable to every charge of the Lord 6 Rep. Swaines case wherefore he concluded that the custom is good and that the avowant ought to have Judgment Justice Heath the custom is good both for the matter and form of it where it was objected that for a personal injury done by one the cattle of another cannot be disâ—teined I agree that it is unjust that where alius peccat alius plectitur but our case differs from that rule for this was by custom for Transit terra cum onere he who shall have the land ought to undergo the charge Besides wheresoever a custom may have a good beginning and ex certa rationabili causa it is a good custom Bracton lib. 1. cap. 3. But this might have a reasonable ground at the beginning for here the punishment is a qualification of the Law for where by the Law the Copyhold-tenant is to forfeit his copyhold-tenement for waste either voluntary or permissive now this penalty is abridged and made more easie and therefore is very reasonable 43 E. 3. 5. 44 E. 3. 13. custom that if a tenant be indebted to the Lord that he may distrein his other tenants for it is not good but if it were for Rent it should be good because it may be the tenants at the first granted it to the Lord 22 H. 6. 42. 12 H. 7. 15. 35 H. 6. 35. custom to sell a distress is good and yet it cannot be done but by Act of Parliament And where it was objected that the amercement is personal and therefore cannot extend to the Plaintiff to that he answered that it is not meerly personal but by custom as aforesaid is now made a charge upon the Land and therefore not meerly personal Besides if the custom in this case had been that the Plaintiff for waste should forfeit his Copyhold-tenement it had been reasonable à fortiori in this case that he shall be only amerced wherefore he concluded that the custom is good and therefore that the avowant should have judgment Bramston Chief Justice that the custom is good and that he conceived to be clear First he conceived that the custom is reasonable as to the Copy-tenant for clearly by the Common Law if he suffer or do waste he shall forfeit his Copyhold and therefore this custom is in mitigation of the penalty and therefore is reasonable and that is not denied but the only doubt here is whether the custom to distrein the under-tenant for an amercement layed upon the tenant be a good custom or not and he conceived it is for the custom which gives the distress knits it to the Land and therefore not meerly personal as it was objected And if the custom had not extended to the under-tenant he might have distreined him for otherwise the Lord by such devise as there is viz. by the making of a Lease for one year by the Tenant should be defeated of his services 3 Eliz. Dyer 199. resolved custom to seise the cattle of a stranger for a Heriot is not good because that thereby the property is altered But custom that he may distrein the cattle of a stranger for a Heriot is a good custom because the distress is only as a pledge and means to gain the Heriot and in our case the Land is charged with the distress and therefore the cattle of any one which come under the charge may be distreined for it and therefore he held clearly that the custom was good and that the avowant should have Judgment Justice Barckley at this time was impeached by the Parliament of High Treason 232. A man was indicted for murder in the County Palatine of Durham and now brought a Certiorare to remove the Indictment into this Court and it was argued by Keeling at the Bar that Br ' Domini Regis de Certiorare non currit in Com' Palatinum But the Justices there upon the Bench viz. Heath and Bramston seemed strongly to incline that it might go to the County-Palatine and they said that there were many presidents in it and Justice Heath said that although the King grant Iura Regalia yet it shall not exclude the King himself and he said their power is not independent but is corrigible by this Court if they proceed erroneously and he said that in this case the party was removed by Habeas corpus and by the same reason that a Habeas corpus might go thither a Certiorare might for which cause it was awarded that they return the Writ of Certiorare and upon the return they would debate it Hillary 17º Car ' in the Common Pleaâ— â—ayton against Grange in a second deliverance 233. JOhn Layton brought a second deliverance against Anthony Grange and declared of taking of certain Cattle in a place called Nuns-field in Swassam-Bulbeck and detainer or them against gages and pledges c. The defendant made conusance as Baylift to Thomas Marsh and said that long time before the taking alledged one Thomas Marsh the father of the Plaintiff was seised of the Mannor of Michel-Hall in Swassâ—â—-Bulbeck aforesaid of which the Land in which time 〈◊〉 of mind c. was parcel and that one Anthony Cage and Dorothy his wife and Thomas Grange and Thomasine 〈…〉 of the Land in which c as in the right of the saiâ— Dorothy and Thomasine their wives in deâ—esne as of sâ—e and that they held the Land in which c. as of his Mannor of Michel-Hall by soccage viz. fealty and certain Rent payable at certain days and that the said Thomas Marsh was sâ—iâ—ed of the said services by the hands of the said Anthony Cage and Dorothy his wife Thomas Grange and Thomasine his wife as by the hands of his very Tenants and he derived the Tenancie to one Sir Anthony Cage and the Seigniory to Thomas Marsh the son by the death of the said Thomas Marsh the Father and because that fealty was not done by Sir Anthony Cage he as Bayly of the said Thomas Marsh the son did justifie the taking of the said cattle ut insâ—a feoduâ—â— dominium sue c. The Plaintiff by Protestation said that Non 〈◊〉 the Lands aforesaid of the said Thomas Marsh as of his Mannor of Michel-Hall in Swassaâ—â—-Bulbeck aforesaid by soccage viz. fealty and rent as aforesaid and pro placito said that the Defendant took the cattle as aforesaid and detained them against gages and pledges and then traversed Absque hoc that the said Thomas Marsh
