might be given in Evidence tho' upon Non est factum it could not The King versus Alway and Dixon ERror to Reverse a Judgment upon an Indictment because the Award of the Venire was Entred Praeceptum fuit Vicecomiti c. which is more like an Hystory of the Record than the Record it self for it ought to be Praeceptum est and so are the Presidents And for this Cause it was Reversed Waldron versus Ruscarit Hill ult Rot. 225. In an Ejectment a Special Verdict was found That one levied a Fine of all his Lands in Saint Inderion in Cornwal and that he had Lands in Portgwyn and that the Constables of Saint Inderion exercised their Authority in Portgwyn and that Porgwyn had a Tythingman And whether this Fine conveyed the Lands in Portgwyn was left to the Iudgment of the Court and Resolved that it did A Parish may contain ten Vills and if a Fine be levied of the Lands in the Parish this carries whatsoever is in any of those Vills So where there are divers Vills if the Constablewick of the one goes over all the rest that is the Superiour or Mother Vill and the Land which is in the other shall pass per nomen of all the Lands in that And tho' it be found that Portgwyn had a Tythingman Decenarius which prima facie is the same with a Constable and differed little in the Execution of that Office concerning Keeping the Peace Yet Hale said He was not the same Officer and 't is found that the Constables of St. Inderion have a superintendency over Portgwyn and therefore 't is but as an Hamlet of St. Inderion But if found that they had distinct Constables and could not interfere in their Authority it would be otherwise Owen 60. Note It was said by the Court That if there be a Conviction of a Forcible Entry upon the View of the Justices of the Peace no Writ of Error lyes upon it but it may be Examined upon a Certiorari The King versus Green al' THey were Indicted for refusing to take the Oath of Allegigiance contained in the Statute of 3 Jac. tendred to them at the Sessions of the Peace One appeared and the Entry was Nihil decit c. ideo remansit Dom ' Rex versus eundem indenfensus And the other were Convicted and Judgment given quod forisfaciant omnia bona catalla terr' tenementa Domino Regi extra protectionem Dom ' Regis ponantur committuntur quilibet eorum committitur Gaolae They brought Error And First It was moved that the Indictment was for refusing the Oath contained in the Statute of 3 Jac. in his Anglicanis Verbis Viz. I do truly and sincerely acknowledge c. that our Sovereign Lord King Charles the Second is Rightful King of this Realm c. Whereas the Statute is King James and the words of the Statute are That the Justices of the Peace shall demand of such persons there mentioned to take the Oath hereafter following So that 't is tyed up to that Oath in terminis and then it cannot be Administred after the Death of King James And the diversity of the Penning of this Act of 3 Jac. and the Act of 7 Jac. was observed in the last the words are Shall take and receive an Oath according to the Tenour and Effect of the Oath contained in 3 Jac which is as much as to say the same Oath in substance So the Act of 1 Eliz. cap. 1. is That the Oath shall be taken according to the Tenour and Effect hereafter following Therefore it was Objected that the Indictment might have been upon the Act of 7 Jac. but not upon 3 Jac. which it was conceived was tyed up to the Person of King James and therefore determined by his Death As if a Lease be made durante bene placito Regis nunc it doth end by the Dimise of that King that made it Otherwise if it be durante bene placito Regis Moor pl. 311. And though these Statutes for the Oath of Allegiance be General Laws and need not have been recited yet when an Indictment is grounded upon an Act therein mentioned which will not maintain it it shall not be made good upon any other General Act. Secondly Another Matter insisted upon for Error was in the Entry of the Nihil dicit which was Ideo remansit Dom ' Rex versus eundem indefensus whereas it ought to have been remanet and so the Record it self must express But as it is 't is but an History of the Record and therefore upon Indictments where the Award of the Venire is Praeceptum fuit 't is not good but should he Praeceptum est Thirdly An Exception was taken to the Venire which Commands the Sheriff to Return 12 probos legales homines qui nec Dom ' Regem nec aliquam partem aliqua affinitate attingunt whereas in the King's Cases his Kindred may be Returned and therein no Challenge to the Favour neither ought the Sheriff to be restrained from Returning them Fourthly The Judgment is Committuntur quilibet eorum committitur which is an Execution of the Judgment that should have been given and not the Judgment it self which ought to have been Committantur c. as 't is extra protectionem Domini Regis ponantur and not ponuntur Fifthly It was alledged that the Statute was mis-recited in two places 1. For See of Rome it is written Sea of Rome so instead of sedes Romana it is mare Romanum which makes it to be no Sense 2. The Words of the Statute are I do declare in my Conscience before God whereas the Indictment is I do declare c. in Conscience and leaves out my It was also Objected That the words of the Act being That such as refuse the Oath shall incur the danger and penalty of Praemunire mentioned in the Statute of 16 R. 2. which Enacts That Process shall be made against the Offenders therein mentioned by Praemunire facias in manner as 't is Ordained in other Statutes And it appears that no such Process was made upon this Indictment wherefore the Statute is not observed Curia The first Error was disallowed by all the Court and held clearly that the Judgment was well grounded upon the Statute of 3 Jac. For the naming of the King is but an instance of the thing as it stands at present and it might as well be objected that the Oath in the Statute is I A.B. do swear c. And tho' some Statutes say according to the Tenour and Effect and this is the Oath hereafter following it was held to be all one for according to the Tenour and Effect and according to the words are all one as where a Certiorari is to certifie Tenorem Recordi The second was held to be Error and that the Iudgment given upon the nihil dicit must be reversed for there were several Iudgments given viz. One upon that and another given
Berwick is part of Scotland and bound by our Acts of Parliament because Conquered in Edward the Fourth's time But the course is to name it expresly because 't is out of the Realm and not like to Wales where the Trials in such Cases shall be out of the prochein County 19 Hen. 6.12 for that is a Member of England Vid. 7 Co. Calvin's Case But two Presidents being shewn where the Trials were as it is here and one of them affirmed in a Writ of Error also the Case in Rolls tit Trial 597. A Writ of Error was brought to Reverse a Judgment given in Ireland and an Error in Fact was assigned and tryed in a County next to Ireland The Court Ruled the Venire to be well awarded Twisden said The Reason why an Ejectment would not lye of Lands in Jamaica or any of the Kings foreign Territories was Because the Courts here could not command them to do Execution there for they have no Sheriffs This Case having remained two or three Terms since the Postea was Returned and no Continuances Entred one of the Plaintiffs died and it was doubted whether Judgment could be now Entred And the Secondary said That they did Enter up Judgments two Terms after the Day in Bank as at the Day in Bank without any Continuances And of this Matter the Court would be Advised Postea Anonymus IF one upon Complaint to two Justices 1 Cro. Prigeon's Case be Ordered to keep a Bastard Child and this upon an Appeal to the Sessions is revoked that Person is absolutely discharged and unless a Father can be found the Court said the Justices of Peace must keep it themselves The Earl of Peterborough versus Sir John Mordant IN an Action upon the Statute de Scandalis Magnatum for speaking these Words of the Plaintiff I do not know but my Lord of Peterborough sent Gybbs to take my Purse After Judgment by Default and a Writ of Enquiry of Damages returned it was moved in Arrest of Judgment that no Action would lye for these Words First He doth not positively charge him with it Again The Words do not import a Felonious taking Hob. 326. Mason's Case I charge him with Felony for taking Money out of the Pocket of H. Stacie adjudged not Actionable And in 1 Cro. 312. Thou didst set upon me and take my Purse go before a Justice and I will charge you with Felony It was held there that no Action would lye But the Court gave Iudgment for the Plaintiff As to the first it was held as much as a direct Affirmation for otherwise one might slander another and by such a slight Evasion escape an Action Twisden said He knew these Words adjudged Actionable He hides himself for Debt and for ought I know is a Bankrupt And for the Words the Court said Three was difference between an Action grounded upon the Statute de Scandalis Magnatum and a Common Action of Slander The Chief Justice said The Words in the one case shall be taken in mitiori sensu and in the other in the worst sense against the Speaker that the Honour of such Great Persons may be preserved More 55. The Earl of Leicester had Judgment for these words My Lord of Leicester is a Cruel Man an Oppressor and an Enemy to Reformation Leon. 33. The Lord Abergavenny sued for these words My Lord Abergavenny sent for us and put some of us into the Stocks some to the Coal-house and some to the Prison in his House called Little Ease And Recovered Vide Crompton's Jurisdiction of Courts 13. and Leonard 336. Anonymus AN Indictment was Compertum fuit per Sacramentum duodecim proborum legalium hominum c. and quashed because it was not jurat ' onerat ' And the Clerk of the Crown-Office Informed the Court that that was always the Course also it must be Adtunc ibidem jurat ' where the Caption is recited to be taken Williams versus Gwyn ERror to Reverse a Judgment given in Dower in the Grand Sessions in Wales It appeared by the Record that the Tenant appeared upon the Summons Returned and Day was given over adtunc venit per Attornatum nihil dicit in barram Whereupon Consideratum est quod tertia pars terr' tenemen ' capiatur in man ' Domini Regis and Day was given ad audiend ' Judicium at which Day Iudgment was given quod recuperet It was Assigned for Error that the Court here had awarded a Petit Cape and yet the Defendant appeared whereas they should have given Iudgment upon the Nient dedire for a Petit Cape is always upon default after appearance and only to answer the Default The Grand Cape is before appearance to answer the Default and the Demand Vet. N. B. 97. So it was said the Court had erred in Judgment and tho' it were in advantage of the Tenant by the delay yet not being by his Prier as an Essoign granted where none ought to be is not Error but the act of the Court as if they should Enter a Misericordia for a Capiatur it were Erroneous But the Court answered That the reason of that was Because it is parcel of the Judgment and the King should lose his Fine But this was only the awarding of Process more than should be and in advantage of the Tenant wherefore they resolved that they could not Reverse it for Error And Twisden said Admitting it were Erroneous they might then give Iudgment in this Court Anonymus A Prohibition was prayed to the Arches for Libelling against one there for calling Whore and Baud because they were but words of Heat also the Party lived in the Diocess of London so against 23 H. 8. to Cite him there But the Court would not grant it for though formerly there hath been divers Opinions touching these words yet Twisden said ever since 8 Car. the Law hath been taken that they may punish such words pro reformatione morum And for the other it appeared Sentence was given and that it was too late to pray a Prohibition when it appears they have Iurisdiction of the Cause as the Superiour Court and he that would have the benefit of the Statute against citing out of the Diocess must come before Sentence 1 Cro. Anonymus FInch Solicitor moved for a Prohibition to the Ecclesiastical Court to stay a Suit for Tythes of Hopps commenced there by the Vicar upon a Suggestion that they had paid for all Tythe Hopps so much an Acre to the Parson time out of mind But it was denied for there could be no such Composition time out of mind Hopps not being known in England until Queen Elizabeths time for then they were first brought out of Holland though Beer is mentioned in a Statute in Henry the Fourth's time But it was said by the Court That perhaps the Vicaridge was Endowed time out of mind of the small Tythes of which nature Hopps were Then the prescription of paying of Modus to
went out upon such particular direction and recommendation 'T is some mitigation that they had such advice of Counsel otherwise I should not stick to fine them 100 l apiece We are bound to take care of the support of the Government I agree the Fines Keeling Chief Justice It is provided by 23 H. 8. cap. 5. that the Laws Acts c. to be made by the Commissioners of Sewers should stand good and effectual c. no longer than the Commission endured except they were Engrossed in Parchment and certified under their Seals into the Kings Court of Chancery and then the Kings Royal Assent to be had to the same c. But that was altered by this of 13 Eliz. whereby it is Enacted That their Laws c. should stand and continue in force without any such Certificate to be made thereof into the Chancery and then a little after in this Statute follows the Clause which hath been read and that refers wholly to Certificates or Returns to be made into the Chancery for the purpose aforementioned 'T is plain the Clause refers not to this Court for it speaks of returning their Comissions now their Commissions were never returnable into this Court this Court cannot be ousted of its Jurisdiction without special words here is the last Appeal the King himself sits here and that in person if the pleases and its Predecessors have so done and the King ought to have an account of what is done below in inferiour Jurisdictions 'T is for the avoiding of oppressions and other mischiefs To deny and oppose this and to set up uncontrolable Jurisdictions below tends manifestly to a Commonwealth and we ought and we shall take care that there be no such thing in ours days I know there is a great clamour so soon as an inferiour Jurisdiction is touched and t is thought we deal hardly with them But unless we will suffer this Court to be dissolved and the Prerogative of the King to be encroached upon we must oppose our selves to these Proceedings I have a great respect for these persons the Commissioners but 't is but usque ad aras When the Jurisdiction of the Crown the Justice of the Kingdom and the Duty of my place is concerned I ought not to spare my best Friends Some Presidents have been cited in this Case and many more might there are two memorable Records cited 1 Cro. concerning persons which contemned the Kings Writ and their Penalties I agree the Fines and hereby we do not go so high as our Predessours have gone Hundreds of years ago Nota This Proceeding and Sentence of the Court was upon Confession of the Commissioners the Court forthwith making an Entry and Record of their Confession In an Assize only where the Writ is Returnable into this Court it is apud Westmonaster ' but in all other cases where Writs are Returnable out of Chancery into this Court they are Returnable Ubicunque c. The King versus Jane D SHe was Indicted for Stealing of several things and pleading Not Guilty and a Jury sworn to try her the Witnesses not appearing were suspected to be tampered with by the Prisoner and the Jury were discharged and the Trial put off Vid. 1 Inst 227. b. Wise's Case AN Order of the Justices of the Peace for the maintenance of a Poor Woman was Confirmed tho' it appeared she was able of Body to work But the Justices of the Peace are Iudges of that Cousin's Case ERror to Reverse a Fine for Infancy Now 't was moved that the party being in Court she might be inspected and the Inspection Recorded and there was produced and read a Copy of the Register Book sworn to be a true one and several Affidavits of her Age. Curia Let the Inspection be now Recorded the Issue of her Infancy may be tryed at any time hereafter tho' she comes of Age. Nota A Prisoner in the Kings-Bench that lyes in the Common Side pays no Fees for his Lodging Anonymus IT was said by Twisden That if two submit to an Award this contains not a Reciprocal Promise to perform but there must be an Express Promise to ground an Action upon Nota A Fine which was set two or three Terms since was this Term set aside because of some surreptitious Practice and Misinformation to the Judge Auberie versus James ASsault Battery and Wounding The Defendant Iustified for that he being Master of a Ship commanded the Plaintiff to do some Service in the Ship which he refusing to do he moderate castigavit the Plaintiff prout ei bene licuit The Plaintiff maintains his Declaration absque hoc quod moderate castigavit and Issue was taken thereupon Negativum infinitum After Verdict for the Plaintiff it was moved in Arrest of Judgment that the Issue was not well joyned for non moderate castigavit doth not necessarily imply that he did Beat him at all and so no direct Traverse to the Defendants Iustification which immoderate castigavit would have been But De injuria sua propria absque aliqua tali causa would have been the most formal Replication But the Justices held that it would serve as it was after a Verdict tho' the Statute at Oxford 16 Car. 2. the last and most aiding Act of Jeofails be * Which was a mistake expired and that de injuria sua propria not adding absque aliqua tali causa hath been held good after a Verdict Green versus Cubit ERror to Reverse a Judgment given in the Court at Norwich in Debt upon a Bond where the Plaintiff declared that the Defendant per scriptum suum Obligatorium at a certain place there became bound c. The Defendant pleaded that he was in Prison scriptum praedictum was obtained by Duress which was found against the Defendant and Judgment given accordingly The Errors assigned were first Because he declares of a Writing Obligatory and both not say sigillo Defendentis sigillat ' 3 Cro. 571. Declaration in Covenant was held Insufficient for the same cause Secondly There is no place where the Defendant alledgeth himself to be in Prison and being in an Inferiour Court it shall not have any aid of Intendment But the Court Over-ruled the first because the Plea of the Defendant confesses the Deed and the second because the Imprisonment must of necessity refer to the place where the Plaintiff declares the Bond to be made For the Defendant pleaded that he was then in Prison wherefore they affirmed the Judgment 3 Cro. 55. 2 Cro. 420. 3 Cro. 737. 19 H. 6. 15. 19. Baldway and Ouston DEbt upon a Bond the Condition was That the Defendant should pay such Costs as should be stated by two Arbitrators by them chosen He pleaded that none were Stated The Plaintiff Replied That the Defendant did not bring in his Bill To which it was Demurred For tho' if the Defendant were the cause that no Award was made it was as much a forfeiture of his Bond as not to perform
of the Proceeding after delivery of the Writ but the place only expressed where the Writ was delivered they thereupon overruled this Specious Exception Post Anonymus ONe A. B. was indicted of High Treason in Conspiring the death of the King and was brought to his Tryal at the Bar this Term and one D. being produced a Witness against him the said A. B. excepted against him for that the said D. had been Outlawed of Felony and Burned in the Hand and produced the Record The Witness to clear himself thereof produced the Kings Pardon whereby he was pardoned of the said Crimes Outlawry c. The Prisoner still objected that the Pardon did not restore him to his Credit and that notwithstanding he was no legal and competent Witness and prayed that he might have Counsel assigned him to argue the Point which was granted And the Court having heard his Counsel and conceived some doubt in the Matter they desired Mr. Justice Raymond to consult with the Judges of the Common Pleas to which Court Raymond immediately went and at his return reported to this Court the Opinion of the said Judges to be that he might be Sworn But if a Man convicted of Perjury were afterwards pardoned yet that would not enable him to be a Witness because it seemed to be an injury to the People to make them subject to the Testimony of such an one Vid. Hob. 81. a Pardon takes away poenam reatum so D. was Sworn Colepeppers's Case HE was indicted of High Treason for Raising Rebellion in Carolina one of the Kings Foreign Plantations in America whereupon he was this Term Tried at the Bar and acquitted Note By 35 H. 8. cap. 2. Foreign Treasons may be either tried by Special Commission or in the Kings Bench by a Jury of the County where that Court Sits Vid. Co. 1 Inst 261. b. Anonymus UPon a Tryal at Nisi prius at Guildhal before my Lord Chief Justice North in Trover and Conversion against an Executor de son tort ' The question came to be Whether the Goods having been taken in Execution upon a Judgment obtained against the Defendant by a Creditor of the Deceased should discharge him against the Plaintiff who brought this Action as Administrator And the Opinion of the Chief Justice was that this Execution was a good Discharge against another Creditor that should Sue him to whom he might plead Riens inter ses mains but it was no Discharge against an Administrator for Men must not be encouraged to meddle with a personsal Estate without Right but to prevent this mischief where the Party dies Intestate and there is contest about the Administration a Man may procure of the Ordinary Letters ad Colligendum Termino Sancti Michaelis Anno 32 Car. II. In Banco Regis Anonymus THe Statute of 43 Eliz. cap. 2. that enables Justices of Peace where a Parish is unable to provide for their Poor to Tax the neighbouring Parish the words being any other of any other Parish It was resolved that the Justices might impose the charge upon any of the Inhabitants of the neighbouring Parish and were not obliged to put a general Tax upon the whole Parish Anger versus Brower A Prohibition the Plaintiff declared upon an Attachment that at such a day and place he delivered the Writ to the Defendant and that he had prosecuted the Suit in the Court Christian since and upon Judgment by Nihil dicit and upon a Writ of Enquiry 100 l Damages were found and Judgment given and a Writ of Error brought The Error assigned was that the Plaintiff had laid no Venue where the Suing was since the Writ delivered which was the cause of Damage and not the delivery of the Writ so that place would not serve On the other side it was said that the Presidents were generally this way But to that the Court said that where those Presidents were there was no further Proceeding after Judgment as there seldom was when there was Judgment by Nihil dicit but here they reversed it for this Error Ante. The Case of the City of London concerning the Duty of Water Bailage THe Mayor and Commonalty of London brought an Indebitat ' Assumpsit against A. B. for 5 l for so much due to them for divers Tons of Wine brought from beyond the Seas to the Port of London at Four pence per Ton. Vpon Non Assumpsit pleaded and Trial at Bar divers Freemen of London were offered as Witnesses for the Plaintiff But the Counsel of the other side excepted to them for that they were Parties the Commonalty of London comprehending all the Freemen and likewise Interested On the other Side it was said that their Interest was in no sort to be considered it being so very small and remote a small Legatee hath been sworn to prove a Will In an Indictment against the County for not Repairing of a Bridge one of the County may be a Witness and this Justice Dolben said he had known in the Case of Peterburgh Bridge In a Robbery sur Statute de Winton the Plaintiff shall be Sworn a Witness and that for Necessity But it was Replied that there was no Necessity for they might have other Witnesses besides Freemen tho' perhaps with difficulty In an Action against the Hundred upon the Statute of Winton an Hundred or cannot be a Witness Scroggs Chief Justice Dolben and Raymond were of Opinion that they were Witnesses Jones contra And a Bill of Exceptions was tendred by the Counsel for the Defendant which the Court profered to Seal and to allow three or four days time to Draw it up But afterwards the Plaintiffs Counsel offered other Witnesses and set by their Citizens but the Verdict went for the Defendant Note It was said that the Lord Mayor could not Release the Action but under the Common Seal and that for a Duty or Charge upon a Corporation every particular Member thereof is not liable but Process ought to go in their Publick Capacity Note A Sheriff was ordered to attend the Court for demanding an excessive Fee for the execution of an Hab ' fac ' possess the Court saying there was none due Anonymus A Prohibition was granted to the Consistory Court of the Bishop of London for Citing one for calling of her Whore because such words by the Custom of London are punishable in the Courts of Law there Anonymus IF the Plaintiff dies after the Term began tho' before Judgment Entred yet Judgment may be Entred because every Judgment relates to the first Day of the Term. Anonymus A Motion was made to quash an Inquisition taken before the Coroners super visum corporis of one that killed himself which found that he was Felo de se But the Court were Informed that the party was Non compos mentis and that there had been an undue Practice by the Coroner of both which great Proof was made and upon that it was quashed Note The Court said that if the Body