the Father was seised of the said services by the hands of the said Anthony Cage and Dorothy his wife and Thomas Grange and Thomasine his wife as by the hands of his very Tenants upon which the defendant did demur in Law and shewed for cause of demurrer that the Plaintiff had traversed a thing not traversable and if it were traversable that it wanted form and this Term this Case was debated by all the Judges and it was resolved by them all that the Traverse as it is taken is not well taken Justice Foster that the Traverse taken by the Plaintiff is not well taken at the Common Law the Lord was bound to avow upon a person certain but now by the Statute of 21 H. 8. cap. 19. he may avow upon the Land and this avowry clearly is an avowry upon the Statute for it is infra feodum dominium sua c. and so is the old Entries 565. then the Question here is whether the Plaintiff be privy or a stranger â—or iâ— he he a stranger then clearly at the Common Law he may plead no plea but out of his Fee or a Plea which doth amount to so much as appeareth by the Books 2 H. 6. 1. 17 E. 3. 14 15. 34 E. 3. Avowry 257. and many other Books as you may find them cited in the 9 Rep. 20. in the case of Avowry here it doth not appear but that the Plaintiff is a stranger and therefore whether he be inabled by the Statute of 21 H. 8. to take this traverse or not is the Question and I conceive that he is true it is as it was objected that this Statute was made for the advantage of the Lord but I conceive as it shall enable the Lord to avow upon the Land so it shall enable the Tenant to discharge his possession as if the avowry were upon the very tenant and so is the Institutes 268 b. and so is Brown and Goldsmiths case in Hobarts Rep. 129. adjudged in the point and the Plaintiff here who is a stranger is in the same condition as a stranger was at the Common Law where the Avowry was made upon the Land for a Rent-charge in such case he might have pleaded any discharge although he were a meer stranger and had nothing in the Land so may he now after the Stat. of 21 H. 8. Then admitting that the Plaintiff might take this Traverse by the Statute then the Question is whether the Plaintiff hath taken a sufficient Traverse by the Common Law or not for the Statute saith that the Plaintiff in the Replevin or second deliverance shall have the like Pleas as at Common Law and I conceive that this plea is not a good plea at the Common Law And now I will consider whether if the Plaintiff had been a very Tenant he might have pleaded this plea or not and I conceive that if this traverse had been taken by a very tenant it had not been good I agree the 9 Rep. 35 Bucknels case that Ne unque seisie of the services generally is no good plea but Ne unque scisie of part of the services is a good plea and so is 16 E. 4. 12. 22 H. 63. and the reason that the first Plea is not good is because that thereby no remedy is left to the Lord neither by avowry nor by writ of customs and services And therefore the plea here is not good because it is a traverse of the services generally Besides here the traverse is not good because that the Plaintiff hath traversed the seism and hath not admitted the tenure and it is a rule in Law that no man may traverse the seism of services without admitting a tenure and therewith agreeth 7 E. 4. 28. 20 E. 4. 17. 9 Rep. Bucknells case and then if the very tenant could not have taken this traverse much less a stranger here Further here the tenure was alledged to be by rent and fealty and the avowry was for the fealty and the Plaintiff hath traversed the seism as well of the rent which is not in demand as of the fealty and therefore the traverse is not good But it was objected that seism of rent is seism of fealty and therefore of necessity both ought to be traversed I agree that seism of rent is seism of fealty but it is no actual seism of the fealty in point of payment or to maintain an assise for it as is 44. E. 3. 11. 45 E. 3. 23. and the distress here is for actual seism of fealty Every traverse ought to be adidem as 26 H. 8. 1. 9 Rep. 35. but here the traverse is of the Rent which is not in question therefore is not good in matter of form Wherefore he gave Judgment for the avowant Justice Reeve the first thing here coâ—siderable is whether this be a conusance at the Common Law or upon the Statute and I hold clearly that it is within the Statute and for that see new Entries 597 599 27 H. 8. 20. and it is clear that the Lord hath Election either to avow upon the Statute or at the Common Law and that is warranted by Institutes 268. and 312. 9 Rep. 23. b. 36. a. 136. a. and then admitting that it be an avowry upon the Statute The second point is whether the Plaintiff be inabled by the Statute to take this traverse or not for it is clear that at the Common Law the Plaintiff could not have this Plea for a stranger could not plead any thing but hors dâ—â—son fee or a plea which did amount to as much I agree the Books of Br. Avowry 113. 