notice of any Title found for a Stranger Wherefore they held notwithstanding these Omissions in the Verdict that Judgment might be given for the Plaintiff And Tyrrell was of Opinion in the Principal Matter for the Plaintiff In his Argument he considered of divers kinds of Allegiance natural and acquired which was either local or legal As when a man is Sworn in the Leet Denizated by the Kings Letters Patents obtained by Conquest or Naturalized which Naturalization must be by Act of Parliament and cannot be limited 2 Cro. 539. 1 Inst 129. who is to all purposes a Natural born Subject An Indictment of Treason against such an one is contra naturalem ligeantiam Neither can it be confined to Place for 't is due to the Natural and not to the Politick person of the King Mo. 790. And the Plea of infra ligeantiam Regni sui Angliae was rejected in Calvin's Case in Co. and said to be never heard of before Idem est nasci idem naturalizari And he Argued That in regard Ireland hath the like Court of Parliament that England hath it hath also the same Power and conceived that the English Laws were introduced by Parliament in King John's time For in the Charter 11 H. 3. it is recited that Johannes quondam Rex Angliae duxit secum in Hiberniam Viros discretos legis peritos quorum Communi Concilio ad instantiam Hibernentium statuit c. ex diuturnitate temporis omnia praesumuntur solenniter esse acta In the 4 Inst 357. it appears that Parliaments were holden there before 17 E. 3. 2 R. 3. 12. Hibernia habet Parliamentum facium Leges And in 4 Inst 452. it is said they may Naturalize an Alien and if they do so he is all one with an Irish man born As one that purchaseth his Freedom in a Corporation hath all Immunities as amply as he that is born a Member of it Neither doth it follow from hence that an Act of Parliament in Ireland could bind England it is the Law of England Cooperating with the Act that gives the Naturalization an effect here The Act is but remotio Impedimenti As if one were Attainted by the Parliament there he should forfeit his Lands here and if that Act were Repealed he should be restored to them again yet neither Act were oligative to England The Act of Ireland is causa remota or sine qua non the Law of England is causa proxima and this of Naturalization was one of the Wonders of the Powers and Priviledges of Parliament As Legitimation of a Bastard and the like The other three Justices were of a contrary Opinion and Argued to this effect that Ireland was a Conquered Kingdom the Conquest compleated if not begun in K. Henry the Second's time in whose time there is no Record of any Establishment and being a Christian Kingdom they remained Governed by their own Laws until King John Anno 12 Regni sui by Charter for so they conceived it to be and not by Parliament for it appears that the Nobles were sworn which is not usual in Acts of Parliament neither is it Teste Rege in Parliamento introduced the English Laws yet it hath ever remained a distinct Kingdom viz. from the bringing in the Laws by King John M. Paris Hist 230. and Calvin's Case in 7 Co. 22 23. the Conquest brought it infra Dominium Regis sed non infra Regnum Angliae Oruke committed Treason in Ireland and it was held tryable by Commission by 33 H. 8. as a Treason out of the Realm 20 H 6. 8. the Judges here are not bound to take notice of the Laws of Ireland Fitzh tit Voucher 239. A man in Ireland cannot be Vouched Anders 262 263. 2 Inst 2. it is said Magna Charta nor the Statute Laws here did not extend to Ireland until Poinings Law 10 H. 7. tho' in truth it appears to be before by 8 E. 4. cap. 10. neither are they obliged by any Statute since unless named Dier 303. It is said of Lands holden in Capite in England and Ireland that there ought to be several Liverties and by several Seals 11 Ed. 4. 7. When the King went into Ireland it was held to be a Voyage Royal. And Wyld said Two Kingdoms could not be united but by Act of Parliament and there ought to be reciprocal Acts and so is my Lord Coke 4 Inst cap. Scotland But this the Chief Iustice said in his Argument was not requisite in case of a Conquered Nation which hereby had lost its Original Right of holding Parliaments but he agreed in case of Kingdoms independent one upon the other He said he had a Charter whereby Gascoigne Guyan and Callice were united to England in Ed. the 3ds time and recited to be by mutual pact upon a Peace concluded that Wales was fully conquered in Ed. 1st time whereupon they all submitted de alto basso to the King and it appears he abrogates some Laws makes some new and continues others and Wales was united and consolidated with England in H. 8 time by Act of Parliament here but there was no Act on their part neither is Ireland only a distinct Kingdom but also subordinate A Law enacted here to extend to all the Kings Dominions shall bind Ireland Writs of Error have been always brought here to reverse Iudgments in Ireland and they naturally lie as the Chief Iustice said into all subordinate Kingdoms Fitz. tit Ass 562. A Writ of Error to reverse a Iudgment given in an Assize in the County of Glamorgan and 21 H. 7. 31. B. it is said many Writs of Error have been brought to reverse Iudgments given in Callice tho' it was alledged the Civil Law there was in use So the Romans allowed Appeals out of every Province subordinate unto them as appears by the Case of St. Paul in the Acts and 't is against Nature that the Inferiour should have any influence upon the Superiour suppose a Bill of Naturalization were brought into Parliament here and rejected and after it should pass in Ireland should it have the same effect as if it had passed here If this might have been what needed the endeavours in the beginning of King James's Reign to obtain an Act for the Naturalization of all Scots and the Union of both Kingdoms when an Act in Ireland would have been as effectual and procured with much greater facility Neither is the Parliament of Ireland equal to that of England for that might be aliened by an Act of Parliament as Gascoigne and Guyan were by mutual Consent tho' the King cannot do it alone therefore King John's Grant to the Pope was held absolutely void but Ireland could not be transferred from the Sovereignty of England by any Act there for they cannot discharge themselves of their Subordination to England H. 3. granted to Ed. 1. Terrem Hibernicam and it was held to be void 40 Ed. 3. 4 Inst 357. And if they should make an Act
this Law by which this matter is to be decided Answ This Objection hath some speciousness in it but no weight First The Law viz. the Levitical Law is generally understood to be that which is publickly received as the Translation all Laws that are made concerning any such thing are to be understood of that kind of the thing which is vulgarly and generally known and received Secondly And 't is not long since the Clergy came to be so learned they were content heretofore with the Vulgar Translation and 't is not necessary for a Dean for that purpose or other Dignitary or Clergyman quasi such that he should understand the Languages But Thirdly We have no Cognizance of this Matter there was a time when they had no cognizance of Wills and Testaments but now they have they must study them and determine concerning them Since we have a Cognizance we may as well prohibit in this Case of Land Freehold c. For since this is made of the same nature we must go the same way If an Act were made that in matter of Theft c. we should judge after the Law of Moses we must study it and judge by it 'T is no new thing that Laws be thus transferred from one Nation to another thus was the Law of the Twelve Tables from Athens to Rome thus the Law of Rhodes to other parts of the World and so our Law was made the Law of Ireland and this is the Answer I give to the two Statutes that since we have Cognizance we must take notice of Gods Law If Churchmen in this case encroach Iurisdiction they must be prohibited because they have no Cognizance and we have tho' their accidental Learning may be more than ours Object 'T is hard that this should be a Prohibiting Law any more than those two other Statutes which 't is agreed were directive only to the Spiritual Courts and gave the Temporal Courts no Jurisdiction Answ There is a full and flat answer to this this Statute makes it not at all cognisable by them for where any Court has Cognizance the party must have Process c. But now here in the close of this Statute 't is enacted That no Person c. shall be admitted to any of the Spiritual Courts c. to any Process Plea or Allegation contrary to this foresaid Act And therefore all Cognizance of that nature is taken away from them They have Cognizance of all Marriages within the Levitical Degrees we allow and agree to disturb and punish the Parties but they have no Cognizance nor Power to determine what is within the Levitical Degrees and what not I conclude It is the Opinion of this Court and of all the Iudges that the Prohibition do stand and no Consultation be granted In this Case Dr. Stern the Archbishop of York was very zealous and industrious to set aside the Prohibition He made several and distinct applications to the Iudges about it he earnestly and particularly debated the matter with them and gave them Papers of his Arguments and Reasons to prove this Marriage incestuous and unlawful Thomas Rudyards Case THomas Rudyard an Attorney of this Court came into this Court upon the retorn of an Habeas Corpus directed to the Keeper of Newgate who retorned that he was taken and detained by virtue of a Warrant to him directed from Sir Samuel Sterling Lord Mayor and Sir J. Robinson two of the Kings Iustices of the Peace the tenour of which Warrant follows in these words Whereas T. R. Gent. hath been brought before Us and examined touching several Misdemeanours by him committed within the City of London since the Month of April and before the 4th of this instant June and to Us complained of and more particularly for inciting and stirring up of His Majesties Subjects then and there to the disobedience of his Laws and for abetting and encouraging of such as do meet in unlawful and seditious Conventicles contrary to the form of the late Statute made in the 22th Year of our Sovereign Lord the King that now is upon whose Examination we find just cause to suspect him to be guilty of the said Misdemeanours and thereupon did require him to find Sureties to be of the good Behaviour which he refused These are therefore to require you to take into your Custody the Body of the said T. R. and him safely to keep till he be from thence delivered by due Course of Law Given under our Hands and Seals this 11th day of June 1670. The Retorn being filed and spoken to by the Counsel upon two several days the Court delivered their Opinion Seriatim Wyld held that he ought to be remanded for if the Warrant had been that he appeared to be guilty or that they had found him guilty then the Commitment had been good as hath been agreed on all Hands and here the words in a favourable construction amount to as much The proceedings of the Magistrates against such Seditious Persons are to be encouraged especially in such a time as this when 't is known they are grown to such a head Archer contra For 't is altogether uncertain 't is said he was complained of c. but not that he did any thing and that they find just cause to suspect but shew not the Cause in particular If it had been said sundry Misdemeanours and not expressed what all would agree it insufficient as Chambers Case 1 Cro. and Wolnoths Case ibid. Mr. Selden 3 Car. was required to find Sureties for the good Behaviour for which the Iudges were severely reprehended in full Parliament because no sufficient Cause appeared Tho' the Iustices here had sufficient Cause to induce their suspicion they ought upon the Retorn to have signified it to the Court for their satisfaction also it should have been expressed also in what sum they required him to find Sureties that it might have appeared to be reasonable so that we cannot remand him but I think 't is fit to oblige him to Bail to appear the first day of the next Term that he may answer such things as shall be objected against him Tyrrell It is the Statute of 34 E. 3. c. 1. that enables Iustices of the Peace to require Sureties for the good Behaviour and that upon Suspition and seems to refer it to their Discretion but that must be exercised according to Law and whether it be or no the Iudges in this Hall must judge and therefore the matters ought to be certainly certified to them The present Retorn is altogether uncertain wherefore I think it ought to be discharged but I would advise him to consider the Statute of 35 Eliz. c. 1. against impugners of the Kings Authority in Ecclesiastical Causes Vaughan Chief Iustice This Case is one of the nicest that ever I met with on the one side is the consideration of discouraging Sectaries and preserving of the Publick Peace and Quiet of the Government On the other side the Legal Right which every
from naming another This nomination can be taken to be no more than a proposal of the thing to Jessup who must be taken to be present at the first nomination for the pleading is quod adtunc ibid ' penitus recusavit But the great Objection relied upon at the Bar and by the Chief Justice was that Jessup tho' he did refuse might have still proceeded with the Vmpirage and then if Clarke were well nominated there should be a concurrent Authority in several Persons to make an Award which the Law will not suffer as the Case of Bernard and King Rol. Abr. 262. and Sty 306. where the submission was to the Award of A. and B. so so that they made the Award within such a time and if they made no Award then to the Award or Vmpirage of C. so as he made his Award within the same time and the Pleading was that the Arbitrators denegassent facere Arbitrium within the time superinde C. made an Award within the time and it was adjudged that the Award was void because the Arbitrators notwithstanding the denial might have made an Award and the Vmpire could have no power till their power was determined And the Case of Barber and Giles 1 Ro. Abr. 261 is to the same purpose To which it was answered That if it be admitted that Jessup after his refusal might have taken upon him the Vmpirage in case the Arbitrators had named no other Vmpire yet 't is clear Jessup could not have accepted the Vmpirage after another was named for the Arbitrators naming another upon his refusal had quite taken away their first nomination and in case Jessup had accepted before they had proceeded to name another then the Arbitrators had been prevented naming of any other so here could be no concurrent Power at all Vide the Case of Frall and Brierly 2 Ro. Abr. 261. Where the submission was to two Arbitrators and if they did not agree within a certain time then to the Vmpirage of such an one as they should choose so that the Vmpire made his Award within the same time And it was shewn that the Arbitrators made no Award and they chose an Vmpire who made an Award within the time and that was held good because they had determined their Power by choosing an Vmpire and so it differed from the Case of Bernard and King where the Vmpire was named in the submission and the Case of Copping and Horner 2 Saunders 129. where the submission was to Arbitrators and if they made no Award and could not agree in such a time then to the Arbitrament of J. S. so that he made an Award within the same time In an Action brought upon the Award made by the Vmpire it was set forth that the Arbitrators made no Award nec facere potuerunt aliquod Arbitrium inter Partes and that the Vmpire made an Award within the time upon a Demurrer to the Declaration Iudgment was given for the Defendant for the Averment quod non potuerunt facere Arbitrium was idle for it appeared they might have made an Award within the time But as 't is reported by Saunders if the Plaintiff had set forth that they had declared they would make no Award Then all the Court held except Twysden Justice that the Award of the Vmpire had been good And this Ventris said did somewhat shake the Authority of Bernard and Kings Case But Pollexfen Chief Justice said he had taken a report of the Case of Copping and Horner and produced his Report where there was no mention of that last Opinion reported by Saunders And the Chief Justice said no Case could be put that where a man that was vested with a bare Authority his denial or refusal to execute it could conclude him but that notwithstanding he might execute his Authority but if he makes a void or insufficient execution he may do it over again There is no reason he said to take the words adtunc ibidem penitus recusavit that he was present and that the nomination was but a communication or proposal for if he had notice of it many days after and refused the pleading might be the same and no Traverse could be taken to the adtunc ibidem Where a man is to be vested with an Interest his Acceptance is necessary but it signifies nothing when but a bare Authority In the Cases of Awards the Pleading is nullum fecerunt arbitrium and 't is never pleaded that they were not Arbitrators or that they refused to be Arbitrators for the Submission makes them so the pleading suscepto super se onere arbitrii is but meer Form Lessee for years assigns upon Condition to obtain the assent of the Lessor the Lessor at first denies he may after Consent and 't is a good performance of the Condition 14 H. 7. 17. This is properly an Authority in the Arbitrators 't is so taken in Vinyor's Case in 8 Co. and is revokable as other Authorities are These were the Chief Reasons upon which the Chief Justice relyed But Iudgment was given for the Plaintiff by the Opinion of the other three Justices Anonymus IN a Writ of Dower the Tenant was Essoigned and the Essoign adjourned in Crastino Purificat ' at which Day the Demandant did not appear with the Writ and demand the Tenant but would have a Grand Cape made out This being shewn to the Court they said the Demandant must be Nonsuit for his not being ready in Court at the Day of Adjournment of the Essoign to demand the Tenant and the Tenant was therefore in no default Dowse versus Cale Midd. ss JOHANNES CALE nuper de London ' Plumber Covenant by an Assignee of an Assignee of an Assignee against an Executor Executor Test'i Richardi Cale nuper dict' Richard Cale of the Parish of St. Bridgets alias Brides London Plumber sum ' fuit ad respondend ' Thomae Dowse gen ' assign ' Thomae Dowse patri suo assign ' Arthuro Stanhope Armig ' Edwardo Rosceter Mil ' Johanni Wostenholme Armig ' Thomae Bristowe gen ' assign ' Johannis Comitis de Clate de placito quod teneat ei convention ' inter ipm̄ Johann ' Comitem de Clare praefat ' Ric ' Cale in vita sua fact ' secundum vim formam effectum quarundam Indentur ' inter eos confectarum Lessor seised in Fee c. Et unde idem Thomas Dowse per Robert ' VVaring Attorn ' suum dic ' quod cum praedict ' Johannes Comes de Clare nono die Decembris Anno Domini Millesimo sexcentesimo quadragesimo septimo seisit ' fuisset de in tribus Messuagiis cum pertin ' in parochia sancti Clementis Dacorum in Com' Midd ' praed ' in dominico suo ut de feodo Ipsoque Johanne Comite de Clare sic inde seisit ' existen ' Idem Johannes Comes de Clare postea scilicet eodem nono die Decembris Anno Domini Millesimo sexcentesimo
that King James came to the Crown and the time is supposed to have influenced the Opinion of the Court and the Plaintiff had Iudgment After having heard the Case several times spoken to the Court gave Iudgment for the Plaintiff principally for the words that he went to Mass for by the Statute of 23 Eliz. cap. 4. the Offender is to Forfeit 100 l and he imprisoned for a year so that they expose him to Corporal Punishment It is held that to say a Man committed petit Larceny is Actionable Allens Rep. 11. The Chief Justice here said That where a Man had been in an Office of Trust to say that he behaved himself corruptly in it as it imported great Scandal so it might prevent his coming in to that or the like Office again and therefore was Actionable Note The time these words were spoken was taken notice of viz. between King James the Second's Desertion of the Kingdom and the Proclaiming of the King and Queen when to call a Man Papist would have exposed to him the danger of the Rabble whereupon Judicium pro Quer. Lade versus Parker VIde ante Termino Michal ' ult It was this Term moved again That the pleading dedit concess ' Nicholao Marsh filio suo Annuitatem praed ' habend ' praed ' Nicholao heredibus assignat ' suis ad opus usum dicti Nicholai haered ' assign ' suor ' per quod vigore Statuti de usibus in possession ' transferen ' the said Nicholas became seised c. was sufficient and the words quae quidem concessio c. quod vide ante were to be rejected as Surplusage And of that Opinion were Powell Rokeby and Ventris But Pollexfen Chief Justice held strongly to the contrary and he agreed this Deed being to the Son with an express Consideration of natural affection tho' Money was also part of the Consideration mentioned that it would work as a Covenant to stand seised But then the Parties ought to have pleaded it as a Covenant to stand seised according to the legal construction of such a Deed where there is no Execution at Law whereas here they have pleaded it as a Grant at the Common-Law The other Judges differing in their Opinion said it was sufficient to plead the Deed as it was worded and if there were sufficient matter to intitle the Avowant Iudgment ought to be given accordingly and then the Avowant concludes that he became seised by the Statute of Vses which shews he intended to take the operation of the Deed that way so Iudgment was given for the Avowant Chief Justice contra Note Serjeant Levins cited the Pleading in Foxes Case 8 Co. where the words Demise and Grant in consideration of Money amounted to a Bargain and Sale it being of an Estate for years without enrolment it was pleaded dimisit concessit ad firmam tradidit non Barganizavit Woodward c. versus Fox IN an Action sur Assumpsit for 200 l received to his use Vpon non Assumpsit a Special Verdict was found quod vide ante Term ' Trin ' ult ' and the Case this Term came to have the resolution of the Court The case upon the Special Verdict is to this effect an Arch-deacon maketh a Register of the Court belonging to his Arch-deaconry in Consideration of 100 l The Bishop of the Diocess who was also Patron to the Archdeacon supposing the Office to have been void by the Statute of 5 and 6 Edw. 6. against the Sale of Offices relating to the Administration of Iustice granted the said Office of Register to the Defendant and the said Grant was confirmed by the Dean and Chapter The Archdeacon after the Death of that person to whom he had sold the Office ut supra Grants the said Office to the three Plaintiffs for their Lives and the Life of the longer liver of them the Plaintiffs before any Office found for the King or any Record shewing the Sale of this Office obtains a Grant of it from the now King and Queen The Court were all of Opinion for the Plaintiffs The Court did not speak to two Points stirred in the case viz Whether this Office could be granted for three Lives or whether it was within the said Statute of 5 and 6 Edw. 6. because they were in a manner agreed at the Bar and the Points setled But the two main Points in the Case which were spoken to are First Where an Archdeacon sells the Office of Register in the Court of the Archdeaconry whether by the Statute of 5 and 6 Edw. 6. the Grant and Nomination to this Office shall come to he Crown or whether it shall go to the Bishop of the Diocess Secondly Admitting the Right to be in the Crown whether the King and Queen can make a Register till Office found or that the Title appeareth by some matter of Record 1. It was resolved that the Right of appointing the Register it being Forfeited by the said Statute of 5 and 6 Edw. 6. did come to the King and Queen It is a Rule laid down by Manwood Chief B. Mo. 238. That where a Statute giveth a Forfeiture either for Nonfesans or Mis-fesans the King shall have it so in 11 Co. 68. This follows the Reason of the Common-Law in case of things which are nullius in bonis where no visible Right appears the Law giveth them to the King Siderfin 148 86. As Derelict Land Treasure Trove and a great number of such like instances may be cited from the Books so it is in Extraparochial Tithes tho' things of an Ecclesiastical nature 2 Inst 646. Cawdry's Case 5 Co. 18. Nay if the Right lie equal between the King and Subject the Kings Title hath the preference by Law Detur digniori is a Rule 9 Co. 24. In case of concurrence of Titles between the King and Subject It was objected That this held in valuable things and matters of profit to the Crown But the Court said there was no such distinction made in the Books and many Prerogatives c. were given to the King for the publick good and interest of the Government as well as for encrease of the King's Treasure There is no exception out of this construction of Forfeitures upon Penal Statutes unless they are in recompence for the Damage suffered by a Subject as the Statute of 2 Ed. 6. that giveth the Forfeiture of the treble value for not setting out of Tithes 2 Inst 650. And this follows the Reason of the Common Law that Fines and Penalties for Offences at Law go to the King as the Head of the Government and that was the second Reason the Court went upon that the Offence for which this Forfeiture is inflicted is principally against the King By the preamble of the Statute it appears to be made for avoiding of corruption in Offices and abuses in the Administration of Justice Now the King is the Fountain of Justice and that Ecclesiastical as well as Civil in