61. 9 Rep. 36. 27 H. 8. 4. â—0 Br. Avowry 107. Instit. 268. which are against me yet I conceive undâ—r favour that notwithstanding any thing that hath been said that the Plaintiff is not enabled by the Statute to take this traverse and I ground my Opinion upon the Reason at Common Law as also upon the Statâ—â—e the first reason at the Common Law I ground upon the Rule in Law res inter alios actâ— alteri nocere non debet it is not reason that he who is a stranger shall take upon himself to plead to the Title of the Tenure with which he hath nothing to do in prejudice of the very Tenant and this reason is given by the Books of 22 H. 6 39 E. 3. 34. My second reason is grounded upon the maxime in Law which is That in pleading every man ought to plead that which is pertinent for him and his Case And that 's the reason that the Incumbent at the Common Law cannot plead to the right of the Patronage wherein he hath nothing but the Patrou shall plead it as appeareth by the 7 Rep. 26. and many other Books there cited and these are my reasons at the Common Law wherefore the Plaintiff being a stranger cannot plead this Plea Secondly I ground my self upon the purvieu of
not traversable because that the seism is not material 7 E. 4. 29. Com. 94. 8. Rep. 64. Fosters Case Secondly where the Seigniory is not in question there no traverse of seism so it is in Case of Writ of Escheat Cessavit Rescous c. and therewith agree the Books of 22 H. 6. 37. 37. H. 6. 25. 4. Rep. 11. a. Bevills Case Thirdly where the Lord and Tenant differ in the services there no traverse of the seism but of the tenure but where they agree in the services there the seism may be traversed and therewith agree the Books of 21 E. 4. 64. 84. 20 E. 4. 17. 22 Ass. p. 68. 9 Rep. 33. Bucknells Case and therefore the traverse here is not good First because it is a general traverse of the seism per manus the tenure not being admitted as it ought to be by the fourth rule in Bucknells Case and therewith agreeth 23 H. 6. Avowry 15. Besides it is a Rule in Law That a man shall never traverse the seism of services without admitting of a tenure and in this Case he took the tenure by protestation and therefore the traverse here is not good and therewith agreâ—â— 15 E. 2. Avowry 214. Further the traverse here is not good because he hath traversed a thing not in demand which is the rent for he ought to have traversed the seism of the fealty only for which the distress was taken and not the rent as here he hath done and therewith agreeth 9 Rep. 35. a. and 26 H. 8. 1. But as this Case is he could not traverse the fealâ—y only because that seism of rent is seism of fealty and therewith agreeth 13 E. 3. Avowry 103. 3 E. 2. Avowry 188. 4 Rep. 8. b. Bevills Case and therefore he ought to traverse the tenure True it is as it was objected by my Brother Foster that seism of Rent is not an actual seism of fealty as to have an assise but is a sufficient seism as to avow And we are here in Case of an avowry and therewith agreeth the 4 Rep. 9. a. Bevills Case wherefore I conclude that Judgment ought to be given for the avowant Here note that it was resolved by all the Judges of the Common Pleas that a traverse of seism per manus generally without admitting of a tenure is not good and therefore see 9 Rep. 34. b. 35. a. which seemeth to be contrary Hill 17º Car in the Kings Bench. Hayward against Duncombe and Foster 234. THe Case was thus The Plaintiff here being seised of a Mannor with an advowson appendant granted the next avoidance to I. S. and afterwards bargained and sold the Mannor with the advowson to the Defendants D. and F. and a third person and covenanted with them that the Land is free from all incumbrances Afterwards the third person released to the Defendants who brought a writ of Covenant in the Common Pleas and there Judgment was given that the Action would lie Whereupon Hayward brought a Writ of Error in this Court The point shortly is this Whether the Writ of covenant brought by the Defendants without the third person who released were good or not and that rests only upon this Whether this Action of covenant to which they were all intitled before the release might be transferred to the other Defendants only by the release or not And it was objected that it could not because it is a thing in Action and a thing vested which cannot be transferred over to the other two only by the release but that all ought to joyn in the Action of covenant notwithstanding Rolls contrary because that after this release it is now all one as if the bargain and sale had been made to those two only and now in an Action brought against them two they may plead a seoffment made to them only without naming of the third who released and so it is resolved in 33 H. 6. 