Mesuages Lands and Premisses And to the intent that the Contingent Remainder by the said Will limited to the Heirs Males and Females of the Body of the said Robert Durdant might be extinguished and destroyed he the said John Higden by the appointment of the said Robert Durdant did surrender his Estate in the Premisses to the said Gideon Durdant and by the said Deed it was Covenanted That the said Robert Durdant John Higden and Gideon Durdant should levy a Fine of the Premisses which should be to the use of the said John Higden and his Heirs They find that a Fine was levied accordingly in Easter Term 15 Car. 2. They find That Robert Durdant died on the 19th of August 20 Car. 2. and that John Higden after in 20 Car. 2. upon a valuable Consideration in money enfeoffed John Burchet of the Premisses and that the said Burchet died the 1st day of October in the same year and that the Premisses from him came to the Defendant Burchet who entred into the Premisses and became seised prout lex postulat And they find That Robert Durdant as well at the time of the said Will making as at the death of the said Henry Wicks had an only Son called George Durdant who was also Godson to the Testator and that the said George Durdant died and that William Durdant Lessor of the Plaintiff was his Son and Heir and entred and made the Demise prout c. si super totam materiam c. Vpon his Special Verdict Iudgment was given in the Kings-Bench for the Plaintiff And the Court here afterwards having heard the Case thrice Argued did affirm the Iudgment And the first Point spoken to was Whether the Estate did not execute in Robert Durdant by the Statute of 27 H. 8. of Uses For if so he would be seised of an Estate tail and then Burchet would have a good Title It is clear Lands may be Devised to the use of another as in Popham 4. 'T is true a Devise implies a Consideration and will lodge the Estate in the Devisee if no Vse be limited upon it Here it is Devised to John Higden and his Heirs upon trust and confidence that he should permit and suffer c. The word Trust is proper for the Limitation of an Use and the Estate shall Execute unless it be first limited to the use of a man and his Heirs in Trust for another there the Intention is that it should be only a Trust and here Robert Durdant is restrained only from doing waste which shews that he intended he should take an Estate or else he could not commit waste But Lands may be Devised to an Use tho' the Statute of Wills is since the Statute of Uses Mo. 107. 1 Cro. 343. The Court over-ruled this Point and Resolved it to be only a Trust in Robert Durdant for the words are That Higden should permit him to take the profits which shews that the Estate was to remain in Higden And for the restraint of waste it was proper for Higden was to permit Robert Durdant to have the possession but the Testator would not have him to commit waste or spoil The second and principal Point was Whether the Remainder to the Heirs of Robert Durdant now living did vest in George Durdant or was a Contingent Remainder It was much urged That one could not take in the Life of his Ancestor by the name of Heir for nemo est haeres viventis in the 1 Co. Archer's Case A Devise to Robert Remainder to the next heir Male of Robert and to the heirs Males of the Body of that heir Male this is Resolved to be a Contingent Remainder during the Life of Robert and it was said in that Case that the next heir Male is as much a designation of a person as an Heir now living He that will take by purchase by the name of Heir must be a compleat Heir to all intents Co. Littl. 24. b. 2 Leon 70. Chaloner and Bowyer 's Case upon a Devise But it was Resolved that this was a Remainder vested in George Durdant for the Remainder being limited to the Heirs of the Body of Robert Durdant now living and George being found to be then the only Son it was a sufficient designation of the person and as much as if it had been said to his Heir apparent and such an one is called Heir sometimes in proceedings in Law where the greatest strictness of phrase is used as in Writs of Ravishment of Ward Quare filium haeredem rapuit 2 Inst 439. Westm 2. cap. 35. 25 Ed. 3. the Statute of Treasons Treason to kill the Heir of the King The third Point was Whether George Durdant took an Estate Tail or only an Estate for Life for it was Objected that if the words Heirs of the Body were taken for the description only of the person who should take then he must take only for Life But the Court held that they would make an Estate Tail for Heirs is nomen collectivum and is sometimes so taken when 't is only Heir in the Singular Number A Devise to one for life Remainder to the heir Males of his Body for ever this is an Estate Tail in the Devisee Pawsey and Lowther in Rol. Abr. 2. Part 253. But in case the first words viz. Heirs of the Body now living would carry but an Estate for Life to George Durdant yet the subsequent words would make an Entail in him viz. and to such other Heirs Male and Female as he should hereafter happen to have of his Body this would clearly vest an Entail in George he being Heir of the Body of Robert and surviving Robert So the Judgment was affirmed Sed Nota as to the second Point the Lord Chief Baron Atkyns and Justice Powell seemed to be an Opinion that the Remainder was Contingent But in regard the Point had been upon a Writ of Error brought in the House of Lords upon a Judgment given in the Kings-Bench in another Case upon the same Will adjudged to be a Remainder vested they conceived themselves bound by that Judgment in the House of Lords Paschae Anno 2 Willielmi Mariae Memorandum BY an Order of the King and Council 1 Willielmi Mariae the Judges were Ordered to meet and all of them except Gregory Eyre and Turton were assembled at the Lord Chief Justice's Chamber to give their Opinion concerning Colonel Lundy who was appointed Governour of London Derry in Ireland by the King and Queen and had endeavoured to betray it and afterwards he escaped into Scotland where he was taken and brought Prisoner into England and Committed to the Tower Whether admitting he were guilty of a Capital Crime by Martial Law committed in Ireland he might be sent thither from hence to be Tryed there in regard of the Act of Habeas Corpus made Anno 31 Car. 2. which Enacts That no Subject of this Realm shall be sent over Prisoner to any Foreign parts But
then it has a Proviso That if any Subject of this Realm has committed any Capital Crime in Scotland or other Foreign parts of the King's Dominions he may be sent from hence to be Tryed in such Foreign place Vpon Consideration of which Proviso the Judges unanimously gave their Opinion That there was nothing in the Habeas Corpus Act supposing he had committed a Capital Crime by Law Martial in Ireland to hinder his being sent thither to be tryed thereupon and subscribed their Names to the said Opinion and certified the same to the Privy Council Note That it was said while my Lord Hale was Chief Justice of the King-Bench that one who had committed Murther in the Barbadoes and taken here was sent over to be Tryed there But was before the Habeas Corpus Act. Patrick Harding's Case HE was Indicted at the Sessions in the Old Baily Anno primo Willielmi Mariae for High Treason The Indictment sets forth that the said Patrick Harding machinans proditorie intendens pacem communem tranquillitatem hujus regni Angl ' destruere Gubernationem dictorum domini Regis dominae Reginae infra hoc regnum Angl ' subvertere ac caedes destructiones desolationes infra hoc regnum procurare 23 Novembr ' anno regni domini nostri Willielmi Mariae c. primo apud paroch ' sanctai Martini in Campis in Com' Middlesex ' praedict ' malitiose proditorie compassavit imaginat ' fuit intendebat dict' dom ' Regem dom ' Reginam adtunc supremos veros indub ' dom ' suos non solum à statu titulo potestate imperio regimine regni sui Angl ' penitus deponere deprivare verum etiam eosdem dom ' Regem dom ' Reginam interficere ad mortem finalem destructionem ponere adducere stragem miserabilem inter subditos per totum hoc regnum alia Dominia sua causare quodque ipse praedict ' Patrick Harding ad nequissimas proditiones proditiosas intentiones suas praedict ' perimplend ' eodem vicesimo tertio die Novembr ' apud paroch ' praedict ' proditorie vi armis c. bellum rebellionem contra dictos dom ' Regem dom ' Reginam nunc ordinavit levavit gerebat ac diversos milites viros armatos armaturos ad mil ' ac bellum contra dictos Regem Reginam nunc gerend ' congregavit levavit procuravit ac viros milites sic ut praefertur levat ' extra hoc regnum Angl ' misit iter suum suscipere procuravit ad sese jungen ' aliis hostibus inimicis rebellionibus dictorum Regis Reginae bellum contra eosdem gerend ' ulterius quod ipse Patricius Harding ad nequissimas suas proditiones perimplend ' perficiend ' eodem 23 Novembr ' apud paroch ' praedict ' ut falsissimus proditor dictor ' Regis Regin ' cum quodam Johanne Taaf adtunc subdito dictor ' Regis Reginae existen ' proditorie se assembl ' consultavit ac easdem proditiones suas praed ' adtunc ibid ' eidem Johanni Taaff malitiose proditorie advisat ' loquend in auditu divers subditor ' dictor ' Regis Reginae publicavit declaravit ad suadend ' eundem Johannem Taaff adjutan ' assisten ' esse in iisdem proditionibus magnum praemium stipend ' eidem Johanni Taaff adtunc ibidem obtulit Si ipse praed ' Johannes Taaff adjutans assistens in iisdem esse vellet contra ligeantiae suae debitum contra pacem dictor ' dom ' Regis dom ' Regin ' nunc coron ' dignitat ' suas necnon contra formam Statut ' in hujusmodi casu edit ' provis ' c. Vpon Not guilty pleaded the Jury found a Special Verdict Viz. That Patrick Harding to the intent to Depose the King and Queen and deprive them of their Royal Dignity and restore the late King James to the Government of this Kingdom did for Money by the said Patrick paid list hire raise and procure Sixteen men Subjects of this Kingdom at the time and place in the Indictment mentioned to fight and wage war against the King and Queen and those Sixteen men so listed hired raised and procured did send out of this Kingdom into the Kingdom of France to assist and aid the French King then and yet an Enemy to the King and Queen and in open war with Their Majesties and to joyn themselves with the Enemies and Rebels of and against the King and Queen in waging war against the King and Queen And if upon this matter the said Patrick Harding be guilty of Treason prout the Indictment then we find him Guilty prout c. and if Not guilty c then not Guilty c. Vpon this Special Verdict found the Lord Chief Justice Justice Gregory and Justice Ventris who were then present at the Sessions conceived some Doubt for they were of Opinion that it did not come within the Clause of the Statute of 25 Ed. 3. of Levying War For that Clause is That if a man levy War against our Sovereign Lord the King in his Realm and by the Matter found in the Special Verdict it appears that these Men were listed and sent beyond Sea to aid the French King It was also Doubted whether it were a good Indictment within the Clause of the Statute of adhering to the King's Enemies the Fact found in the Verdict comes fully within that Clause viz. the sending Men to aid the French King then an Enemy to the King and Queen in open War against them But the Indictment is short as to this matter for 't is quod milites sic ut praefertur levatos extra hoc regnum Angl ' misit ad sese jungend ' aliis hostibus inimicis rebellat ' dict' Regis Regin ' whereas it should set have forth who the Enemies were that the Court might take notice whether they were Enemies as the Law intends 33 H. 6. 1. b. If the Indictment had been That he sent them to the French King then in open War c. it had been well And upon these Doubts the Case was Adjourned for further Consideration In Michaelmass Vacation the greater part of the Judges were assembled at the Lord Chief Justices Chamber and having debated the Matter amongst themselves they all except Justice Dolben agreed that the said Patrick Harding was guilty of High Treason within the Clause of the Statute for Compassing the Death of the King it being found by the Verdict That the said Patrick Harding to the intent to depose the King and Queen and deprive them of their Dignity c. did for Money hire list c. and an intent to Depose the King proved by an Overt act hath been always taken to be within the Clause of Compassing the Death of the King So is Hales's Pleas
of the Crown so 11. and so it was held in the Case of the Earl of Essex in Queen Elizabeths Time and in the Lord Cobham's Case in the Reign of King James the First And the Chief Justice cited the Statute made 29 H. 6. cap. 1. upon the Rebellion of Jack Cade which Act sets forth that John Cade naming himself John Mortimer falsly and traiterously imagined the Death of the King and the destruction and subversion of this Realm in gathering together and levying of a great Number of the King's People and exciting them to Rise against the King c. against the Royal Crown and Dignity of the King was an Overt act of imagining the Death of the King and made and levied War falsly and trayterously against the King and his Highness c. So that it appears by that Act that it was the Iudgment of the Parliament That gathering Men together and exciting them to Rise against the King was an Overt Act of Imagining the Death of the King Vide Stamford's Pleas of the Crown fo 180. And according to this Opinion Judgment was given against Harding in the following Sessions and he was Executed thereupon NOta At an Adjourned Sessions held the 19th of May 2 Willielmi Mariae it appeared that one of the Kings Witnesses which was to be produced in an Indictment for Treason had been the day before Challenged to Fight by a Gentleman that it was said was a Member of the House of Commons he was by the Court bound in a Recognizance of 500 l to keep the Peace And because it appeared the Witness had accepted the Challenge he was bound in the like Sum. NOta Vpon an Appeal to the House of Lords Anno 2 Willielmi Mariae the sole Question was Whether upon the Statute of Distributions 22 23 Car. 2. the half Blood should have an equal share with the whole Blood of the Personal Estate And by the Advice of the two Chief Justices and some other of the Judges the Decree of the Lords was That the Half Blood should have an Equal share Samon versus Jones IN an Ejectment brought in the Court of Exchequer in the year of the Reign of the late King James the Second The Case upon a Special Verdict was to this effect William Lewis seised of a Reversion in Fee expectant upon an Estate for Life did by Deed Poll in Consideration of Natural love and affection which he had to his Wife and Robert Lewis his Son and Heir apparent begotten on the Body of his said Wife and to Ellen his Daughter give grant and confirm unto the said Robert Lewis the Son all those Lands c. the Reversion and Reversions Remainder and Remainders thereof To have and to hold to his Son and his Heirs to the Vses following viz. to the use of himself for Life and then mentioned several other Vses not necessary to be here mentioned as not material to the Point in question and then to the use of the Wife for Life and after to the use of Robert and the Heirs of his Body and for want of such Issue to the use of Ellen the Daughter and the Heirs of her Body c. William Lewis and his Wife died Robert the Son devised the Estate to the Lessor of the Plaintiff and died without Issue Ellen was in possession and claimed the Lands by this Deed in which thâ—re was a Warranty but no Execution of the said Deed further than the Sealing and Delivery was had either by Enrolment Attornment or otherwise So that the sole Question was Whether this Deed should operate as a Covenant to stand seised or be void And it was Adjudged to amount to a Covenant to stand seised in the Court of the Exchequer And upon a Writ of Error brought upon the Statute of Ed. 3. before the Commissioners of the Great Seal and others empowered by that Act to sit upon Writs of Error of Judgments given in the Court of Exchequer the said Judgment was Reversed by the Opinion of Holt Chief Justice of the Kings Bench and Pollexfen Chief Justice of the Common-Pleas And upon a Writ of Error before the Lords in Parliament brought upon the said last Judgment it was Argued for the Plaintiff in the VVrit of Error That this should enure as a Covenant to stand seised to the use of the Wife Son c. It appears by Bedell's Case in the 7 Co. and Foxe's Case in the 8 Co. that the words proper to a Conveyance are not necessary but ut res magis valeat a Conveyance may work as a Bargain and Sale tho' the words be not used so as a Covenant to stand seised tho' the word Covenant is not in the Deed and and Poplewell's Case were cited in 2 Roll. Abr. 786 787. A Feme in Consideration of a Marriage intended to be had between her and J. S. did give grant and confirm Lands to J.S. and his Heirs with a Clause of VVarranty in the Deed which was also Enrolled but no Livery was made It was Resolved to operate as a Covenant to stand seised Vide Osborn and Churchman's Case in the 2 Cro. 127. which seems contrary to that Case but the chiefest Case relied upon was that of Crossing and Scudamore Mod. Rep. 175. where a man by Indenture bargained sold enfeoffed and confirmed certain Lands to his Daughter and her Heirs and no Consideration of Natural Love or Money exprest This was Resolved 22 Car. 2. in B.R. to operate as a Covenant to stand seised and upon a Writ of Error in the Exchequer Chamber the Judgment was affirmed It was said on the other side for the Defendant That the Case at Bar differed from the Cases cited for here the Intention of the Deed is to transfer the Estate to the Son and that the Vses should arise out of such Estate so transferred In the Cases cited no Vses are limited upon the Estate purported or intended to be Conveyed but only an Intention appearing to convey an Estate to the Daughter in Crossing's Case and to the intended Husband in Poplewell's Case and seeing for want of due Execution in those Cases the Estate could not pass at Law it shall pass by raising of an Vse But the Case at Bar is much the same with the Case of Hore and Dix in Siderfin the 1st Part. 25. where one by Indenture between him and his Son of the one part and two Strangers of the other part in Consideration of Natural love did give grant and enfeoff the two Strangers to the use of himself for Life Remainder to the Son in Tail c. and no other Execution was three than the Sealing and Delivery of the Deed this was Resolved not to raise an Vse for the Vse was limited to rise out of the Seisin of the Strangers who took no Estate Vide Pitfield and Pierce's Case 15 Car. 1. Marche's Rep. 50. One gave granted and confirmed Lands to his Son after his Death this Deed had been
his Opinion that he might But if the Owner dig there also he conceived that he might then stop his farther progress And in Cornwall it is their Vse that if a man begins a Mine in his own Land he may proceed in the Vein through another mans Ground Note If a Bill in Chancery be Exhibited against a Peer the Course is first for my Lord Keeper to write a Letter to him and if he doth not answer then a Subpoena and then an Order to shew Cause why a Sequestration should not go and if he still stands out then a Sequestration For there can be no Process of Contempt against his Person Termino Sanctae Trinitatis Anno 29 Car. II. Clobberie's Case IN one Clobberie's Case it was held That where one Bequeathed a Sum of Money to a Woman at her Age of 21 years or Day of Marriage to be paid unto her with Interest and she died before either that the Money should go to her Executor and was so Decreed by my Lord Chancellor Fynch But he said If Money were bequeathed to one of his Age of 21 years if he dies before that Age the Money is lost On the other side If Money be given to one to be paid at the Age of 21 years tho' if the party dies before it shall go to the Executors Termino Sancti Michaelis Anno 30 Car. II. In Cancellaria Haymer Vid. versus Haymer THe Case was thus The late Husband of the Plaintiff before their Marriage had entred into Articles with the Plaintiff whereby it was Agreed That certain of the said Haymer's Lands should be setled before the Marriage which was then intended between them should be solemnized upon him and the Plaintiff and the Heirs of his Body by the Plaintiff but died before the Settlement was made In pursuance of the said Articles the Plaintiff married him and after his Decease the Plaintiff Exhibits her Bill to have those Articles executed Which was Decreed accordingly against the Heir at Law of the Husband Altho' it was Objected That the Articles being to make the Settlement before Marriage it was a Waver of the benefit of them the Plaintiff marrying before it was done and the Plaintiff being the sole party with whom they were made her marriage with the other party before they were performed was a Release in Law Note The Lands were mortgaged to one that had no Notice of the Articles It was Decreed That the Plaintiff should Redeem and hold for her Life and that her Executors should detain the Land till the Money was raised that she had been out upon the Redemption Termino Sancti Hillarij Anno 31 32 Car. II. In Cancellaria Sir Oliver Butler's Case UPon a Scire facias to Repeal a Patent granted by this King to Sir Oliver Butler for a Market to be kept at Chatham reciting That there was an Ancient Market long before kept at Rochester within Half a Mile of Chatham and that there was an Ad quod damnum taken out before the New Patent and the Inquest thereupon taken found it not to be to the Damage of any and that it was Executed by Surprize and without Notice and that notwithstanding it was to the great Damage of the former Market c. To this Scire facias Sir Oliver Butler Demurred And it was Argued by his Counsel That this Patent could not be Repealed because it was preceded by a Writ of Ad quod damnum whereupon it was found to be to no Bodies damage and that should conclude all or at least the King could not bring a Scire facias to Repeal his own Patent But the Lord Chancellor Fynch assisted by North Chief Justice of the Common-Pleas and Justice Jones gave Judgment for Repealing of the Patent For the Return of the Writ of Ad quod damnum was not Conclusive and here by the Demurrer it is Confessed to be to the Damage of the former Market And where a Patent is granted to the prejudice of the Subject the King of Right is to permit him upon his Petition to use His Name for the Repeal of it in a Scire facias at the King's Suit and to hinder multiplicity of Actions upon the Case for such Actions will lye notwithstanding such void Patent Termino Sanctae Trinitatis Anno 32 Car. II. In Cancellario Sir Jerom Smithson's Case A Motion was made for a Ne exeat Regnum against Sir Jerom Smithson for that his Wife had Sued him in the Ecclesiastical Court for Alimony and it was suspected that he would go beyond Sea to avoid the Sentence And the Writ was granted And the Lord Chancellor said That it had been so done before for this Court was to aid the Ecclesiastical Court in such Cases And likewise the Court being Informed of his Ill usage of his Wife a Supplicavit de bono gestu was granted My Lord Hollis's Case Pasch 26 Car. II. MY Lord Hollis's Case was thus An Hundred Pounds was Lent by his Lady and in the Note which was first given for it it was written that the Money was to be disposed as the Lady Hollis should direct An Action at Law for this Mony being barred by the Statute of Limitations a Bill was exhibited for Relief and the Statute of Limitations insisted upon But in regard the Money was looked upon as a Depositum and a Trust thereupon to the Lady a Decree was obtained for the Money Sir William Beversham's Case HE had purchased a Mannor and a Copyhold being a little before Escheated which was not intended to pass in Demesn was left out of the particular yet the Conveyance was sufficient to pass it in Law And the Vendor Exhibited a Bill to be relieved and obtained a Decree to hold by Copy of Sir William Beversham Vide 1 Roll. 397. Averments not to be admitted in Chancery contrary to the purport of a Deed. Anonymus Trin. Anno 31 Car. II. THe Case was thus J.S. made his Will his Wife being at that time with Child where he ordered that all his Personal Estate after his Debts and Legacies paid should be laid out in Land in case he had a Son and be setled upon his Brother for preservation of his Name and Devised That if his Wife were delivered of a Daughter that she should have 3000 l paid her at her Day of Marriage provided that she married with her Mothers Consent and otherwise but 1000 l and also Devised That the Mother should have 80 l part of the Interest of the 3000 l for the Education of the Daughter The Testator dies and the Wife has a Daughter The Question was Whether the Daughter should have the remaining part of the Interest of the 3000 l or the Executors should have it in Trust for the Brother and so to be laid out c. It was said for the Brother that the Father intended the Daughter but 3000 l at the most and that appointing 80 l part of the Interest of her Education excluded her from the rest