4 5 6 Rep. fol. 79. a. Besides this covenant here is a real covenant and shall go to assignees as it is resolved in 5 Rep. Spencers Case and here is as violent relation as if the seoffment had been made to them two only It was objected by Justice Heath What if the other died It was answered perhaps it shall there survive because that it is an Act in Law and the Law may transfer that which the Act of the party cannot because that Fortior est dispositio legis quam hominis c. Booremans Case 235. BOoreman was a Barrister of one of the Temples and was expelled the house and his Chamber seised for non-payment of his Commons whereupon he by New digate prayed his writ of restitution and brought the writ in Court ready framed which was directed to the Benchers of the said Society but it was denied by the Court because there is none in the Inns of Court to whom the writ can be directed because it is no body corporate but only a voluntary Society and submission to Government and they were angry with him for it that he had waived the ancient and usual way of redress for any grievance in the Inns of Court which was by appealing to the Judges and would have him do so now Bambridge against VVhitton and his wife 236. IN an Ejâ—ctione firme upon Not Guilty pleaded a special Verdict was â—ound the case upon the special verdict this A Copyhold Tenant in fee doth surrender into the hands of two Tenants unto the use of I. W. immediately after his death and whether it be a good surrender or no was the question Harris that the surrender is void Estates of Copyholds ought to be directed by the rule of Law as is said in 4 Rep. 22. b. 9 Rep. 79. 4 Rep. 30. And as in a grant a grant to one in ventre sa mier is void so also in a will or devise and as it is resolved in Dyer 303. p. 50. so it hath been adjudged that the surrender to the use of an Infant in ventre sa mier is void and as at Common Law a Freehold cannot begin in futuro so neither a Copyhold for so the surrenderer should have a particular estate in him without a donor or lessor which by the rule of Law cannot be and he took a difference betwixt a Dâ—vise by Will a Grant executed in a devise it may be good but not in a grant executed and here he took a difference where the Grant is by one intire clause or sentence and where it is by several clauses 32 E. 1. taile 21. Dyer 272. p. 30. Com. 520. b. 3 Rep. 10. Dowties Case and 2 Rep. Doddingtons case For instance I will put only the Case in Dyer and the Comment A Termor grants his Term habendum after his death there the Habendum only is void and the grant good but if he grant his Term after his death there the whole grant is void because it is but one sentence So I say in our
Case because it is but one clause the whole grant is void Another difference is Where the distinct clause is repugnant and where not where it is repugnant there it is void and the grant good quia utile per inutile non vitiatur But in our Case as I have said before it is one intire sentence M. 13. or 23 Iac. in this Court Rot. 679. Sympson and Southwells Case the very Case with our Case There was a surrender of a Copy tenant to the use of an Infant in ventre sa mier after the death of the surrenderor and there it was resolved by all the Judges except Dodderidge that the surrender was void First because it was to the use of an Infant in ventre sa mier and Secondly because it was to begin in futuro which is contrary to the rule in Law and Copy-tenants as it was there said ought to be guided by the rules of Law but Dodderidge doubted of it and he agreed the Case at Common Law that a freehold could not commence in futuro but he doubted of a Copyhold and he put the Case of surrender to the use of a Will But he said that Judgment was afterwards given by Coke Chief Justice in the name of all the other Judges that the surrender was void and therefore Quod querens nihil capiat per billam wherefore he concluded that the surrender was void and prayed the Judgment of the Court. Langhams Case 237. LAngham a Citizen and Freeman of London was committed to Newgate by the Court of Aldermen upon which he prayed a Habeas corpus which was granted upon which return was mane First it is set forth by the return that London is an ancient City and Incorporate by the name of Mayor Comminalty and Citizens and that every Freeman of the City ought to be sworn and that a Court of Record had been held time out of mind c. before the Mayor and Aldermen And that there is a custom that if any Freeman be elected Alderman that he ought to take an Oath cujus tenor sequitur in haec verba viz. You shall well serve the King in such a Ward in the Office of Alderman of which you are elected and you shall well intreat the people to keep the Peace and the Laws and Priviledges within and without the City you shall well observe and duly you shall come to the Court of Orphans and Hustings if you be not hindred by Command of the King or any other lawful cause you shall give good counsel to the Mayor you shall not sell Bread Ale Wine or Fish by retail c. Then is set forth a custome that if any person be chosen Alderman he shall be called to the Court and the Oath tendred to him and if he refuse to take it then he shall be committed until he take the Oath Then is set forth that by the Statute of 7 R. 2. all the customs of the City of London are confirmed And lastly is set forth that the 11 of Ian. Langham being a freeman of London and having taken the Oath of a freeman was debito modo electus Alderman of Portsoken-ward and being habilis idoneus was called the first of February to the Court of Aldermen and the Oath tendred to him and that he refused to be sworn in contemptum Curiae contra confuetudines c. wherefore according to the custom aforesaid he was committed by the Court of Aldermen to Newgate until he should take the Oath haec fuit causa c. To this retorn many exceptions were taken Maynard the retorn is insufficient for matter and form for form it is insufficient for the debito modo electus without shewing by whom and how is too general then it is insufficient for the matter for he is imprisoned generally and not until he takes the Oath which utterly takes away the liberty of the