he had a way over the place where it is not material to the justification whither it leads it being after a Verdict when the right of the case is tried And it is aided at last by the Statute of Oxford 16 Car. And so Twysden said it was the Opinion of all the Iudges at Serjeants Inn he putting the Case to them at Dinner Norris and Cuffuil IN an Action upon the Case the Plaintiff declared That the Defendant in consideration of six pence paid in hand the 13 of Jan. 17 Car. and that the Plaintiff would pay him 20 s a Month he promised to serve him in his Glass-house after the first Iourny of Glass and sets forth quod primum iter vitrij tunc prox sequens aggreamentum praedictum fuit 21 Feb. 17 Car. which was the year before and that the Defendant did not come to serve him After Verdict for the Plaintiff it was moved in Arrest of Judgment That the Plaintiff had not declared sufficiently of any Iourny of Glass after the Agreement but that alledged appears to be the year before Et Adjornatur This Case being moved again Twysden said he had put it to the Iudges at Serjeants Inn and they were all of Opinion that it was well enough after a Verdict Heath versus Pryn. IN an Ejectione Firmae of the Rectory of Westbourn in Chichester upon Not Guilty pleaded it appeared upon the Evidence that the Plaintiffs Title was as Presentee of the Grantee of the next Avoidance from the Lord Lumly and Letters of Institution under the Seal of the Ordinary were produced but by reason of the times the Ordinary Parson and Patron being Sequestred no Induction followed thereupon until the Kings Restauration this Institution was 1645. Soon after the Defendant was placed in this Church by an Ordinance of Parliament and hath enjoyed it ever since and there was an Act of Parliament made 12 Car. 2. which confirms Ministers in their Possessions of any Benefice with cure tho' they came not in by Admission Institution and Induction but according to a Form used in those times in which Act there is also a Clause of Restitution of sequestred Ministers to such Benefices as they had been seized of by taking the profits It was alledged on the Defendants side that the Plaintiff proving nothing of a Presentation the Institution could not be admitted as Evidence of it especially in this case where the Induction was so long after to which the Court did incline And then the Oath of the Grantee of the next Avoidance was offered which was not admitted altho' his Interest was executed by the Presentment And it was said that an Assignor might be sworn a Witness to the Assignment of a Lease where there were no Covenants It was also said that the Plaintiff was not within the clause of Restitution of the Act of 12 Car. because he was never seized by taking the Profits which cannot be until Induction according to Hare and Bicklers Case in the Commentaries quod suit concessum To which it was replied That neither was the Defendant within the clause of Confirmation because the Rectory in question was not a Benefice with cure for there is belonging to it a perpetual Vicaridge Endowed and the Vicar comes in by Admission Institution and Induction who performs Divine Service pays the Synodals and Procurations repairs the Chancel and therefore it hath been adjudged that such a Vicar shall have Arbores in Coemiterio And it was said that the Statute of 21 Hen. 8. against Pluralities doth not extend to Rectories where there are Vicaridges Endowed And Linwood describes a Benefice without cure cujus cura Vicariis perpetuo exercenda est Otherwise where the Vicar is Temporal and removeable And the difference is inter curam actualem habitualem And 't is the Cure that the Rector hath and so hath every Bishop in his Diocess who when he gives Institution saith accipe curam tuam et meam but the Act only extends to the first It appeared also on the other side That the Parson had come once or twice a year Preached and Administred Sacraments and that without the Vicars leave and also paid First-fruits Vpon all this matter the Opinion of the Court was That the Parson had a concurrent Cure with the Vicar and resembled it to the case where there are two Incumbents in one Church and coming in by Admission Institution and Induction the Vicar could not discharge him of the cure of Souls But Donatives which are conferred by Laymen are sinè cura Note The Plaintiffs Counsel would have denyed the Act of 12 Car. to be an Act of Parliament because the were not Summoned by the Kings Writ but the Iudges would not admit it to be questioned and said That all the Iudges resolved that the Act being made by King Lords and Commons they ought not now to pry into any defects of the Circumstance of calling them together neither would they suffer a point to be stirred wherein the Estates of so many were concerned Vid. Hob. 109. 33 H. 6. 19. Notwithstanding all this the Jury found for the Plaintiff It seemed by the Court in this case that Letters of Institution must be under the Episcopal Seal sed vide Cro. lib. 1. 249. Vid. postea The King against Burford HE was Indicted for that he scandalose contemptuose propalavit publicavit verba squentia viz. That none of the Justices of Peace do understand the Statutes for the Excise unless Mr. A. B. and he understands but little of them no nor many Parliament men do not understand them upon the reading of them And it was moved to quash the Idictment for that a man could not be Indicted for speaking◠of such words and of that Opinion was the Court But they said he might have been bound to his Good Behaviour Stones Case A Writ of Priviledge was prayed for Stone an Attorney of the Court who was Copyholder of a Mannor where the Custom was for the Homage to chuse one of the Tenants to collect the Lords Rents for the year following and they elected him But it was said that this might be taken to be parcel of his Tenure for the Lords use to seize the Land for not executing of it and his Priviledge ought not to deprive the Lord of the Service of his Tenant 1 Cro. 422. In the Book of H. 6. The Archbishop of York being bound by Tenure to Collect the Tenths pleaded the Kings Letters Patents in discharge thereof and they were disallowed and tho' Attorneys have had their priviledge where they have been pressed Souldiers as in Venables Case 1 Cro. 8. Co. Entries 436. Springs Case and 1 Cro. 283. and where by Custom it came to an Attorneys turn to be Constable vid. Rolls 2. part 276. yet these are publick Services to which every one is bound but Priviledges may be allowed to exempt particular persons as the King may grant to one that he shall not be of
the Mayor and Burgesses which never had been Mayors and if in regard it was indefinite it should be intended that all the Burgesses were there and it may be the Amotion was by the Vote of such Burgesses as have not been Mayors they being the greater number and the others might dissent as if the Mayor and Court of Aldermen in London were impowered to do a thing and this is done per Cives Londini it cannot be good Sed non allocatur For First it shall be intended That all the Burgesses were there and that they all agreed in the amoving of Braithwaite And if the truth were that the Burgesses which were qualified dissented which must not be presumed they might bring an Action upon the Case for the false Return And further to enforce the intendment as before it is said to be per Majorem Burgenses secundum Chartam If it had been returned that he was amoved secundum Chartam generally that had not been good for there must be the manner returned That the Court may adjudge whether the Authority be pursued Nota hoc It was further declared by Keeling Rainsford and Moreton That the King and Council might Disfranchise any Member of a Corporation And it was said by Rainsford that the Walls of Northampton were ordered to be pulled down by the King and Council à fortiori an Alderman might be displaced upon just Cause and here was no Exception to the Causes returned But to this Twisden said nothing Anonymus Vid. 5 Co. 32. UPon a Fieri facias to Levy a Debt recovered against an Executor the Sheriff returned nulla bona whereupon after a Testatum c. a Writ was awarded to the Sheriff to enquire c. who returned that Goods to the value of the Debt came to the Executors hands elongavit vendidit disposuit ad proprium usum suum convertit And Issue was taken by the Party who came in upon a Scire facias quod non elongavit c. and the Iury found for the Plaintiff And it was moved by Saunders in Arrest of Judgment That there was no proper Issue neither did it appear that there was any Devastavit for the Executor may eloigne and sell the Goods therefore the Return and Issue ought to have been quod Devastavit Sed non allocatur for this tantamounts and the Presidents are so as 't is a good Warrant for a Capias in Withernam when the Sheriff returns that the Defendant in Replevin hath eloigned the Beasts so the Executor ought to be charged de bonis propriis upon his Return Wharton and Brooke IN an Action for Words the Plaintiff declared That she was and had been a long time a Midwife and got divers Gains and that the Defendant to scandalize her in her Profession said of her She is an Ignorant Woman and of small Practice and very unfortunate in her way There are few that she goes to but lye desperately Ill or die under her hands The Court held the Action maintainable But Twisden said this hath been Adjudged Where one brought an Action declaring she was a Schoolmistress and taught Children to Write and Read by which she got her Livelyhood and that the Defendant said of her She was a Whore and that J. S. kept her as his Whore That to slander one in such a Profession was not maintainable without special Damage Sir Thomas Player Chamberlain of London and Jones REsolved by the Judges That the By-Law in London whereby the Number of Carts were restrained was a good By-Law Walter and Chauner IN Trespass the Defendant Iustifies for Damage feasant The Plaintiff in his Replication prescribes for Common in the place where c. in this manner Until the Field was sown with Corn and after it was sown post blada illa messa until it was sown again To which the Defendant Demurs And it was said That this Prescription was unreasonable viz. To have Common in Land sown To which it was Answered and Resolved by the Court That as the Prescription was laid the Common was not claimed until after the Corn was reaped Nota Vpon a Fieri facias the Sheriff Returned That he had taken Goods and that they were rescued from him by certain Persons And it was held to be no Return and that he was to be Amerced Anonymus ONe recovers Debt and then brings a new Action of Debt upon the Judgment The Defendant pleads Tender of the Money before the Action brought uncore prist and the Plaintiff could have no Costs If the Defendant plead in Abatement of the Writ and the Plaintiff Demurs and 't is Adjudged against the Defendant it shall be only quod respondeat ulterius But if he alledge any thing in Abatement whereupon Issue is joyned and tryed and found against the Defendant there the Plaintiff shall have his Judgment to recover his Debt Skier and Atkinson IN an Action upon the Statute of 8 H. 6. of Forcible Entry the Secondary craved the direction of the Court before he could tax Costs and they were doubtful in it and rather inclined that the Plaintiff was to have no Costs But upon the view of Pilford's Case in 10 Co. and the Books there cited they resolved that he should have Treble Costs Crosse and Winter IN an Action for these Words Thou art of Thievish Rogue and didst steal Plate from Wadham Colledge in Oxford The Defendant Iustified for that he did steal the Colledge Plate The Plaintiff Replied De injuria sua propria The Words were alledged to be spoken in London and thither the Venire facias was awarded and there was a Verdict for the Plaintiff It was moved in Arrest of Judgment That there was a Mis-Trial for the Iury ought to have come out of Oxford for the Issue is joyned upon the Matter in the Justification and the Words are confessed Hob. 76. And with this agrees Ford and Brooke's Case in 3 Cro. 361. expresly But it was Resolved by the Court That this was aided by the late Statute made at Oxford being tried by a Jury of the proper County where the Action is laid tho' the Issue upon pleading may arise out of another place and County Note An Act of Parliament was made to continue for Three years and from thence until the end of the next Session of Parliament Vid. Hob. 78. and no longer And it was Resolved that this must be intended a Session which commences after the Three years expired For if a Session should be within the Three years and continue for many years after the Act would continue Note It cannot be called a Session of Parliament unless the King passes an Act. The King and Serjeant UPon a Certiorari to remove a Conviction of Forcible Detainer by the View of two Iustices upon the Statute of 15 R. 2. The Record Returned was Questa est nobis Jana Wood Vid ' quod quidem pacis Domini Regis perturbatores in domum mansional '
if it were Repaired be it by any Body the Plaintiff hath no Damage nor cause of Action But Twisden doubted and afterwards the parties waived their Demurrer and went to Issue Anonymus AN Information was brought upon the Statute of Usury for taking the 30th of May in the 20th year of the King 42 s pro deferendo 25 l for three Quarters of a year viz. from the 30th of August Anno 19. Vpon Not Guilty pleaded it was found for the King and moved in Arrest of Judgment that this was not within the Statute which extends only where there is an Usurious Contract in the beginning and there it makes the Security void Or if there be an Agreement after the Money lent for Forbearance upon Consideration of paying more than the Statute allows for Interest which is punishable in an Indictment or Information but the Money is not lost But in this case the time of Forbearance was past and the party might give what he pleased in recompence for it there being no precedent Agreement to enforce him to it Sed non allocatur For the Court said They would expound the Statute strictly and if liberty were allowed in this case the Brokers might oppress the People exceedingly by detaining the Pawn unless the party would give them what they would please to demand for the time after failure of payment Wingate and Stanton the Bail of William Stanton IT was Resolved That where a Scire facias goes against the Bail in this Court an two Nichils are Returned and Judgment is had thereupon no Writ of Error can be brought in the Exchequer Chamber but in the Parliament only Also after such a Return it cannot be Assigned for Error that there was no Capias awarded against the Principal But in that case the Bail is relievable only by Audita querela But if the Sheriff Returns a Scire feci they may plead it Fitz. N.B. 104. I. Nota A man cannot Release a Debt by his Will The King versus Saunders SAunders was Convicted before two Justices upon the Statute of 32 H. 8. cap. 6. for carrying of a Gun Which being removed by Certiorari was quashed because it was coram nobis Justiciariis Domini Regis ad pacem suam conservand ' wanting the word assignatis Anonymus AN Indictment was quashed because it was Justiciarii ad pacem conservand ' assign ' and not ad pacem Domini Regis neither would ad pacem publicam serve And for another Reason because it was ad Sessionem in Com' tent ' and not pro Com' But if it were ad Sessionem in a Borough Incorporated it were good tho' it were not pro Burgo Maleverer and Redshaw DEbt upon a Sheriffs Bond The Defendant pleads that there was an Attachment issued out of Chancery against him Returnable Octab ' Sanctae Trin ' and the Condition of this Bond was that he should appear Crast Sanctae Trin. and so he pleads the Statute of 23 H. 6. against it for that it was taken for Easiamento favore The Plaintiff Replies That the Writ was Returnable Crastino Sanctae Trin. And Traverses That the Bond was taken for ease and favour To which the Defendant demurs Vid. 11 Co. 10. a. supposing that he should have Traversed that the Writ was Returnable Octab. Sanctae Trin. which is the Matter of the Defendants Bar and the other is but the consequence or Conclusion Et Adjornatur Gregory versus Eades ERror to Reverse a Judgment given in an Inferiour Court where an Assumpsit was brought and the Plaintiff declared upon three several Promises and the Jury found two for him and the other non Assumpsit And Judgment was given for the two that he should recover but no Judgment for the third that he should be amerced pro falso clamore or that the Defendant eat inde sine die And for this Cause Error was assigned But Powys Argued for the Defendant in the Writ of Error that the Judgment should be affirmed as to the Two Promises for which it was perfect and cited Miles and Jacob's Case in Hob. 6. and 2 Cro. 343. where an Action was brought for Words declared to be spoken at several times and several Damages given and Judgment and a Writ of Error brought and assigned for Error that the Words spoken at one of the times were not Actionable which tho' they were not yet the Judgment was Reversed quoad them only But the Court said That it was not like this Case for here the Judgment was altogether Imperfect and so were inclined to Reverse it but gave further time Ante. Anonymus IN Replevin the Defendant avows for Rent Arrear Vpon non concessit pleaded the Jury find for the Avowant The New Statute says That the Defendant may pray that the Jury should enquire what Rent is arrear and that he shall have Judgment for so much as they find Now the Court was moved that this might be supplied by a Writ of Enquiry as if they omit to enquire of the Four Points in a Quare Impedit it may be so supplied 10 Co. Cheney's Case But the Court held this could not be so for the Defendant loseth the advantage of it by not praying of it As where a Tales is granted if it be not Entred ad requisitionem Querentis or Defendentis it is not good wherefore he was bid to take his Judgment quod returnum habeat averiorum at the Common Law Anonymus FOur Executors two of them are under Age quaere Whether they shall all sue by Attorney Note An Infant may bring an Action against his Guardian which pleads any thing to his prejudice Not so of an Attorney Wells versus Wells IN an Assumpsit the Plaintiff declares as Administratix to her Husband who in his Life-time agreed with the Defendant That they should be Partners in making of Bricks for J. S. and after his Death the Defendant promised the Plaintiff in Consideration That she had promised him to relinquish her Interest in the Partnership that he would pay her so much Money as her Husband had been out about the Brick And upon non Assumpsit pleaded it was found for the Plaintiff It was moved in Arrest of Judgment that here was no Consideration for the Plaintiff had no interest in the Partnership which being joynt must survive to the Defendant and she ought to have shewn how she relinquished her Interest But the Court held it a good Consideration for it may be there were Covenants that there should be no Survivorship and the Court will intend after a Verdict that there were which tho' they do not sever the joynt Interest in Law yet they give Remedy in Equity which to debar her self of is a good Consideration and being laid by way of Reciprocal Promise there needs no averment of performance Termino Sancti Michaelis Anno 21 Car. II. In Banco Regis William Bate's Case A Prohibition was prayed to the Commissary of the Archdeacon of Richmond to stay a Suit
against Bates a Schoolmaster who as it was alledged taught School without the Bishops Licence and it was granted because they endeavoured to turn him out whereas they could only Censure him he coming in by the Presentation of the Founder In a Feoffment of Tythes and Lands where there is no Livery if they do adjudge the Tythes to pass notwithstanding there is no Livery a Prohibition will lye In Debt upon a Lease at Will there must be an Averment that the Lessee occupied the Lands But it is otherwise upon a Lease for Years Anonymus THe Court was moved to grant an Attachment against a Justice of the Peace who upon Complaint refused to come and view a Force But the Court denied it and directed the party to bring an Action of Debt for the 100 l Forfeiture given by the Statute in that case It was said by the Court That in an Execution upon a Statute Merchant there is no need of a Liberate as there is upon a Statute Staple And in the Case of a Statute Staple the Conusee can bring no Ejectment before the Liberate neither can the Sheriff upon the Liberate turn the Terre-Tenant out of possession as he is to do upon an Habere facias possessionem Dier versus East AN Action was brought against the Defendant upon an Indeb ' pro diversis Mercimoniis venditis deliberatis to the Wife to the use of her Husband it being for her wearing Apparel And after Verdict for the Plaintiff it was moved in Arrest of Judgment that this Declaration being laid That the Sale was to the Wife tho' it was to the use of the Husband it was not good as if it had been sold to the Servant of the Plaintiff Nevertheless the Court were of Opinion That it being for her Apparel and that suitable to her Degree the Husband was to pay for it as had been Resolved in this King's time in Scot and Manby's Case in the Exchequer Chamber and that the Declaration was well enough Anonymus THe Defendant in an Action of Debt upon a Bond sued out an Injunction in Chancery where after the Case had depended for two years the Court was moved that the Plaintiff might accept of his Principal Interest and Charges The Court said If the Defendant comes before Plea pleaded and makes such a proffer they are ex debito Justitiae to allow it But now he having delayed the Plaintiff in Chancery two years it was in their discretion And the other three against the Opinion of Keeling thought fit to deny it Clarke versus Phillips al' UPon the Trial in an Ejectment the Title of the Plaintiff's Lessor appeared to be by a Remainder limited to him for Life upon divers other Estates and that there was a Fine levied and Proclamations passed but he within the Five years after his Title accrued sent two persons to deliver Declarations upon the Land as the course is upon Ejectments brought The Court Resolved that this was no Entry or Claim to avoid the Fine he having given no express Authority to that purpose and the Confession of Lease Entry and Ouster by the Defendant should not prejudice him in this respect In this Case Keeling and Twisden were of different Opinions in this Point Viz. If he that hath power of Revocation over Lands c. makes a Lease for Life whether it suspends the Power only as a Lease for years would do or extinguisheth it as a Feoffment The King versus Monk al' IN an Information for a Riot it was concluded contra formam Statuti 13 H. 4. which appoints Justice of the Peace upon complaint of Riots to View and Record them And after Verdict it was moved in Arrest of Judgment that this Information was not good it being grounded upon this Statute which only mentions Riots and appoints them to be punished in the manner there expressed But the Chief Justice Keeling was of Opinion that it being a Crime at the Common Law and mentioned in this Statute the Information was well concluded But the other Justices inclined to the contrary Anonymus DEbt upon a Bond Conditioned to perform Covenants in an Indenture The Defendant pleaded That there were no Covenants contained in the Indenture on his part to be performed The Plaintiff demands Oyer of the Indenture which is Entred verbatim and then Demurs which he could not well do before the Entry of it whereby it becomes part of the Bar so the cause of the Demurrer appears Then it was alledged by Saunders whose Hand was to the Plea That the Plaintiff could not have Judgment because he had set forth no Breach But the Court was much offended with him For they held the Plea in Bar meerly for delay and advised against the Statute of Westm 1. Robinson versus Pulford IN an Assumpsit the Plaintiff declared That the Defendant in Consideration that the Plaintiff would deliver such silver Threads and other Wares into the Shop of J. S. that he should require that he would see him paid Now after an Assumpsit pleaded and Verdict for the Plaintiff it was moved in Arrest of Judgment That the Plaintiff had not averred in his Declaration that J. S. had not paid for the Goods For the promise to see him paid was no more than if he had said If J.S. doth not pay you I will in which Case such Averment must have been But the Court Resolved that a Promise to pay and to see him paid was all one and the Averment unnecessary Rushden versus Collins IN an Assumpsit the Plaintiff declared the Consideration to be pro opere preantea facto After Verdict for the Plaintiff it was moved in Arrest of Judgment that opere was too general and might intend so inconsiderable a matter as would not amount to a Consideration for the Plaintiff But they gave Judgment for they said labore or servitio had been adjudged sufficient Lee versus Edwards IN an Assumpsit the Plaintiff declared That in Consideration that he would employ his skill and pains and provide Medicaments for and Cure a certain person of a Pthysick that he would pay what he deserved and lays another Promise at the same time in Consideration as aforesaid and alledges the Promise somewhat varying from the first and concludes with an Averment That he had bestowed his pains and cured accordingly Vpon Non Assumpsit pleaded and a Verdict for the Plaintiff the Court was moved to stay Judgment because the Plaintiff had made no Averment of the Cure upon the first Promise and entire Damages were given so it was ill in all But the Court were of Opinion That in regard he had Averred it upon the second Promise so as it appeared upon Record that the Cure was done it aided the omission of it in the first especially being after a Verdict Nota There is an Inquisition upon every ones death that dies in the Kings-Bench by the Master of the Crown-Office and Coroner Pomfret versus Rycroft IN a Writ of
Covenant the Plaintiff declared That the Defendant demised to him a House with the use of a Pump and that he suffered it to be so out of Repair that it became Useless To this Declaration the Defendant demurs and Counsel being heard on either side divers times the Court delivered their Opinions severally Keeling Rainsford and Moreton held that the Action did lye the Use of the Pump being part of the things demised which Words make a Covenant as in 4 Co. Noke's Case and in 5 Co. Spencer's Case If a man let an House together with Estovers to be taken in the Wood of the Lessor and afterwards the Wood is stubbed up there Covenant lies for the Lessee And Rainsford put this Case If a mans Lets the Middle Rooms of his House to one and the Vpper to another and lets the Roof of the House decay he conceived Covenant would lie for the Lessee of the middle Rooms And if a Parson makes a Lease and then Resigns he is liable to Covenant as in 12 H. 4. And the Lessee would be at a mischief for he should be a Trespasser to Enter and Repair and if the Lessor ousts the Lessee of any of the things demised 't is clear the Covenant lies and this is as much an ouster as can be in this case where the Lessor is possessed himself And so Iudgment was given for the Plaintiff against the Opinion of Twisden who held strongly to the contrary for he said he might have an Action upon the Case and so remedy for his Damage Also he held clearly That he might Enter and Repair as if one Licence another to lay Pipes in his Ground to convey Water he may justifie an Entry to Repair the Pipes And he cited a Case adjudged in 9 Jac. where one by Licence erected a Cock of Hay in anothers Ground And it was held That the Owner of the Soil might put in his Beasts into that Ground but he that had the Licence might by vertue of that Licence also fence in his Hay Quando aliquid conceditur conceditur id sine quo res ipsa uti non potest and he said that he never met with a Case where Covenant would lie but upon an actual ouster either by a Stranger that hath eigne Title or the Lessor himself And this was a non feasans and in that he differenced it from the Case of Estovers being an actual Tort to stub the Wood up and in Covenant upon an ouster of a Term if it be not incurred Iudgment shall be to recover the Term it self as F. N. B. 145. which cannot be in this Case for the Sheriff cannot put him into possession of the use of the Pump neither is it fit that he should recover Damages for all the Term for it may be the Pump will be presently repaired And he conceived that if the Lessor Cuts down Trées growing upon the Land Demised no Covenant lies yet the Trees are Demised with the rest Ante. Anonymus A Draws a Bill upon B. to the use of C. and Vpon Non-payment C. Protests the Bill he cannot Sue A. unless he gives him notice that the Bill is Protested for A. may have the Effects of B. in his Hands by which he may satisfie himself Note It was said if an Action to recover Lands of which a Fine was Levied were brought and discontinued by the Demandant this would not amount to a Claim Glyn versus Smith A Scire facias upon a Record in the Kings Bench where the Action is brought by Original must alledge a place where the Court was holden because 't is Ambulatory and the Writs returnable there are coram nobis ubicunque tunc fuerimus in Angliâ But it is otherwise upon Records in the Common Pleas for that is confined to a certain place by Magna Charta Anonymus IT was moved to quash a Return of a Rescous because it was Mandavi Ballivis who took him virtute Warr ' praed ' And it was said Mandavi did not imply that it was in Writing But the Exception was disallowed by the Court. Anonymus IF the Party that brings an Audita Querela be out of Prison the Court will Bail him though grounded upon a surmise of a matter of Fact as payment c. But if he be in Prison not unless there be a Specialty Parries Case DIvers Deeds and Evidences were shewn to Counsel for his Opinion of the Title to certain Lands which were to be sold He delivers them to one Parry a Scrivener by the consent of the Parties Parry finding a Deed to concern the interest of a third person gives it to him and upon complaint to the Court they commanded him to produce the Deed that it might be delivered back again to the Parties they conceiving it an abuse in his practice which was under the Regulation of this Court Anonymus IN Replevin in the Court at Canterbury the Defendant avowed for Rent Afterward this was removed by the Plaintiff into the Kings-Bench and the Defendant prayed a Procedendo because Canterbury was a County of it self and no Assizes there and so the Cause could not be tried But the Court denied it saying it was their own fault that they had not the Assizes there and every Subject had the liberty of removing his Suit into a Superiour Court Twisden said He had formerly known it to be denied in an Ejectment Girlington versus Pitfield IN an Action upon the Case for malitiously prosecuting of an Indictment of Perjury against him of which he was acquitted upon Not guilty pleaded it appeared upon the Evidence that the Defendant was a Justice of the Peace and procured some as Witnesses to appear against him and his own name was endorsed upon the Indictment to give Evidence The Court agreed that this did not make him a Prosecutor for if a Iustice of the Peace knows any person that can give Evidence against one that is indicted he ought to cause him to do it But it was proved on the Defendant's side That this Indictment was drawn up by an Order of the Sessions Wherefore Keeling Chief Justice said That the Plaintiff deserved to be bound to his Good Behaviour for bringing of this Action Horne versus Ivie IN Trespass for taking of a Ship and Sails the Defendant justified by a command from the Governours and Society of the Trade into the Canaries who were Incorporated by that name and had the sole Trade granted to them with a Forfeiture of all such Goods as should be imported hither from thence by any person not of their Company and that the Ship of the Plaintiff brought Goods from thence To this the Plaintiff Demurred His Counsel did not much insist upon the validity of the Patent because it was a Monopoly though it was said to be also against divers Statutes to Prohibit Merchants frèe trading to forein parts as 9 E. 3. cap. 1. 25 Ed. 3. cap. 2. 11 R. 2. cap. 7 and that there could grow no Forfeiture of
Goods by Patent at least not before Conviction Neither were the words of the Patent very full to this purpose for they were only That they should forfeit such Ships and Goods and be imprisoned as by Law could be inflicted upon the Contemners of the Kings Authority 8 Co. 125. Noy 183. And the Court said the question was Whether the King could Prohibit the Importation of Foreign Goods for if he might the Importation of them would cause them to be forfeited And the Chief Justice said The Ship also in which they were shipped But no Forfeiture of English Goods could grow by Letters Patents And admitting all this for the Defendant yet it was said the Plea was naught First Because he justified by a Command from a Corporation and did not alledge it to be by Deed And it was agreed that a Corporation might employ one in ordinary Services without Deed as to be Butler 18 Ed. 4. 8. Br. Corp. 59. or the like But one could not appear in an Assize as a Bailiff to a Corporation without Deed Pl. Com. 797. 12 H. 7. 27. Neither can they Licence one to take their Trees without Deed nor send one to make a Claim to Lands 9 Ed. 4. 39. They cannot make themselves Disseisours by their assent without Deed or Command one to Enter for a Condition broken 7 H. 7. 9. Rolls Tit. Corp. 514. Again it was said The Plea was double for that the Patent Prohibits the Trading thither and also Importing from thence and 't is laid that he loaded Wines there and brought them hither so an offence respecting both Parts and one would have served But of these matters the Court would be advised Burwells Case UPon complaint to two Justices about a Bastard Child they by the 18 Eliz. order one Reynolds to keep the Child Vpon this Reynolds appeared at Sessions where they vacated the Order and referred it back again to the Justices who do nothing The next Sessions after Burwell is judged the reputed Father and ordered to pay so much a Week to the Parish until the Child was 12 year old This was removed into the Kings Bench by Certiorari And they resolved That the referring back again to the Justices by the Justices at the Sessions was not warranted and that the last Order was insufficient because it was that he should pay the Parish due time until the Child was 12 year old whereas the Father might take it away when he pleased but it ought to have béen that he should allow so long as it should be chargeable to the Parish wherefore they bound the Parties to appear at the next Sessions by Recognizance Anonymus A Man hath a Messuage and a Way to it through anothers Freehoold and 't is stopped then the House is aliened the Alienee can bring no Action for this Nusance before request If a Man lets a House reserving a Way thorough it to a Backhouse he cannot come thorough the House without request and that too at seasonable times Anonymus IF the Husband and Wife be Arrested in an Action that requires Special Bail and the Husband puts in Bail for himself he must put in Bail for his Wife also but if he lyes in Prison the Wife cannot be let out upon Common Bail But it is otherwise if the Husband absconds himself and cannot be Arrested Anonymus IF a Man brings Debt for Rent and upon his own shewing he demands more than is due and upon non debet pleaded the Jury find for him he may remit the overplus and have Judgment for the residue Note One was Committed for sending of a Note to a Juryman after a privy Verdict was given to know what Verdict they gave Parris's Case AN Information was brought against him for that he fraudulenter deceptivè procured one Ann Wigmore to give a Warrant of Attorney to confess a Judgment To this he pleaded Not guilty and upon the Tryal it was debated whether she might be admitted to give Evidence against the Defendant for if he were Convicted the Court said they should set aside the Judgment Nevertheless she was sworn by the Opinion of 3 Judges against Twisden This Suit being for the King Vpon his Tryal he was found Guilty and fined 100 Marks and ordered to come with a Paper on his Hat expressing the offence Note No Writ of Error to reverse a Judgment given in an Action qui tam c. lyes into the Exchequer-Chamber because the King is Party so also upon the Statute de Scandalis Magnactum 1 Cro. Lord Says Case Perill versus Shaw A Scire facias was brought against the Bail who pleade that before the Return a Capias was issued out against the Principal and that he was taken at D. and detained in Prison quousque postea he paid the Money The Plaintiff pleads non solvit Then the Defendant Demurrs And it was adjudged for the Plaintiff for the Defendants Plea was vitious because there is no place alledged where the Money was paid and it is not necessary to be intended to be paid where he was Imprisoned And though the Plaintiff did not Demurr but replied yet when there is a Demurrer the first fault is fatal Sir John Kerle versus Osgood AN Action was brought for these words spoken of him being Justice of the Peace He is a forsworn Justice and not fit to be a Justice of Peace if I did see him I would tell him it so to his Face After Verdict for the Plaintiff it was moved in Arrest of Judgment That these words were not actionable because forsworn doth not necessarily intend any judicial Perjury and there was no Communication of his Office One said of a Justice of Peace He is a Blood-sucker and seeks after Blood if one will give him a couple of Capons he will do any thing and held not actionable because there was nothing to make them relate to his Office Rolls 56 29. Nevertheless the Plaintiff had his Iudgment by the Opinion of all the Court for the calling of him forsworn Justice shews he intended Perjury relating to his Office to which an Oath is annexed Manwood brought an Action for calling of him A corrupt Judge 4 Co. Cases of Slander 1 Cro. for calling of an Attorney A cheating Attorney And Sir John Masham recovered for calling of him Half-eared Justice Vid. Rolls 53. pl. 4. and 4 Co. Stucleys Case And here the latter words viz. That he is not fit to sit upon a Bench Shews that he intended the Scandal in his Office and words shall not be taken in mitiori sensu so far as to draw them from the general Acceptation and sermo refert ad conditionem personae Twisden cited a Case where a Man brought an Action for saying He was a Debaucht Man and not fit to be a Justice of the Peace and not maintainable because spoken of the time past If it had been He is Debauched he said the Action would lie Hill versus Langley DEbt upon a Bond to perform an
Award After nullum fecere Arbitrium pleaded The Plaintiff replies and sets forth That they submitted to the Award of 4 so that they made it by the 16th of Nov. and signified it under the Hands and Seals of two of them and then alledges the Award under two of their Seals to which the Defendant demurred conceiving the Award to be void because the submission was to four But the Court gave Iudgment for the Plaintiff according to the Cases in 2 Cro. 276. and 400. Anonymus IN an Indictment for the using of a Trade contrary to the Statute of 5 Eliz. It was said That to keep a Shop within a Country Village was not within the Statute and it were very inconvenient that the Inhabitants must go to some great Town upon every occasion And it was also Juratores dicunt super Sacramentum suum and not adtunc ibidem jurati If a Statute appoints an Indictment to be taken at the Quarter Sessions the Caption must be Entred ad Quaterial ' Session ' c. for ad General ' Session ' pacis will not serve Jackson versus Gabree JAckson took out a Capias ad satisfaciend ' against Gabree and his Wife the Gaoler lets the Husband escape The Court was moved that the Wife might be discharged alledging that the Husband took no care of her but let her lie there in a very necessitous Condition They were doubtful what to do in it at the first motion but did afterwards resolve That unless the Plaintiff would get the Husband taken again as he might do they would discharge the Wife and they said the Escape of the Husband was the Escape of the Wife Anonymus AN Infant brought an Assumpsit by his Guardian and declared That whereas the Defendant entred into his Close and cut his Grass that in consideration that he would permit him to make it Hay and carry it away he promised to give him six pounds for it and he also declared for six pounds Debt more that he ought him Vpon this Declaration the Defendant demurred supposing it to be no Consideration for the Infant was not bound by his permission but might Sue him notwithstanding and then the promise to pay six pounds Debt was not good because not declared how indebted But the Court gave Iudgment for the Plaintiff Sir Henry Frederick Thynne versus Sir James Thynne PAsch 13 Car. 2. B.R. Rot. 448. Vpon a Special Issue directed out of Chancery the Case was thus One was seized in Tayl of the Mannor of B. and of two Closes which in reality were not part but reputed part thereof and suffered a Recovery only of the Mannor with the Appurtenances and whether the Recovery was a Bar as to the two Closes was the Question And in the 16 year of this King it was resolved by all the Court and Hide Chief Justice delivered the Opinion of the Court That the Lands reputed parcel of the Mannor should pass by reason of the Deed of Covenants to lead the uses which explained the intent Dier 223. 1 Cro. Sir George Symond's Case Hob. 177. Dier 376. Long 5 to E. 4. 303. 6 Co. Sir Moyle Fynch's Case Modern Rep. 250. Termino Sancti Hillarij Anno 21 22 Car. II. In Banco Regis Wilbraham versus Snow IN an Action of Trover the Plaintiff declares That he was Owner and possessed of certain Goods and sets them forth particularly and that they came to the Defendants Hands who converted them c. The Defendant pleaded Not guilty and the Jury find this Special Verdict That the Plaintiff was Sheriff and that he took the Goods into his Possession by force of a Fieri facias and that the Defendant who was also Defendant in the Execution took them away And then they demand the Iudgment of the Court if the Plaintiff could maintain this Action It was said that he might Because he was answerable over to the Plaintiff in the Execution at whose Suit he took them and could not return that they were taken away And if he returns that he hath taken Goods sufficient and after looses them he is bound to answer the value as returned A Bailée of Goods shall bring Trespass quare bona sua cepit And Rolls 5. a Carrier from whom Goods are taken may bring Trover But it was argued on the other side That the property is in the Defendant notwithstanding the seizure Dier 99. a. and Yelverton 44. And the Sheriff had but an Authority in Law to Sell as Commissioners of Bankrupt have of the Estate of the Bankrupt per 13 Eliz. 7. or Executors upon a Devise that they shall Sell Land c. but Trespass he might bring because of the Possession but Trover cannot be maintained without property But the Court held that the Action was maintainable And that the reason was the same as in the Case of the Carrier and also held that the Defendants Property ceased by the Seisure And also that if a Man becomes a Bankrupt after that the Commissioners have granted over his Goods he cannot meddle with them 1 Cro. 106. So by the Opinion of Keeling Rainsford and Moreton haesitante Twisden Iudgment was given for the Plaintiff Gavell and his Wife versus Burket AN Action was brought for these Words spoken of the Wife You are a Pimp and a Bawd and fetch young Gentlewomen to young Gentlemen and Declared of a Special Damage The Jury gave a Special Verdict and found the Words spoken but not the Damage as the Plaintiff had Declared Now whether the Words were Actionable of themselves was the Question And it was Agreed that no Action would lye for calling one Bawd or Pimp 1 Cro. 286 Dimock's Case Rolls 44. pl. 10. But to say one keeps a Bawdy-house it will lye 27 H. 8. 14. an Indictment lies for Keeping of a Bawdy-House because it is a Common Nusance but here the subsequent words expound in what sense the former words should be taken that is To bring Gentlewomen to Gentlemen for Bawdry which is as much as keeping a Bawdy-house and 1 Cro. was cited where Judgment was given for these words Thou keepest a House worse than a Bawdy-house and keepest a Whore in thy House And in 3 H. 7. it is said that Constables ought to apprehend Bawds But the Court inclined that the Action would not lye for a Bawd was not punishable in our Law unless for Keeping of a Bawdy-House it being a Crime of Ecclesiastical Conusans Sed Adjornatur Thomlinson versus Hunter TRespass Quare clausum fregit arbores succidit ad valentiam decem librarum 5 Co. Player's Case To which the Defendant Demurred generally The Plaintiff prayed Judgment for Breaking of his Close but as to the other the Declaration was Insufficient because not expressed what kind of Trees Anonymus A Writ of Error was brought upon a Judgment given in Ireland It was held that a Day ought to be given by Rule of Court to the Plaintiff to assign his Errors or else to