subject for by this means he may be imprisoned for ever Besides here is no notice given to him that he was chosen Alderman but they elect him and then tender him the Oath without telling him that he was chosen Alderman and therefore the retorn not good for it ought to be certain to every intent Further the Oath is naught and unreasonable for he ought to forswear his Trade for if he sell Bread Ale Wine or Fish before now he must swear that he shall never sell them by retail after which is hard and unreasonable for perhaps he may be impoverished after and so necessitated to use his Trade or otherwise perish wherefore for these reasons he conceived that the Retorn was insufficient Glynn upon the same side that the Retorn is insufficient and he stood upon the same exceptions before and he conceived that notice ought to be given to him that he was chosen Alderman for this reason because of the penalty which he incurs which is imprisonment and he compared it to the Cases in the 5 Rep. 113. b. 8 Rep. 92. That the feoffâ—e of Land or a Bargain of a reversion by Deed indented and inrolled shall not take advantage of a condition for not payment of Rent reserved upon a lease upon a demand by them without notice given to the lessee for the penalty which insues of forfeiture of his Term. So in our Case he shall not incur the penalty of imprisonment for refusing to be sworn without notice given him that he 〈…〉 chosen Alderman He took another exception to the Oath because he is to swear that he shall observe all Laws and Customs of the said City generally which is not good for that which was lawful before pâ—radventure will not be lawful now for some Customs which were lawful in the time of R. 2. are now superstitious and therefore are not to be kept Further it is to keep all the customs within and without the City which is impossible to do Wherefore for these reasons he conceived the Retorn not to be good and prayed that the prisoner might be discharged Saint-Iohn Sollicitor of the same side The custom to imprison is not good Besides here the imprisonment is general so that he may be imprisoned for ever which is not good and the Statute confirms no customs but such as are good customs I agree that a custom for a Court of Record to fine and for want of payment to imprison may be good because the custom goes only to fine and not to imprisonment the Case of 1 H. 7. 6. of the custom of London for a Constable to enter a house and arrest a Priest and to imprison him for incontinencie comes not to our Case for that is for the keeping of the peace which concerns the Commonwealth as it is said in the Book and therefore may be good but it is not so in our Case A Corporation makes an ordinance and injoyns the observance of it under pain of imprisonment it hath been adjudged that the Ordinance is against the Statute of Magna Charta that Nullus
Statute of 12 E. 2. cap. 6. it is expresly ordained that no Officer of a City or Burrough should sell Wine or Victuals during his Office I confess this Statute is repealed by the Statute of 3 H. 8. but yet there is a Provision in that Statute that it extend not to London then the Law being that none of those things shall be sold by any Officer by retail during his Office the Oath which makes a man to abjure that which the Law forbids of necessity ought to be taken as lawful besides there is a Writ grounded upon the Statute of 12 E. 2. which you shall find in the Register 184. a. Fitz. N. B. 173. b. that the party grieved might have directed to the Justices of assises commanding them to send for the parties and to do right c. Wherefore I hold the Oath good and lawful notwithstanding this Objection For the point of notice I conceive it is not needful and if it be I ask who it is ought to give notice in this Case and I say that no person is tied to do it wherefore he ought to take notice of it at his peril For the debito modo electus I say that it is good being in a Retorn upon a Habeas corpus it is said that it was secundum consuetudinem which includes all things needful for the objection That it is averred in the retorn that he was idoneus habilis but that it is no part of the custom that it should be so for it is only in general Si aliquis liber homo and doth not say habilis idoneus and therefore the custom should not be good I answer that it is averred in the Retorn that it is so that he is elected and that is sufficient for us to ground our Judgment but further I conceive that the debito modo helps it wherefore upon the whole matter I conclude that the custom is good and the Retorn sufficient and therefore that the prisoner be remanded Pasch. 18º Car ' in the Common Pleas. Barrow against Wood in Debt 238. IN Debt upon an Obligation brought by Barrow against Wood the Defendant demanded Oyer of the condition ei legitur c. and the effect of it was this That the Defendant should not keep a Mercers-shop in the Town of Tewkesbury and if he did that then within three moneths he should pay forty pound to the Plaintiff upon which the Defendant did demur in Law and the point is only whether the condition be good or not Serjeant Evers the condition is good because it is no total restraint for it is a restraint here only to Tewkesbury and not to any other place wherefore I conceive the condition good I agree the Case in 11 Rep. 53. b. where a man binds himself not to use his Trade for two years or if a husbandman be bound he shall not plough his Land these are conditions against Law because where the restraint is total although it be temporal there the condition is not good but the condition is not totally restrictive in our Case and he compared this Case to the Case in 7 H. 6. 