to the same purpose and that a Fine doth not bar an Interest which is not divested He quoted also the 1 Inst 388. 9 Co. 106. and 5 Co. Saffin's Case where a Fine and Non claim shall bar the Interest of a Term yet it appears in 2 Cro. 60. that two Judges were against that Iudgment given by the other three 2 Cro. 659. Tenant at Will makes a Lease for years and it was held to be no Disseisin volens nolens to him that had the Inheritance And for Isham and Morris's Case 1 Cro. 74. it was the Judges Opinion upon Evidence and there a Fine was levied of the Inheritance which passed the Trust inclusively but this Fine was only to establish an Interest for 54 years Then he Argued that the Inconvenience would be very great to Purchasers who often keep such Leases and Interests on Foot tho' they buy the Inheritance if they should be all barred by Levying of the Fine The Solicitor è contra He agreed that a Fine could not bar any Interest which was not divested at the time of the Fine He Argued first That the Cestuy que Trust was not Tenant at Will for a man shall not be Tenant at Will against his own Conveyance unless by Construction of Law to avoid a Tort as in Littleton's Case where the Cestuy que Use enters upon his Feoffee But tho' the Lessor hath a right to the possession before the Entry of his Lessee for years yet when the Lessee Enters as 't is found in out Case he doth as much as declare that Cestuy que Trust shall not be Tenant at Will Indeed the Bargainee of an Estate for years is in actual possession by force of the Statute yet the Bargainor in case of a Mortgage may Enter to hold at Will because there was no Act done to express his dissent He agreed also that no Disseisin was wrought but there may be an Expulsion without a Disseisin as Hob. 322. where it is said If the Lessor puts out his Lessee for years there is no Disseisin committed and yet the Lessee hath lost his Estate and hath but a Right to it and that whether he will or no And if he were Tenant at Will he by making this and divers Leases before hath absolutely determined his Will if Tenant at Will be ousted by a Stranger and he in Reversion disseised he may enter again not where he is the Wrong-doer himself for that were to make him Tenant at Will against his Will If Tenant at Will makes a Lease for years and the Lessee enters the Tenant at Will is the Disseisor 2 Cro. 660. 3 Cro. 830 5. E. 42. and Tenant at Will is intrusted with and hath power over the possession And where it was said it should be in the Election of the Lessee for 100 years to take this for an Ejectment or no he Argued that it ought clearly to be in the Election of the Lessor For first it was his own act and therefore he could best explain quo animo hoc fecit and that his antecedent Acts had sufficiently done especially being Cestuy que Trust and having also the Inheritance in him and he insisted very much upon the Notice that the Law takes of such an Interest tho' relievable only in Equity 7 H. 5. 3. Cestuy que Use of a Mannor to which an Advowson was appendant was Outlawed the Church became void the King brought a Quare Impedit 2 Cro. 512. A Trust of a Chattel resolved to be forfeit by Attainder Hob. 214. in that case the King shall have the Land it self and Process shall issue out of the Exchequer to seize the Land it self which shews that it hath a legal influence upon the Land therefore he and not the Trustee ought to have the Election If Cestuy que Use had made a Lease for years this had been a Disseisin until 1 R. 3 5 H. 7. 56. 8 H. 7. 8. A Lease of two Acres habendum the one for Life that other in Fee to the use of another shall not the Cestuy que Use determine in which the Inheritance shall be Again It is agreed that this Fine conveys away the Trust shall the Law strain to save the Interest of the Trustee to occasion a Chancery Suit And the Judges ever Expounded the Statute of 4 H. 7. strictly to bind the Right of Strangers Leonard 99. It was the Chief Baron Manwood's Opinion That he that had a future Interest to Lands of which a Fine was Levied ought to have five years after his Interest came in esse neither is there any reason to favour long Leases By the Ancient Law a Lease for above 40 years was void Mirror 164 293. 1st Inst 46. they are never without suspicion of Fraud and 3 Co. Twyne's Case that which is called a Trust is in plain English a Fraud and as this is found it appears by the Circumstances to be almost Fraud apparent And as to the Inconvenience which was alledged would come to Purchasors who desire to keep Leases on foot he Answered That might be prevented by claiming within five years and it would be mischievous to Purchasors if it were otherwise to have such Leases set up against their Titles Postea Note One makes a Lease wherein the Lessee Covenants to Repair and then bargains and sells part of the Reversion He shall have an Action of Covenant per 32 H. 8. Bosvile versus Coates IN Debt upon a Bond with Condition That the Obligor should bring in the Son and Daughter of J.S. at their full Age to give such Releases as a Third person shall require The Defendant pleads That the Son is alive under Age at Doncaster To which the Plaintiff demurs and held he might for it must be taken at their respective Ages Vid. 5 Co. Justice Wyndham's Case Crispe and Jackson versus The Mayor and Commonalty of Berwick IN a Writ of Covenant the Plaintiffs declared upon an Indenture of Demise of an House from the Defendants wherein they Covenanted That the Plaintiffs should enjoy it without the Interruption of any Persons whatsoever and assigned for Breach That J. S. entred and dispossessed them at Berwick Vpon which the Defendant takes Issue Whereupon the Plaintiff suggests That such a place in Northumberland is the next to Berwick and the Venire is awarded to the Sherriff accordingly and a Verdict was found for the Plaintiff It was moved by Jones in Arrest of Judgment That here was a Mis-Trial not aided by any Statute for the last Act which is the largest remedies all Trials so as they be in the proper County but this is not so And he said It ought to have been tried where the Action was laid As when an Action is brought upon a Chartr-Party and a Breach is assigned in a Foreign Kingdom it shall be Tried where the Charter-Party is dated and here the Covenant bore Date at the Castle of York and there the Trial ought to have been 6 Co. Dowdale's Case and
the Parson shall not take them from him for it shall be taken to have commenced since the Endowment Note If the Matter concerns the whole County it is to be Tryed in another County which is indifferent Hall versus Philips AN Information was brought for the forfeiture of a certain quantity of Brandy and sets forth the two Acts 13 14 Car. 2. c. 23 and 24. of Excise upon that and other Liquors and then the additional Act of 15 Car. cap. 11. wherein it is Enacted That no Foreign imported excisable Liquours shall be Landed c. before due Entry be first made thereof c. or before the Duty of Excise due and payable for the same be fully satisfied and paid and that every Warrant for the Landing or Delivery of any such Foreign Liquors shall be Signed by the Hand of the said Officer c. upon pain that all such Foreign Liquors as shall be landed c. contrary to the true intent and meaning thereof or without the presence of an Officer or Wayter for the Excise or the value thereof shall be forfeited and lost the one Moiety to the King the other to him which shall seize inform c. And avers that this Brandy was Landed the Duty not fully satisfied and paid and without the presence of an Officer or Wayter for the Excise but doth not aver that a due Entry was not first made thereof Whereupon it was moved after a Verdict for the Informer in Arrest of Judgment that if either the Duty were paid or Entry made or the Landing were in the presence of an Officer it satisfied the Act which is in the Disjunctive and or shall not be taken Conjunctive unless the words are of like nature as 1 Mar. cap. 3. Maliciously or Contemptuously disturb Preachers especially in a Penal Law Besides if the Act required these three things should be done then payment would not suffice without the presence of an Officer at the Landing the like words are taken Disjunctively in Renigers Case Pl. Com. But it was said on the other side That the word or must be taken here in the Conjunctive and that for the apparent inconvenience that would follow and that the Statute intended all thrée should be performed and that an Entry should not suffice without payment or agreement with the Officer which Tantamounts For otherwise this Act which was made to be further remedial to the King would rather disappoint this Revenue of Excise given by former Acts which did also require an Entry to be made but this Act adds the Penalty for Non-entry and this Entry is to be made for a check upon the Officer that he accounts right to the King 2 Cro. 322. Also it appoints Landing in the presence of the Officer that it may be observed whether more be Landed than is contained in the Warrant for Landing but never meant that Entry should suffice without payment for so if Party be a Foreigner or Insolvent the King loseth his Duty And the Court gave Iudgment for the Informer But said they would have staied until the next Term but that great mischief might be done in the interim if it should be known that such a doubt sticks here and they would not give any incouragement to the lessening of the Kings Revenue Anonymus IN an Indictment upon the Act for coming within five Miles of a Corporation It was moved that no Indictment lay upon it because the Act appoints a Penalty of 40 l to be recovered by Action of Debt Bill Plaint or Information Sed non allocatur For when a Statute makes an Offence the King may punish it by Indictment but an Information will not lye when a Statute doth barely prohibit a thing vid. 2 Cro. 643. 3 Cro. 544. Note It was resolved at Serjeants Inn That when a Penalty is to be divided viz. To the King the Poor and the Informer If the King along Sue so that there is no Informer yet the Poor shall have their part Adrian Lampereve and other Frenchmens Case A Motion was made by the Solicitor upon a Special Direction from the King in behalf of the said Lampereve and others Frenchmen to have a Certiorari to Bedford Gaol where they were committed for Robbery Keeling Chief Justice I lately attended his Majesty about this matter and I thought he had been satisfied with what I then said and now repeat viz. That if we should remove them now we should discharge his Majesties Justice for there is no Indictment found and none can be found but at Bedford and the Prosecutors and Witnesses are there but he might have it Tryed at the Bar if he pleased so the only way is to let them stay at Bedford till the Assizes and then if Prosecutors appear not or an Ignoramus be found they will be discharged by Proclamation and if the Indictment be found then the Judge may take a new Recognizance of the Prosecutors to appear and Prosecute here and you may have a Certiorari now to deliver there or you may have it there from my Brother Rainsford who goes that Circuit to remove all up hither Sollicitor I suppose this will satisfie Curia We must acquit our selves of the Kings Justice In Easter Term following they were brought up hither and being Arraigned upon the Indictment they pleaded Not guilty and some of them desired to be Bailed and the Court said they might but it must be done in the Court because the Bail must be bound Body for Body and they required 4 Men to be Bail each worth 300 l Body for Body and in no sum certain They were afterwards Tryed per medierat ' linguae and some of the Aliens were not Frenchmen and most of them dwelt in Middlesex Lady Baltinglass's Case THe Court denied a Tryal at the Barr because the Costs were not paid upon other Tryals which went against her in other Courts which the Court here would take notice of Articles were exhibited against a Register of an Ecclesiastical Court for Misdemeanours done by him in his Office He moved for a Prohibition but it would not be granted unless they examin him concerning the Articles upon his Oath Wright and Johnson Assmpsit To deliver a Gelding in as good plight as he borrowed him and Avers that he did not deliver him at all A Verdict was had for the Plaintiff yet Iudgment was given against him because the Breach was not laid as the Promise is Playters versus Sheering IN a Replevin removed by Recordari There was a Non-suit for want of a Declaration and thereupon the Defendant made a Suggestion and took out a Writ of Enquiry upon 17 Car. 2. cap. 7. The Plaintiff moved that this might be set aside because the Non-suit hapened through the sudden Sickness of the person emploied to Prosecute Curia This new Statute having taken away the Writ of Second Deliverance hath made the Plaintiff remediless unless we help him therefore we will endeavour it as far as we can Let
c. and in Replevin the Avowant is Actor and in Suffering of a Recovery the Tenant is the main Agent being to his use in no other be declared And it was an Error assigned in the Lord Newport and Mildmay's Case as appeareth by the Record yet it seems it was taken to be so plain as not fit to be insisted on Wherefore there is nothing of it in the Report of the Case 1 Cro. 224. yet there was all endeavour imaginable used to Reverse that Recovery and divers other Presidents there are of the same manner of Entry And if it can appear to the Court that there was a Guardian admitted the Form of the Entry shall not be so severely Examined as in the 4 Rep. 53. where there was no Entry of any Admission of the Guardian by the Court at all yet it appearing quod venit per Guardianum the Court would not Reverse the Judgment for Error And for the Book of the 2 Cro. 641. there were other Reasons which Reversed the Judgment and the Admission ad prosequendum was not mentioned until the Court upon the other Matters had Resolved the Reversal And the Books there cited do not at all prove it to be Error And ad sequend ' ur Guardianum is not at all amiss for Ut many times notes an Identity Seisitus ut de feodo makes Conusans ut Ballivus c. And for the Entry of the Appearance it may be taken that the Guardian came in proper Person and so it ought to be But if propria persona refers to the Infant he must have Reversed the Recovery during his Nonage And so Twisden saith it hath been resolved in this Court lately Vid. Roll's 1st Part 171 and 2d Part. 573. Anonymus SCroggs the King's Serjeant moved to have at Trial at Bar in an Indictment of Perjury and for some further Time urging that it was the King's Case The Chief Justice said The King was no otherwise concerned in it than in maintenance of the Common Justice of the Realm It was usually the Subjects Interest and His Prosecution and therefore must not deviate from the Course in Civil Causes and not to be resembled with Causes wherein the King is concerned in point of Interest Anonymus A Prohibition was prayed to stay a Suit for Tythes of Wood. The Plaintiff suggested That he had a House in the Parish and that the Wood was cut for Fuel burnt in his House But the Court said that this would not serve unless it were expressed that the House was for maintenance of Husbandry by reason of which the Parson had Uberiores Decimas Barrett versus Milward al. A Scire facias was awarded against the Defendants upon a Recognizance which they entred into as Bail for a Plaintiff in a Writ of Error that he should prosecute it with effect or pay the Money if the Judgment were affirmed They plead That he did prosecute it with effect and that the Judgment was not yet affirmed The Plaintiff Replied Protestando that they did not Prosecute with effect Pro placito that the Judgment was affirmed by the Justices of the Common Bench and Barons of the Coif Et hoc paratus est verificare per Recordum To which the Defendants Demurred generally Because it was not alledged That there were Six Justices and Barons present when the Judgment was affirmed For 27 Eliz. c. 8. which gives them Authority requires that there should be Six at the least Sed non allocatur For the Defendant should then have pleaded Nul tiel Record ' for if there were not Six their Proceedings were coram non Judice Nota If a Certiorari be not Returned so that an Alias be awarded the Return must be as upon the first Writ and the other must be Returned quod ante adventum istius brevis the Matter was certified Gybbons versus North. IN an Assumpsit the Plaintiff Declared That whereas at the Defendants Request he was bound with him in a Bond of 200 l he in Consideratione inde promised to save him harmless and obliged himself his Heirs and Executors in 200 l to the performance of it and the Money not being paid the Defendant did not save him harmless But per debitum legis processum he was forced to pay the Money The Defendant Demurred because he did not alledge That he did not pay him 200 l For obliging of himself in the penalty of 200 l to save him harmless He hath election either to save him harmless or pay 200 l But the Court gave Judgment for the Plaintiff for there is no Election in this case being no more than an ordinary Promise to Save harmless And this Action is brought upon the Plaintiffs Dampnification which is a Breach and he doth not demand the 200 l Also a Verbal Contract cannot create a Penalty to oblige the Heir Jordan versus Forett ERror to Reverse a Judgment given against an Executor in Debt in the Common Pleas where the Executor pleaded divers Judgments formerly obtained against him and the last he pleads thus That one Eliz. H. in eadem Curia implacitasset c. and Recovered in Trinity Term but expresses not in what Year and there upon a general Demurrer Iudgment was given for the Plaintiff and it was assigned for Error That this Incertainty in respect of Time was good at least upon a general Demurrer But the Court affirmed the Judgment For if such Pleading should be allowed it would be very inconvenient to the Plaintiff and very difficult to find out the Record and then how should he plead that it was kept on foot by Fraud or such like But if it had been ascertained when the Plea commenced tho' no time alledged when the Judgment was obtained yet that would have been good for the Continuances would have directed to the finding of it Twisden said That the Course in this Court was a in Scire facias upon a Judgment to say quod cum recuperasset without alledging any Time But in the Common Pleas they set forth the Term. Putt versus Vincent IN Debt for 3900 l the Plaintiff declared upon Articles of Agreement wherein Putt Covenanted to Convey certain Lands to one Nosworthy and there are also certain Covenants from Nosworthy to the Plaintiff and from the Defendant Vincent who after Imparlance pleads that Nosworthy sealed the Deed and is still alive To which the Plaintiff Demurred And it was alledged by Jones That this being after Imparlance could not be pleaded it being only in Abatement and that he Commences his Plea Actio non as if it were a Plea in Bar. And the Court inclined that it was insufficient for both Causes But then it was said It appears by the Deed to which Nosworthy was a party that the Plaintiff could not sue the Defendant alone and so of his own shewing he could not have Iudgment But it was answered That it did not appear that Nosworthy ever Sealed the Deed. Et Adjournatur Postra Gifford versus
is a continuing Body and no Member thereof can be displaced at the will of the rest but it is otherwise in Case of such an Office as this the Cases cited agree if it had béen a Common Council Man as was returned at first And here they said it were fit a Scire facias went out of Chancery to Repeal these Letters Patents as unreasonable If they had béen to chuse a Town Clerk generally it had béen for his life or if to chuse one provided they might turn him out at their Will and Pleasure yet they could not have done so without Cause as Twisden said But here the Authority is absolute to chuse him Durante bene placito which it was said was not so much to be admired at for the Offices of Judicature in the Courts at Westminster are so determinable Foot versus Berkley Pas 19 Car. 2. Rot. 1618. In a Writ of Error to Reverse a Judgment given in an Ejectione firmae in C. Banco The Case upon a Special Verdict was this The Prior of Bodmin was seized in Fee and 29 H. 8. demised to John Monday and others for 96 years at the Rent of 60 l per annum The Possessions of the Priory afterwards came to the Crown and descended to Queen Eliz. Who in the 42 year of her Reign granted to John Monday for 30 years Habendum after the end of the former Term under the same yearly Rent The Inheritance was afterwards conveyed to divers in Trust for the late Queen Mother who in 14 Car. 1. demised to Francis Godolphin in this manner reciting that Queen Eliz. in the 32 year of her Reign whereas it was the 42 demised to J.M. and did not recite for what Term to Commence after the Expiration of the Term for 96 years granted by the Priour reserving 60 l Rent did Demise to the said Francis for 21 years to Commence after the end of the Term granted by the said recited Letters Patents of Queen Eliz. They find no Lease made in the 32 year of the Queen c. Now whether Godolphins Lease should begin from the making which if it should it is for some year expired or to expect while the Lease made in 42 Eliz. should determin was the sole Question And by the Opinion of the Court of Common-Pleas Tyrrel only to the contrary It was adjudged That the Lease should Commence presently upon the making And a Writ of Error being brought after divers Arguments at Bar it was this Term argued by the Court And resolved that the Iudgment should be affirmed They held that every Lease for years must have a certain beginning and a certain end either expressed or referred to something which they make it so And here it is referred to a Lease whereas there is not any such Lease therefore it is to begin presently as if it had been to Commence from an impossible date Co. Litt. 46. B. A Lease made from the 30 of February shall Commence presently and it is the same thing when to begin from the end of a Lease misrecited for it is no more than to refer it to nothing Br. Leases 62. 1 Cro. 220. Miller and Johns Case Dier 116. 2 Roll 55. 4 Rep. 53. Palmers Case Bendlowes Rep. 35. 1 Anderson 3. Leonard Mounts Case And whereas it was objected in this Case That the Date is not material and that there was enough expressed to ascertain what Lease the Parties intended and the Case in Hob. 129. was cited Where one made a Lease Habendum à festo purificationis and then reciting by his Deed that he had made a Lease to Commence à festo Annuntiationis granted the said Reversion The Court held this there a good Grant It was answered That the Lease here was tied up by such precise words to begin upon the Determination of the Lease granted by the said recited Letters Patents that this cannot be referred to a Lease which varies in the Date though agreeing in other Circumstances yet the certainty of the Term is not recited neither And though a Lease is good without a Date yet when a Lease is recited to be of one Date a Lease which bears another Date cannot be said to be the said recited Lease And the Case in Hobart is very different from this Case for in the Grant of the Reversion the misrecital of the particular Estate is not material in the case of a common person so long as he hath a Reversion in him But here on Term is recited to give a certainty of Commencement to another and if here be none such it must begin presently so that however the Grant is good also here either to pass the Reversion with Attornment or being by Indenture to take effect upon the forfeiture c. of the former Term Pl. Com. 433. Twisden said Walter Chief Baron reported this Case to be adjudged where one made a Lease to begin from the Nativity of our Lord last past It was resolved it should begin presently and not from Christmas for that was the feast of the Nativity and to take it from the Nativity the time would have béen effluxed many times over and that in the Kings Case such a Lease would be void But here if the Case were thus that A. had made a Lease to B. for 30 years to Commence from the 1st of March and then A. reciting the former Lease to be made the 1st of May for 30 years had made another Lease to Commence from the end of B's Lease the Lease should have Commenced after the former ended But it cannot be so in the Case in Question Because tied up to the said recited Deed. Another Objection was Because this being by Indenture the Parties should be estopped to say that there was no such Lease and this was much insisted on by Serjeant Maynard in his Argument for the Plaintiff To which it was answered That this being by Recital could work no Estopel Again the Question is not now between the Parties to the Lease and though they and their Assignees might be bound in pleading yet being in a Special Verdict the Court shall judge according to the Truth And so is Isham and Morrice's Case 1 Cro. 77. And Rawlins Case 4 Rep. is between the Parties themselves So they all resolved that Iudgment should be affirmed The King versus Bates ERror to Reverse a Judgment given in an Information at the Assizes in Norwich because the Information was Exhibited before Justice Moreton and Justice Rainsford and the Trial and Judgment was at the next Assizes before two other Judges And it was Objected by Pemberton That their Commission of Oyer and Terminer doth not empower them to determine any thing which was not Commenced before them and so is Bro. tit Commission 24. And in the 4th Inst my Lord Coke saith that the Statute of Edward the 6th extends only to Justices of Gaol-delivery sed non allocatur For the Court said the Statute extends to hath and so hath been the