43. feoffee with warranty Proviso that the feoffee shall not vouch it is a good condition because not totally restrictive for although that the feoffee cannot vouch yet he may rebut so in this Case although the Obligor cannot use his Trade in Tewkesbury yet he may use it in any other place And the Condition is not against Law for if it were such a condition then I agree it would be naught but yet the Bond would stand good for this is not a condition to do an act which is Malum in se for there the condition is naught the Bond also as 2 E. 4. 2. b. by Cooke Instit. 206. b. But although a man cannot make a feoffmâ—â—t upon condition that the feoffee shall not alien yet the feoffee may bind himself that he will not alien and the Bond is good and so I say in our Case and if the condition in this Case should not be good it would be very inconvenient for it is a usual thing in a Town in the Country for a man to buy the shop of another man all his Wares in it and if the same being a small town where one of that profession would serve for the whole Town he who bought the shop and wares should not have the power to restrain him the same being the ground reason of the contract from using of that trade in that plaâ—e it would be very inconvenient wherefore he conceived that the condition was good and prayed Judgment for the Plaintiff Serjeant Clarke for the Defendant that the condition is not good for it is against the Law and void because it takes away the livelihood of a man that is one of the reasons against Monopolies 11 Rep. 86 87. And that I conceive is grounded upon the Law of God for in Deut. chap. 24. ver 6. it is said that you shall not take in pledge the nether and upper milstone for that is his life So that by the Law of God the restraining of any man from his Trade which is his livelihood is not lawful And surely our Law ought not to be against the Law of God and that is the reason as I conceive wherefore by our Law the Utensils of a mans Profession cannot be distreined because by that means the means of his livelihood should be taken away And 2 H. 5. fol. 5. b. by Hull the condition is against Law and yet the case there is the very Case with our case for there a man was bound that he should not use his Art in D. for two years whereupon Hull swore by God that if the Obligee were present he should go to prison till he had paid a fine to the King because the Bond is against Law and therewith agrees the 11 Rep. 53. b. 7 E. 3. 65. A Farmer covenants not to sow his land the covenant is void so as I conceive that although the condition be restrictive only to one place or for a time yet because it takes away the livelihood of a man for the time the condition is against Law and void and he cited a Case in the point against Clegat and Batcheller Mich. 44 Eliz. in this Court Rot. 3715. where the condition of a Bond was That he should not use his Trade in such a place and it was adjudged that the condition was against Law and therefore the Bond void and for these reasons he prayed that Judgment might be entred that the Plaintiff nihil capiat per billam Justice Reeve did produce some Presidents in the point and he said that the Law as it had been adjudged stood upon this difference betwixt a contract or Assumpfit and an Obligation A man may contract or promise that he will not use his Trade but he cannot bind himself in a Bond not to do it for if he
well lie Bramston Chief Justice for the Avowant that 〈◊〉 may well distrâ—in and cannot have a Scire facias but if he may have a Scire facias yet he may distrein without it There is no authority in the Law directly in the point in this Case I agree that if there be any prejudice to the conusee there it is reason to have a Scirâ— facias It was objected that it is a constant course to have a Scire facias in this Case But I believe you will never find a Scire facias brought by the Grantee of a rent or other profit apprender Besides the best way to judge this Case is to examine what the Scire facias is which ought to be brought and what the Judgment is which is given upon it whether he may recover the thing in demand or not vid. 32 E. 3. Fitz. Scire facias 101. 47 E. 3. 11. which are brought to have account and to shew cause wherefore he should not have the land see Fitz. Scire facias 43. v. The old Entries the Judgment which is given thereupon and the demand there is quod tenement praed redeliberatur and may the grantee in this Case have the land and thing in demand certainly not and that gives sufficient answer to the Cases objected by my Brother Heath where the second conusee shall have a Scire facias against the first Besides you shall never find in all our Books that a man shall have an attaint or a writ of error but he who may be restored to the thing lost by the judgment or verdict 2 R. 3. 21 Dyer 89. 9 Rep. the Lord Sanchars Case so in debt and erroneous Judgment upon it wherewith agreeth Doctor Druries Case 8 Rep. 12. 18 E. 3. 