a Suit And to stay a caussess Suit can be no Consideration 1 Cro. 804. Yelv. 84.184 as the Case of Smith and Johns 2 Cro. 257. where one having married an Executrix after her decease promised J. S. that if he would forbear a Suit against him for a Legacy he would pay it It was held to be a void Promise being in no wise liable to be sued after the Death of his Wife And the Opinion of my Lord Coke 9 Rep. 94. in Bane's Case is That an Executor shall not be charged with such Promise unless he hath Assets But the Court Resolved for the Plaintiff For it is not material whether the Defendants had Assets or no at the time of the Promise for by the Promise they caused the Plaintiff to desist who peradventure at that time was prepared to prove Assets and relying upon such Promise might be much to his prejudice if he could not afterwards recover upon it But the Chief Justice said If it had appeard upon the Declaraton that there were no Assets the Plaintiff by shewing that would have destroyed his Action Vere versus Smith IN Debt upon an Obligation The Condition recited that the Defendant served the Plaintiff as a Brewer's Clerk and that if he performed such Covenants c. The Defendant pleads performavit omnia The Plaintiff Replies That one of the Covenants was to give the Plaintiff a true Account of all such Moneys as the Defendant should receive c. whensoever he should be thereunto requested and alledged that 30 l came to his hands and that he requested him to give an account of it which he refused to do The Defendant Rejoyns confessing the Receipt of the said Money but saith That before Request made by the Plaintiff he laid it up in the Plaintiffs Warehouse and that certain Malefactors to the Defendant unknown stole it away hoc paratus est verificare And to this the Plaintiff Demurs generally And Jones Argued That the matter contained in the Rejoynder was a Departure from the Bar for it doth not amount to an Account but rather an Excuse or Discharge of himself why he should not account Again He ought not to have averred his Plea but to have concluded to the Country For the Plaintiff in his Replication having alledged That he gave no Account and the Defendant in his Rejoynder setting forth That he did give an Account there is an Issue joyned wherefore it ought to have been concluded de hoc ponit se super Patriam But these Matters were Over-ruled For as to the first the Court held it no Departure but a Fortification of the Bar for shewing that he was Robbed is a giving an Account And as to the second the Conclusion is proper because the Defendant alledges New Matter and therefore ought to give the Plaintiff liberty to come in with a Surrejoynder and answer to it for he doth not only say that he gave an Account but sets forth the Special Matter how Wherefore the Court gave Judgment for the Defendant Note A Clerk of the Court must appear de die in diem to any Matters against him on the Crown side as well as on the Plea-side Reynell versus Heale AN Information was brought upon the New Statute against Conventicles for that the Defendant being a Justice of the Peace in Devonshire and Complaint being made to him by Reynell of a Conventicle he refused to go to the place to suppress it and sets forth three Omissions of that kind and that the Statute Enacts That a Justice of Peace for every such neglect of doing his Duty shall forfeit 100 l the one Moiety to the King the other to the Informer unde actio accrevit for 100 l to the King and himself The Defendant pleads non debet the said 100 l to the Informer nec aliquam inde parcellam de hoc ponit se super Patriam praedict ' Reynell similiter And upon this Issue Verdict was given for the Informer Jones moved in Arrest of Judgment That he conceived there were no words in the Act to oblige the Justice of the Peace upon such Information to go in person to the Place where such Meeting is and 't is not said here that he refused to grant a Warrant or the like But he did not much insist upon that but moved that the Issue was not well joyned for it is only between the Informer and the Defendant and so the Plea is quod non debet to the Informer and no mention of the King whereas the Action is qui tam and the Act gives the Moiety of the Penalty to the King The Court said nothing to the first matter but held clearly that the Issue was misjoyned and said that a Repleader ought to be awarded Polexfin and Ashford versus Crispin HIll 22 23 Car. 2. Rot. 225. The Plaintiff brought Trespass Quare pisces suos cepit in separali Piscaria Vpon Not Guilty pleaded and Verdict for the Plaintiffs it was moved in Arrest of Judgment that the Plaintiffs ought not to have called them Pisces suos unless they had been in a Trunk or Pond For there is no more property in Fishes in a Several Piscary than in a Free Piscary In an Action for taking of Conies in a Warren 5 Co. 34. b. F.N.B. 192 193. 2 Cro. 195. he shall not say Cuniculos suos and this is such a default as the Verdict shall not aid Sed non allocatur For the Chief Justice said it might be intended a Stew Pond which is a mans Several Piscary and after a Verdict the Court shall admit any Intendment to make the Case good And Twisden cited a Case which was in Trespass Quare Phasianos suos cepit and the Plaintiff had Judgment after Verdict for it shall be intended they were dead Pheasants And the Case of Child and Greenhill 3 Cro. 553. is the same with this But the Court held that it had been good upon a Demurrer by reason of the local Property And so is the Register Hoskins versus Robbins IN Replevin the Defendant avowed for Damage feasant The Plaintiff Replies and saith That the place Where is parcel of the Waste of such a Mannor within which Mannor there are Copyholds demisable time out of mind and that the Copy-holders have had time out of mind the sole Feeding of the said Waste and that J. S. being a Copyholder of the said Mannor Licensed him to put in his Cattel The Defendant traverses the Prescription and it was found for the Plaintiff Levins moved in Arrest of Judgment that Prescription to have the sole Feeding 1 Cro. 434. 2 Cro. 256. whereby the Lord shall be excluded from all the benefit of his Soyl is not allowable and the Lord cannot in this case ever make any profit of the Mines for he may not Dig. 'T is true a Prescription may be to have the sole Feeding from such a Day for there the Owner hath his time also
upon that Attainder was penned as amply as this of 12 Car. and the Case of Warner and Harding Latch 25. is very like this W. Shelley enfeoffed divers to the use of himself for Life and afterwards to divers others upon Condition that if a Ring were delivered by the said William Shelley declaring that he intended those uses should be void that then c. it was resolved that nothing was forfeited but during his Life Rainsford I shall speak nothing to the Fraud because that is a pure matter of Fact which is to be found by the Jury and cannot in any Case be presumed by the Court. I am of Opinion that the Judgment ought to be affirmed The power of altering the Trusts reserved by the first Proviso is inseparable from the person of Simon Maine for it is to be by his Will in Moor 193. the Lord Pagetts Case It is resolved that inseparable Powers are not forfeited upon like words as are in this Act and so the second Proviso limits to him a double Power First Of revoking the old Trusts Secondly Of limiting new But this is to be done by Writing under his Hand and Seal in the presence of two Witnesses so the performance of this also is personal The D. of Norfolks Case is the very same unless for that it is there under his proper Hand and Seal and here under his Hand and Seal which certainly is all one But admitting this Power were forfeited yet it is not found that ever it was executed after it come to the King which must be before any Estate could come to the King therefore in Englefields Case it was found that a Ring was tendred in the behalf of the Queen And whereas it was objected That he had jus disponendi and therefore might Forfeit as a Man shall a Term which he hath in right of his Wife as Dame Hale's Case in Plowden is resolved I answer That here he hath not jus disponendi but rather potestatem disponendi but that is qualified and to be executed by certain Circumstances which must be performed to give it effect Twisden As to the Fraud I cannot see how the Jury could have found this fraudulent Settlement made to prevent a Forfeiture enacted by Parliament 20 years after which surely could not be without the Spirit of Prophecy I am of the same Opinion as to the matter with my two Brothers That Simon Maine had only a Trust in him during his own Life and if he had brought a Bill in Equity he could have had the Estate executed no further and therefore can Forfeit no more by this Act and it is not always that a Man that hath power over Land hath a Trust as we may sée in Cranmers Case Dier 308 309. there were as large words in the Act of his Attainder as here Indeed the Argument in Englefields Case 7 Co. rules this for if a Trust had béen implied in the power of Revocation they néeded to have argued that it should have been forfeited as a Condition so the D. of Norfolks Case for tho' the word Use is in that Act and not Trust as in this yet it makes no difference for an Use was then the same with what a Trust is now and tho' the word Power had béen in this Act yet there should have béen no Forfeiture in this case because the Execution of it is so personal and individual Neither is there found that ever there was any Execution and at most the Forfeiture could only be of what was in Simon Maine neither can Smith Execute it by virtue of his Grant from the King for the Kings Patent conveys nothing by implication and shall never work to a double intent Hale Chief Justice of the same Opinion First Crooke is a good Lessor for the other Trustees disagréement makes the Estate wholly his Secondly For the Circumstances of Fraud they are not material to be considered Thirdly The Trust is wholly disposed of after the Death of Simon Main so that he had nothing but during his Life Fourthly Then what is operated by the Attainder Why the Trust during Life is forfeited Vid. the E. of Somerset's Case Hob. 214. 2 Cro. 512. But then this Trust must have béen executed by the Court of Revenue 'T is true the Act doth not only give the Trust but the Term it self to the King that is during the Life of Simon Maine so that by this Act so much of the Term is drawn out of the Trustees as served the Trust which S. M. had but leaves the residue of the Term to serve the other Trusts so that the possibility of the Term returns to the Trustees after the Death of S. M. and this appears by the body of the Act. Also this appears by the saving in the Act. The first saving which saves all the Conveyances made by the Feoffor before the 29 of Sept. 1659. indeed might not help because Conveyances made to the Wives Children or Heirs are therein excepted But there the other Proviso saves the Right Interest c. of all persons whatsoever doth in Law and Equity not derived form the offenders since 25 Mar. 1646. and therein the Interest of Wife or Children and all are saved now this Estate was created before viz. 1643. I come now to the Provisoes The first Proviso determins nothing till the time of Simon Maine's Death and consequently this can revest no more to M. than he had before For the Condition is in expectation till he have a Son living at the time of his Death why then by this there comes nothing to S.M. so much as in point of Execution during his Life By his Will he might have limitted new Uses but he made none and 't is personal No other Man can make his Will Why then all stands as it did and nothing is made void till the time of his Death and then all is immediately executed to the Son by force of the first Conveyance But if the Proviso had béen That if S.M. had a Son there all had revested in S. M. and might have béen forfeited The last Proviso doth not create a Trust to him for if he had not béen Attainted the Trust should not have gon to his Executors c. No it creates a personal power of fetching back the former and declaring new Trusts observing the circumstances upon the same reason that this Estate can be forfeited a bare Executor I mean without a Devise of the residue might forfeit his Estate this is a Power yea and 't is a manacled Power it is a kind of Trust that he may revoke The D. of Norfolks Case is the same with this So Harding and Warners Case which was adjudged in C. Banco tho' there there were two to two and it was confessed by the Kings Attorney in Scaccario and the Kings Attorney doth not use to confess Judgment in Cases of great moment without consultation with the Judges This power was not nor could be passed to the
clearly Resolved that the King might grant it and that the Estate of the Grantee should continue tho' the King's Interest devolved upon the succeeding Queen And it was Resembled to the Case of the Dutchy of Cornwal If the King while there is no Prince of Wales makes a Lease of Lands belonging to that Dutchy this shall determine upon the Birth of that Prince but if he Presents to a Church the Incumbent shall not be removed as in case where the King presents to a Church by reason of the Temporalties of a Bishoprick the Bishop after Created shall not remove the Clerk And the Chief Justice said in this case that the Interest of the Mastership did not properly pass from the King so as it should have a dependance upon the King's Estate for the King doth but Nominate and the Master is Intituled as from the first Foundation and Constitution It was further agreed that a thing of this nature could not be granted in Reversion for 't is not like an Office but rather as a Prebendary or Incumbency of a Church and the Master as Head of the Corporation with his Brethren hath the whole Estate in him As to the Record in 4 Ed. 3. it was said Note For Evidence and so shewn out of Speeds Chronicles produced in Court That at that time Queen Isabel was under great Calamity and Oppression and what was then determined against her was not so much from the Right of the thing as the Iniquity of the Times neither hath it been heard that one who had been Queen of England should be called nuper Regina in her Life time So that that Authority was much invalidated from the Circumstance of the Time The Plaintiffs observing the Court thus clearly for the Defendants Title was Nonsuit Note It was not Resolved whether if there had been a Queen Consort at the time of this Grant it had been good to the Defendant But the Judges rather inclined that it should Davison versus Hoslip IN an Assumpsit the Plaintiff sets forth That J. S. owed him 20 l for the Arrear of an Annuity and that the Defendant was Receiver of the Rents of J. S. and appointed by J. S. to pay the Plaintiff his 20 l That the Defendant in Consideration that the Plaintiff would forbear him adtunc Receptor ' serv ' J.S. to such a time that then he would pay him if he lived and continued Receiver To this the Defendant pleaded non Assumpsit and a Verdict was found for the Plaintiff It was moved in Arrest of Judgment that it did not appear that the Defendant had at the time of the Promise any of the Rents of J. S. in his hands and then the forbearing of him could be no Consideration because not liable to any Suit And tho' in case of an Executor's Promise there need be no Averment of Assets for notwithstanding that he may be Sued and the Plaintiff may have Judgment to recover when Assets shall come yet 't is not so in this Case Sed non allocatur For it being shewn That he was Receiver at the time of the Promise and averred That he so continued 't is a strong Intendment that he had Effects in his hands especially after a Verdict It was also said That the taking of this Promise did not discharge the Principal Debtor but that there might be resort to him so long as the Money was unpaid Brown versus London IN an Action upon the Case the Plaintiff declared upon the Custom of Merchants that J. S. drew a Bill of Exchange upon the Defendant to pay to the Plaintiff which he accepted and hath not paid him And declared further sur Indebitat ' upon such a Sum for that the Defendant accepted a Bill of Exchange from him c. Vpon non Assumpsit a Verdict was fâ—und found for the Plaintiff and entire Damages given And it was moved in Arrest of Judgment that an Assumpsit sur Indebitat ' did not lye upon his matter but only an Action upon the Case as it was laid in the first part of the Declaration where the Custom of Merchants is set forth and that the Defendant by reason thereof is chargeable and this is not to be involved in a general Indebitatus assumpsit And of that Opinion were Hale and Rainsford who said it had been so Adjudged in the Exchequer since the King's Return But they said If A. delivers Money to B. to pay to C. and gives C. a Bill of Exchange drawn upon B. and B. accepts the Bill and doth not pay it C. may bring an Indebitatus assumpsit against B. as having received Money to his use But then he must not declare only upon a Bill of Exchange accepted as the Case at Bar is So by their Opinions the Judgment was stayed haesitante Twisden for he conceived that the Custom made it a Debt for him that accepted the Bill Ile's Case A Mandamus was prayed to restore a Sexton The Court at first doubted whether they should grant it because he was rather a Servant to the Parish than an Officer or one that had a Freehold in his Place But upon a Certificate shewn from the Minister and divers of the Parish That the Custom was there to choose a Sexton and that he held it for his Life and that he had 2 d a Year of every House within the Parish They granted a Mandamus and it was directed to the Churchwardens Twisden said that it was Ruled in 1652. in this Court That a Mandamus did not lye to be restored to a Stewardship of a Court Baron but of a Court Leet it did for there the Steward is Judge but of a Court Baron the Suitors are Judges But Hale said He was of another Opinion for the Steward is Judge of that part of the Court which concerns the Copyholds and is Register of the other Ante. Oble versus Dittlesfield IN an Assumpsit the Plaintiff sets forth That J.S. was Indebted to him in 40 l and that the Defendant was Indebted in the like Sum to J. S. and that J. S. did appoint him to receive this 40 l from the Defendant in satisfaction for the Debt due to him from J.S. Which he signifying to the Defendant he in consideratione praemissorum and that the Plaintiff would forbear him a Quarter of a year promised that he would then pay him To this the Defendant pleaded non Assumpsit and a Verdict was found for the Plaintiff It was moved in Arrest of Judgment that here was no sufficient Consideration for it doth not appear that the Defendant was party to this Agreement whereby he should become chargeable by the Plaintiff and then the Forbearance is not material and in the mean time he is Suable by J.S. his Creditor And Clipsham and Morris's Case was cited which was Adjudged in this Court Hill 20 21 Car. 2. where the Plaintiff in an Assumpsit declared that J. S. was Indebted to him in 50 l and gave him a
Note directed to the Defendant whereby he required the Defendant to pay him who upon view of the Note in Consideration that the Plaintiff would accept of his Promise and forbear him a Fortnight promised to pay him the Money There after Verdict for the Plaintiff Judgment was Arrested because that was held no Consideration Sed non allocatur For Hale said When Assumpsits grew first into practice they used to set out the Matter at large viz. in such a Case as this Quod mutuo aggreatum fuit inter eos c. and they should be discharged one against the other but since it hath been the way to declare more concisely And upon the whole Matter here it appears that the Defendant agreed to this Transferring of the Debt of J. S. to the Plaintiff and that it was agreed that he should be discharged against J. S. And he said that the Case of Davison and Haslip hoc Termino ante was to the same effect And for Clipsham's Case that was said to be good Law for there it did not appear that the Defendant was at all Indebted to him that sent the Note Sir William Hicks's Case DEbt was brought against him by the Name of Sir William Hicks Knight and Baronet He pleaded in Abatement that he was never Knighted The Plaintiff moved that he might Amend an that he had put in Bail by the Name of Knight and Baronet so that he was concluded to alledge this Matter which the Court agreed if it were so But it was found to be Entred for William Hicks Baronet only So they said they could not permit any Amendment but the Plaintiff must of necessity Arrest him over again Fisher versus Batten A Bill was Exhibited in the Dutchy Court to be relieved against the Forfeiture of a Mortgage of Lands lying within the County of Lancaster The Defendant prayed a Prohibition Surmizing that the Lands in question were not the Kings Lands or holden of him and therefore he ought not to Answer in the Dutchy Court And the Court appointed to hear Counsel on both Sides whether or no this Prohibition were to be granted And it was Argued by Sir William Jones for the Prohibition That a Court of Equity must begin by Prescription or Act of Parliament That there can be no Prescription in this Case for both the Dutchy and County Palatine of Lancaster began within time of Memory Henry Father of John of Gaunt was the first Duke of Lancaster and he was made so in Edward the Third's time and then Lancaster was made a County Palatine The Act of Parliament upon which this Case must depend is that of 1 Ed. 4. which takes notice that the Dutchy and County Palatine of Lancaster were forfeited to the Crown by the Attainder of H. 6. and Enacts That they shall be separate and distinguished from other Inheritances of the Crown and appoints a Chancellor for the County Palatine and a Chancellor for the Dutchy and that each should have his Seal so that the Chancellor of the Dutchy is not to intermeddle in the County Palatine which hath a Chancellor of its own for Matters there Counties Palatine had their Original from a Politick Reason and Lancaster Durham and Chester were made so probably because they were adjacent to Enemies Countries viz. the two first to Scotland and Chester to Wales so that the Inhabitants having Administration of Justice at home and not being obliged to attend other Courts those parts should not be disfurnished of Inhabitants that might secure the Country from Incursions 'T is true of a long time the Chancellorship both of County and Dutchy have been in one Person but 't is the same thing as if there were two for the several Capacities remain distinct in him The first Patent that made it a County Palatine Ordained that it should have Jura regalia ad Comitatum Palatinum pertinen ' adeo libere integre sicut Comes Cestriae Com. 215. infra eundem Comitat ' Cestriae dignoscitur obtinere c. So that by that the Jurisdiction ought to be exercised within the County They have shewn indeed a multitude of Presidents but I can hear but of One for the first Fifty years after 1 Edw. 4. most of the other are of Personal things and of the rest divers began in the County Palatine and were transmitted to the Dutchy Court As they may send Causes out of the Courts there to be Argued in the Kings Bench but doubtful whether the Court here can give Judgment They have very few Presidents of Causes which commenced Originally in the Dutchy Court which is but a Court of Revenue 4 Inst The Court of Requests had a multitude of Presidents but could not thereby gain it self any Jurisdiction 4 Inst 97. Holt's Case Hob. 77. A Bill was Exhibited to be relieved against the Penalty of a Bond which concerned an Extent of Lands within the County Palantine and a Prohibition was granted for the Dutchy Court is said there to have nothing to do but with the Kings Land and his Revenue Vid. Rolls accordingly Weston contra We cannot pretend to a Court of Equity by Prescription but we have Presidents of above Two hundred years last past as well of Bills retained which commenced Originally here as of those transmitted and that of Transmission is agreed on the other side which proves the Jurisdiction For if a Certiorari or Corpus cum causa should go out of the Kings-Bench Conusans of Pleas might be demanded and so to stop the Removing of the Cause out of the Inferiour Court We maintain our Jurisdiction upon the Statute of 1 Ed. 4. before which the County Palatine and Dutchy of Lancaster were distinct as they were 1 H. 4. by which Act they were both severed from the Possessions of the Crown But now 1 Ed. 4. makes one Body of these distinct Bodies and gives a superiority to the Dutchy over the County Palatine for that is annexed unto and made parcel of the Dutchy as the supream Name of Corporation The Words of the Act are That our Liege and Sovereign Lord King Edward the Fourth and his Heirs have as parcel of the Dutchy the County of Lancaster and County Palatine and there is a Chancellor and Seal appointed for the County Palatine and a Seal also for the Dutchy and a Chancellor there for the keeping thereof and Officers and Counsellors for the Guidance and Governance of the same Dutchy and of the particular Officers Ministers Tenants and Inhabitants thereof So that the Act having Constituted a Chancellor indefinitely over the Dutchy and not circumscribing his Power it is not reason to exempt any part of the Dutchy and that the County is by force of this Act. In the 4 Inst 119. it is said that seeing there hath been time out of mind a Chancellor of the Exchequer that there should be also in the Exchequer a Court of Equity So the Book of the 2d of H. 8. and Rolls Tit. Prohibition to the