24. the feoffee shall have a Writ of Error because he shall have the land and see 32 E. 3. Scire facias 101. And the grantee shall not have a Writ of Error in this Case upon erroneous Judgment and for the same reason he shall not have a Scire facias and the grantee cannot have a Scire facias for want of privity and therefore I conclude that he cannot have a Scire facias for if he might certainly it would have been brought before this time either for this cause or for some other profit apprender It was objected that he shall not be in better condition than the conusor that is regularly true as to the right but he may have another remedy It was objected that the reason why that a Statute without a Scire fatias shall not be defeated is because he is in by Record and therefore shall not be defeated without Record but that is not the true reason but the reason is because the conusee ought to have costs and damages besides his debt as is Fullwoods Case 4 Rep and 15 H. 7. 16. is that the Chancellor shall judge of the costs and damages But 47 E. 3. 10. 46 E 3. Scire facias 132. by all the Judges that they lie in averment But here an inconvenience was objected that great arrerages should be put upon the conusee for a little mistaking to that he said that of a small mistake the Court shall judge and it shall not hurt him but if he hold over being doubly satisfied it is reason that he pay the arâ—erages and he put this Case A man acknowledgeth a Statute and afterwards makes a lease to begin at a day to come the lâ—ssee shall have a Scire facias for where remedy doth fail the Law will help him for which cause he concluded and gave Judgment for the avowant Trin. 18 Car ' in the Kings Bench. Paulin against Forde 248. AN Action upon the Case brought for words the words were these Thou art a thievish Rogue and hast stolen my wood innuendo lignum c. Gardiner the words are not actionable because it shall be intended wood standing or growing and not wood cut down and so he said it had been adjudged so if a man says of another that he hath stollen his Corn or Apples the words are not actionable because they shall be intended growing Bramston Chief Justice that the words are actionable because that wood cannot otherwise be meant but of wood cut down because it is Arbor dum crescit lignum dum crescere nescit for which cause he conceived that the words were actionable and it was adjorned Chambers and his wife against Ryley 249. ACtion upon the Case for words the words were these Chambers his wife is a Bawd and keeps a Bawdy-house for which words the Action was brought and the conclusion of the Plea is ad damnum ipsorum Wright the words are not actionable because it is not the wife that keeps the house but the husband and therefore the speaking the words of the wife cannot be any damage to him but admit the words were actionable the husband only ought to bring the Action because the speaking of the words is only to his damage Bramston Chief Justice the wife only is to be indicted for the keeping of a Bawdy-house and therefore she only is damnified by the words and the husband ought to joyn in the Action but that is only for conformity and the conclusion of the Plea is good for the damage of the wife is the damage of the husband and therefore ad damnum ipsorum good And here it was agreed that to say that a woman is a Bawd will not bear an Action but to say she keeps a Bawdy-house will Porter who was for the Action cited a Case which was thus One said of the wife of another that she had bewitched all his beasts and she and her husband joyned in an Action and upon debate it was adjudged good and there the conclusion also of the plea was ad damnum ipsorum Rickebies Case 250. RIckebie was indicted in Durham for Murder and afterwards the Indictment was removed into the Kings Bench where he pleaded his Pardon which Pardon had these words in it viz Homicidium feloniam felonicam interfectionem necem c. seu quocunque alio modo ad mortem devenerit And note there was a Non obstante in the Pardon of any Statute made to the contrary and whether these words in the Pardon were sufficient to pardon Murder or not was the Question Hales for the Prisoner said that the Pardon was sufficient to pardon Murder and in his argument first he considered whether Murder were pardonable by the King at the Common Law or not and he argued that it was the King is interessed in the suit and by the same reason he may pardon it It is true that it is Malum in se and therefore will not admit of dispensation nor can an appeal of Murder which is the suit of the Subject be discharged by the King but the King may pardon Murder although he cannot dispense with it see Bracton lib. 3. cap. 14. And the Law of the Jâ—ws differs from our Law
the Kings Bench an Ejectione firme was brought for the Gate-house of Westminster and the Jury found the Defendant guilty for so much as is between such a room and such a room and adjudged good and here it is as uncertain as in our case Mich. 19 Iacobi Smalls case in Hobarts Rep. The Jury in an Ejectione firme found the Defendant guilty of a third part and good Mallet Serjeant that the Verdict is uncertain and therefore not good And it is not sufficient that the certainty appear to the Jury for it behooveth that certa res deducatur in judicium Institut 227. a. 3. E. 3. 23. b. 18 E. 3. 49. 40 E. 3. 5 Rep. Playtors case Secondly here is no certainty for the Sheriff to give execution for so much in length or in breadth that is quod stat super ripam doth not appear And thirdly thereupon great inconvenience will arise that no attaint will lie upon such uncertain Verdict so as the defendant shall be without remedy and the whole Court except Justice Crawley Banks Reeve and Foster did resolve that the Verdict was insufficient for the incertainty and all agreed That there is great difference betwixt Trespass and Ejectione firme for such Verdict in Trespass may be good for there damages are only to be recovered but in an Ejectione firme the thing it self And their reason in this Case was That although the certainty may appear to the Jury yet that is not enough for they ought to give judgment oportet quod certa res deducatur in judicium And they agreed that if they had found him guilty of a Room it had been good and so the Cases on the Acre of Land and of the third part of a Mannor is good for those are sufficiently certain for of them the Law takes notice The Opinion of Crawley wherefore the verdict should be good was because the demand here was certain although the Jury found it in tanto c. And where there may be certain description for the Jury it is good enough and the rather because the Verdict is the finding of lay gents and he compared it to the case of the Gate-house aforesaid but he agreed that if the Writ of Ejectione firme had been brought de tanto unius messuagii c. quod stat super ripam that it would not have been good but the Verdict is good for the reason aforesaid But Justice Reeve said that that which is naught in the demand is naught in the Verdict and therefore naught in the judgment and therefore the Court would not give judgment and therefore a Venire facias de novo was prayed and granted by the Court. 169. Couch libelled against Toll ex officio in the Ecclesiastical Court for Incontinencie without a Citation or presentment and for that the Defendant was excommunicated and Gotbold prayed a Prohibition which was denied by Crawley and Reeve Justices the others being absent and it was said by Reeve That where they proceed ox officio a Citation is not needful but put case it were yet they said that no Prohibition is to be granted as this case is because that where the Ecclesiastical Court hath Jurisdiction although they proceed erroneously yet no Prohibition lieth but the remedy is by way of Appeal and there he shall recover good costs and it was said by Crawley That if the party be retorned cited and he is not cited That an Action upon the case lieth 170. A woman libelled in the Arches against another for calling of her Iade and a Prohibition was prayed and granted because the words were not defamatory and do not appertain unto them And Reeve said that for Whore or Bawd no Prohibition would lie but they doubted of Quean 171. Bacon Serjeant prayed a Prohibition to the Court of Requests upon this suggestion That one Executor sued another to accompt there and an Executor at the Common Law before the Statute of West 2. cap. 11. could not have an accompt for cause of privity and now by that Statute they may have an accompt but the same ought to be by Writ and therefore no accompt lieth in the Court of Requests Secondly they have given damages where no damages ought to be given in an Accompt And lastly they have sequestred other Lands which is against the Law and for these reasons he prayed a Prohibition Whitfield Serjeant contrary 1. It is clear that an accompt by Bill lieth for an Attorney in this Court and so in the Kings Bench and Exchequer and as to damages it is clear that in an accompt a man shall recovâ—â— damages upon the second judgment but as to the sequestâ—â—ion he could not say any thing but further he said That it was not an accompt but only a Bill of discovery against Trustees who went about to defeat an Infant and upon the reading of the Bill in Court it appeared that the suit was meerly for the breach of a trust and for a confederacie and combination which is meerly equitable Wherefore a Prohibition was denied because it was no accompt but as to the Decree for sequestring other Lands the Prohibition was granted Trin. 17º Car ' in the Kings Bench. 172. EAste brought an Action upon the Case upon an Assumpsit against Farmer because that where the Plaintiff had sold to the Defendant so much wood the Defendant in consideration thereof did assume and promise to pay so much money to the Plaintiff and to carâ—â— away the wood before such a day the Defendant pleaded thâ— he paid the money at the day aforesaid but as to the carrying of it away before the day he pleaded non assumpsit and the Jury found that he did not pay the money at the day but as to the other they found that he did assume and promise as aforesaid and it was moved in Arrest of judgment that the finding of the Jury was naught for being but one Assumpsit and the same being an intire thing it could not be apportioned and therefore they ought to find the intire Assumpsit for the Plaintiff or all against him And the Court agreed all that and awarded that there should be a Repleader and the Chief Justice Bramston said That for the reason given before the Defendants plea was not good and therefore the Plaintiff might have demurred upon it which he hath not done and therefore they agreed that the Verdict was naught for the reason aforesaid 173. Williams was indicted at Bristow upon the Statute of 1 Iac. cap. 11. for having two wives and upon not Guilty pleaded the Jury found a special Verdict which was thus That the said Williamt married one wiâ—e and was afterwards divorced from her causa adulterii and afterwards married the other and if that were within the Proviso of that Statute which provides for those who are divorced was the Question And it was resolved without argument by Bramston Chief Justice and Heath Justice the other being absent That it is within the Proviso for the