76. 1 Inst 203. 1 Rolls 129. 9 Co. 79. where an Award was made that A. should pay B. 10 l and that B. super receptionem decem librarum should Release That he was bound to release it if the Money were offered tho' he should refuse it Wherefore they gave Judgment for the Plaintiff Sir John Goriton and Harvey versus Lithby PAsch 22 Car. 2. Rot. 331. In an Action upon the Case the Plaintiffs declared that there were Four ancient Mills within a Mannor And that J.C. was seised in Fee of Two of the Mills and J. H. of the other Two and laid a Prescription in each That they had kept the Mills in Repair and found Grinders to the intent that the Tenants of the Mannor might Grind at them and that Time out of mind the Tenants had Ground omne frumentum to be spent in their Houses at the Mills of J. C. or at the Mills of J. H. And for that the Defendant spent Corn which was ground at neither of the Mills they brought this Action To this Declaration the Defendant Demurred First For that they joyn in the Action and so the one shall recover Damages for not Grinding at the others Mill which is no loss to him Secondly The Prescription is for Grinding all the Corn to be spent in the Houses of the Tenants which is unreasonable for a great deal of Corn is used which is not proper to Grind. So it was said to be Adjudged between Aylett and Charlesworth 1654. in B.R. that the Prescription ought to be laid for all Corn triturandum consumendum in their Houses And this last Exception was held to be material by all the Court. But they conceived the Action might be brought by both for otherwise there could be no remedy upon the Prescription For singly they could not bring it because Grinding at any of the Mills would excuse the Defendant But Hale said the Declaration was naught because it is That the Defendant ought to Grind at the Mills of J. C. or J. H. which is true if either of them hath an ancient Mill altho' the other hath no pretence or right upon the Prescription And therefore it ought to have been laid thus That such Corn c. as was not Ground at the Mills of J C. ought to be Ground at the Mills of J. H. and then have Averted That the Defendants Corn was Ground at neither of them It was Adjudged for the Defendant Skinner versus Webb Scire facias THe Case was this A Judgment was recovered in this Court in an Action upon the Case upon a Bill of Exchange and a Scire facias was brought Quare execution ' c. and a Judgment upon that upon which a Writ of Error was brought in the Exchequer Chamber and the Judgment was affirmed after which the Defendant died and a Scire facias reciting the Judgment and Affirmance of it in the Exchequer Chamber was brought against the Administrator and Judgment had upon that and the Administrator brought Error upon the Judgment in the last Scire facias The Court were moved not to allow this Writ of Error or at least not to supersede Execution by reason of its being a second Writ of Error And the Court held that this Writ of Error did not lye into the Exchequer Chamber tho' it hath been Resolved that such Writ of Error lies in the Exchequer Chamber by the Statute of the 27th of Eliz. upon a Judgment in a Scire facias recovered upon a Judgment in an Action brought by Bill in this Court because 't is in Execution of the Judgment and is as it were a piece of the first Action Otherwise of a Judgment in a Scire facias upon a Recognizance or the like Now this Scire facias is brought upon a Judgment affirmed in the Exchequer Chamber which therefore is priviledged from any other Writ of Error to be brought upon it there So that this Writ of Error can be brought only upon the Judgment given in the Scire facias and therefore it doth not lye into the Exchequer Chamber Jacob Hall's Case COmplaint was made to the Lord Chief Justice by divers of the Inhabitants about Charing Cross that Jacob Hall was erecting of a great Booth in the Street there intending to shew his Feats of Activity and Dancing upon the Ropes there to their great Annoyance by reason of the Crown of idle and naughty People that would be drawn thither and their Apprentices inveigled from their Shops Vpon this the Chief Justice appointed him to be sent for into the Court and that an Indictment should be presented to the Grand Jury of this matter and withal the Court warned him that he should proceed no further But he being dismissed they were presently after informed that be caused his Workmen to go on Whereupon they Commanded the Marshal to fetch him into Court And being brought in and demanded How he durst go on in contempt of the Court He with great Impudence affirmed That he had the King's Warrant for it and Promise to bear him harmless Then they requited of him a Recognizance of 300 l that he should cease further Building which he obstinately refused and was Committed And the Court caused a Record to be made of this Nusans as upon their own view it being in their way to Westminster and awarded a Writ thereupon to the Sheriff of Middlesex Commanding him to prostrate the Building And the Court said Things of this nature ought not to be placed amongst Peoples Habitations and that it was a Nusans to the King 's Royal Palace besides that it straitned the Way and was insufferable in that respect The King versus Wright AN Indictment was against him for suffering of two persons to escape qui commissi fuerunt by the Justices of the Peace for an Offence against the Statute of 8 H. 6. of Forcible Entry After Verdict for the Plaintiff and Judgment a Writ of Error was brought and assigned for Error That it was not expressed how the Commitment was whether upon View of the Justices or Verdict upon an Indictment so that it doth not appear that they were legally Committed nothing of the Proceedings being set forth and 't is not so much as said debito aut legitimo modo commissi fuerunt If a man be Indicted of Perjury in his Oath sworn before a Master in Chancery it must be shewn that the Master had an Authority to take an Oath And the Court doubted at first and commanded the Clerk of the Crown to search Presidents and he found that they were most debito modo commissi but some without that Clause And the Court held it being but inducement to the Offence whereupon this Indictment is that it was well enough alledged and after the Verdict they must intend the Commitment was legal Vide Crompton's Justice of the Peace 252. a. and 255. there are two Presidents like this Note It was said by Hale that upon non Assumpsit Infancy
Specie when the Estate is determined The Case of Captain C. A Captain of a Company in Colonel Russel's Regiment of Foot Gaurds and a Serjeant of his Company were brought into Court upon the Prosecution of the Sheriffs and other Citizens of London and the Offence alledged and moved against them was this That one Danbert a Butcher and Freeman of London who had Broke having Listed himself a Souldier in this Company and being afterwards Arrested in London for Debt and laid in the Counter and thereof he having given the Captain private Notice the following Design was resolved and executed for his Rescue viz. There being a Priviledge belonging to the Freeman of London that they may by a Customary Precept or Warrant called a Duci facias but by the Common People called a Horse remove themselves from any other Prison where they are in London to Ludgate where it seems they have better Accommodation there being Maintenance allowed to the Prisoners of that place Such an one Danbert got and gave Notice to the Captain at what time he should be carried from the Counter to Ludgate thereby Before this time the Captain commanded this Serjeant to take twenty or thirty Soldiers with him and Way-lay the Prisoner and Rescue him from the Bayliffs and Officers of the Counter as they were bringing him along Accordingly the Serjeant and Soldiers went and lay in or near an Alehouse about Popes-head Alley in Ambuscade till the Prisoner should be brought by And when they had Notice from one who they had placed as Centinel that he was coming they sallied out and drew their Swords for the Serjeant had given them order so to do and if any opposition were made they should kill the first Man And by this means they Rescued him and carried him away Hereupon Complaint being made to the Captain He Answered That his Soldiers had done well and he would Justifie it The Court asked him what he had to say in his Iustification He said That he did not know the Law but he ever thought that a Soldier could not be Arrested without leave of his Officer and that there was an Agreement to that purpose between the late Lord General and the former Lord Chief Justice and that he knew one that had done the like thing and nothing was said to him for it Hale Chief Justice to whom the rest agreed said The more wrong has been done It seems you are grown very Dead-strong but you ought to know that every Officer and Soldier is as liable to be Arrested as a Tradesman or any other person whatsoever and you ought to give full Obedience to the King's Commands signified by his Writs or Process Wild said That that may be served upon you when you are in the Head of your Company Hale said further You are the Kings Servants and intended for his Defence against his Enemies and to preserve the Peace of the Kingdom not to exempt your self from the Authority of the Laws And indeed it were a vain thing to talk of Courts and Laws if Military Men shall thus give the Law and controll Proceedings And for that Agreement you speak of I know nothing of it and if there were any such thing it could be nothing but a Civility Whatever you Military Men think you shall find that you are under the Civil Jurisdiction and you but gnaw a File you will break your Teeth e're you shall prevail against it This is an Outragious Offence and the Punishment has formerly gone high Men have heretofore lost their Heads for Matters of such nature and one of the Crimes of the late London Apprentices was the breaking of Prisons and delivering of Prisoners for which they had Iudgment of High Treason by the Advice of all the Judges The Captain and Serjeant were Committed to Newgate and being brought up at another time Hale asked Why an Information against these Persons was not Exhibited And told the City Counsel that if the Sheriffs did not prosecute this business they the Court would Prosecute them for this was a matter of great Example and ought not to be smothered And further said If that Men will take upon them to Rescue all Soldiers that are Committed it may be within the reach of High Treason because of the Vniversality of the Design against the King's Athority But this being but for one particular it cannot be Treason but 't is a rank Misdemeanour And be Ordered that as many of the rest of the Soldiers should be Prosecuted as their Names could be learned There must be one more to make a Riot tho' however 't is a Misdemeanour Wild said Tho' they cannot find out another Name yet if it be set forth and made out that there were others 't is enough to make a Riot Termino Sancti Hillarij Anno 25 26 Car. II. In Banco Regis NOte When a Prohibition is moved for that a Copy of the Libel is denied to be delivered The Court requires that Oath should be made of the Denial and the Prohibition is but quousque a Copy be delivered Anonymus AN Indebitat ' Assumpsit was brought for Money Lent The Defendant pleads a Tender which being offered at first before Action brought and acknowledged by the Plaintiff he can never recover any Costs The Plaintiff Replies That before the Tender he brought an Assumpsit in the Sheriffs Court upon a Plaint upon the same Cause of Action which was removed hither The Defendant Rejoyns that upon that Plaint he declared for a greater Sum. To which the Plaintiff Demurred For tho' there be a Variance in the Sum yet it might be averred to be the same Cause of Action And so the Court agreed And Hale put this Case A. in Consideration that B. would marry his Daughter promised to pay 100 l and in an Action brought the Plaintiff was barred and in another Action brought The Promise was laid to pay the 100 l at Request and held it could not be averred to be the same Anonymus Note Where Error is assigned in a Matter contrary to the Record in nullo est Erratum is a Demurrer So where Matter of Fact is insufficiently alledged But if a Matter of Law and Matter of Fact together well set forth be assigned which ought not to be there in nullo est Erratum will be a Confession of the Matter of Fact and not serve as a Demurrer for the Doubleness Wherefore in that case the Defendant must Demur Anonymus ONe having Rent payable Half yearly for a Term whereof about six years were to come was content to Release it upon a Bond Conditioned for the payment of the like Sum with the Rent and at the same times And in Debt upon the Bond after failure of Payment upon a Reference to the Secondary to state what was really due He asked the Opinion of the Court whether there should be any deduction for Taxes And the Court said it was Equitable they should be allowed in regard the Money in the
Condition was intended between the Parties to be but in lieu of the Rent which should have been chargeable with that Assessment Anonymus IN an Action upon the Statute of the 13th of this King which Imposes 6 s and 8 d Penalty upon any one that shall print anothers Copy whereof he hath made due Entry in the Register Book of the Company of Stationers without License of the Proprietor It was set forth that the Defendant had printed One thousand parts of a Book called The Young Clerk's Guide after that the Plaintiff had made an Entry thereof in the Register Book of the Company of Stationers After a Verdict for the Plaintiff as to One Book which was all the Plaintiff could prove printed since the late Act of General Pardon It was moved in Arrest of Judgment that the Plaintiff did not shew himself to be Proprietor of the Book before he made the Entry Sed non allocatur For the Statute gives the Action to him that has made an Entry in the Register Book Secondly It was Objected that the Plaintiff ought to have no Costs in this Action But for that the Court said the Plaintiff might release them But it was to be considered whether the Costs were well given or no Hedgeborrow versus Rosenden IN Debt for 100 l the Plaintiff Declared upon Articles of Agreement purporting that the Plaintiff and Defendant should Run an Horse for 100 l and if the Defendant lost that he should pay the 100 l c. The Defendant pleaded the Statute of this King concerning Gaming which provides that all Securities given for Money lost at Play exceeding 100 l shall be void And sets forth that in the Articles it was further agreed that the Plaintiff and Defendant should Run two three or four Heats more at 20 l a Heat if the Plaintiff required it so that the whole amounted to more than 100 l Holt Argued for the Plaintiff First The Statute as appears by the words intended to avoid Securities given for Money lost at Play but not where the Contract is precedent For tho' men when they have lost their Money are very rash in venturing further yet what is done before they enter into play may be supposed to be done considerately Sed non allocatur for that Construction would wholly elude the Statute and let Men loose to play for any great Sum provided they secured it before-hand Secondly It was objected that the Statute did not intend to avoid the security when there was but 100 l lost at a time and it does not appear here that the Plaintiff requested the Defendant to play any further Sed non allocatur for the bargain being to play for more than 100 l 't is void ab initio and tho' the Plaintiff did not request the Defendant 't is not material no more than if one should contract for more interest than the Statute allows if the Creditor requests it tho' he never requests yet 't is within the Statute of Usury and the Court said they would extend this Satute as largely as might be in suppressing of Gaming which was so mischievous Monsieur Bellew Norman Senior and Norman Junior THree Frenchmen were indicted of Treason in Coyning and Clipping the Kings Money by two several Indictments and the Court doubted whether Iudgment for the Clipping should be Drawing Hanging and Quartering or Drawing and Hanging only and having advised with all the Judges at Serjants Inn they resolved it should be Drawing and Hanging only tho' the Presidents are both ways And the Opinion of Coke 3 Inst 17. is that a Clipper should be Drawn Hanged and Quartered But in regard the Statute of 3 H. 5. declared Clipping and Diminishing the Kings Coyn to be within the Statute of the 25 E. 3. which mentions Coyning only that does not stand repealed by 1 Mar. that leaves all Treasons within the Statute of the 25 E. 5. as they were before and so 1 Eliz. against Coyning makes not a new Treason And then as Hale said Coyning was esteemed as an inferiour sort of Treason in comparison of such as concerned the Kings Person wherefore there was Drawing and Hanging only for that and then by the same reason for Clipping which seems a less degree of the same kind of Treason Then there was debate whether Twisden being the antient Judge or the Chief Justice should pronounce the Iudgment Twisden said in case of Treason it belonged to the Chief Justice tho not in Felonies and that the Lord Foster did it in Sir Henry Vanes Case in the 13 of this King Hale Thought the other was to do it and therefore Twisden gave the Judgment ut supra and to avoid scruple Hale pronounced it over again Baker versus Bulstrode IN Debt upon a Bond Conditioned to perform an Award the question did arise upon one part of the Award viz. That the Defendant should Seal and Execute such a Release to the Plaintiff as should be to the satisfaction of the Plaintiffs Counsel within the space of seven days and which of the Parties was to tender the Release was the question And it was resolved that the tender ought to come on the Defendants side and not like the Case where such Deed c. is to be made as the Counsel for the other Party shall advise for the Deed must be offered according as the Counsel does advise and he to whom 't is to be made is to do the first Act but the words here are of another import vid. Lambs Case 5 Co. 23.13 It was held by the Court that a Writ of Error that hears Teste before the Judgment given is good to remove the Record so as Iudgment be given before the Return of it And Hale said that about three years since at Norfolk Assizes the Defendant in an Indictment of Barretry brought a Writ of Error Teste before the Assizes and it was disallowed because if such practice should obtain it would disappoint all the Proceedings at the Assizes And if the Plaintiff does not shew his Writ of Error to the other Party or get it allowed by the Clerk by Endorsing Recipitur upon it within four days which time the Court gives as convenient time for putting in of Bayl according to the Statute the Writ of Error is no Supersedeas Also if before the Writ of Error the Sheriff Returns Fieri feci and non inveni emptores the Execution is not to be undone Termino Paschae Anno 26 Car. II. In Banco Regis Anonymus IN an Assault and Battery the Case upon the Evidence was this The Defendant drew a Sword and waved it in a menacing manner against the Plaintiff but did not touch him so the Jury were ordered to find him Guilty as to the Assault but not of the Battery And the Opinion of the Court was that the Plaintiff was to have no more Costs than Damages for the new Act excepts Actions of Assault and Battery so that both must be proved Anonymus IF a Parish
c. be indicted for not repairing of a Way within their Precinct they cannot plead Not guilty and give in Evidence that another by Prescription or Tenure ought to repair it for they are chargeable de communi Jure and if they would discharge themselves by laying it elsewhere it must be pleaded Error ERror to Reverse a Judgment in Debt upon a Bond given in Norwich Court where by the Custom the plea of the Defendant was quod non dedicit factum sed petit quod inquiratur de debito First It was moved to be Error for that the Venire was XII Men c. in figures Sed non allocatur for being in these letters XII and not in the figures 12. it was well enough Secondly It was ad triandum exi tum whereas there was no Issue joyned wherefore it ought to have been ad inquirend ' de debito c. Sed non allocatur for the Presidents are as the Case is here Thirdly The Condition of the Bond was to pay at Alborough and that ought to have been shewn to be within the Jurisdiction of the Court Sed non allocatur for the Plea here is not payment secund ' formam Conditionis but the Jury is to inquire by the custom of all manner of payments and discharges Fourthly In the Record it was continued over to several Courts and in the Court where the Judgment is given 't is said in Curia praedicta and so incertain which but notwithstanding these matters the Iudgment was affirmed Anonymus THe Case upon Evidence at a Tryal in Ejectment was this a Dean and Chapter having a right to certain Land but being out of Possession Sealed a Lease with a Letter of Attorney to deliver it upon the Land which was done accordingly and held to be a good Lease for tho' the putting the Seal of a Corporation aggregate to a Deed carries with it a delivery yet the Letter of Attorney to deliver it upon the Land shall suspend the operation of it while then Tenant for Life being in Debt to defraud his Creditors commits a Forfeiture to the end that he in Reversion may enter who is made privy to the contrivance The Opinion of Hale was that the Creditors should avoid this as well as any fraudulent Conveyance Anonymus IN an Ejectment upon a Tryal at Bar for Lands in antient Demesne there was shewn a Recovery in the Court of antient Demesne to cut off an Entail which had been suffered a long time since and the Possession had gone accordingly But there was now objected against it First That no sufficient Evidence of it appeared because the Recovery it self nor a Copy of it was shewn for in truth it was lost But the Court did admit other proof of it to be sufficient and said if a Record be lost it may be proved to a Jury by Testimony as the Decree in H. 8. time for Tythe in London is lost yet it hath been often allowed that there was one Secondly It appeared that a part of the Land was leased for Life and the Recovery with a single Voucher was suffered by him in Reversion and so no Tenant to the Praecipe for those Lands But in regard the Possession had followed it for so long time the Court said they would presume a Surrender as in an Appropriation of great Antiquity there has been presumed a Licence tho' none appeared Thirdly It was objected That the Tenant in Tail which suffered the Recovery having first accepted of a Fine sur Conusans de droit come ceo his Estate Tail was changed for he was estopped during his Life to say that he had any other Estate than Fee then he being made Tenant to the Praecipe the Recovery was not of the Estate Tail and so should not bind But the Court held clearly that the acceptance of this Fine made no alteration of his Estate If Tenant for Life accepts such a Fine 't is a Forfeiture because he admits the Reversion to be in a Stranger but it does not change his Estate so where two Joynt-tenants in Fee accept a Fine which is to the Heirs of one of them yet they continue Joynt-tenants in Fee as they were before Fourthly The Writ of Right Close did express the Land to lie in such a Mannor and a Praecipe that demands Land ought to mention the Vill in which they lie for a Praecipe of Land in Parochia or in Manerio is not good But this exception was disallowed by the Court for Hale said the Writ of Right Close is directed Ballivis Manerij c. quod plenum rectum teneant of the Land within the Precinct of the Mannor and it is not to be resembled to another Praecipe But if a Praecipe be faulty in that Point unless exception be taken to it in Abatement it cannot be assigned for Error but if it were Erroneous the Recovery would bind until reversed Note After Judgment quod computet tho' it be not the final Judgment yet no motion is to be admitted in Arrest of Judgment and after such Judgment a Scire facias lies against the Executor of the Defendant Note In an Action of Debt against the Lessee he may plead nil debet and give the expulsion in Evidence Anonymus IN an Assumpsit the consideration appeared to be that the Defendant promised to pay a Sum of Money which he owed this is no good consideration tho' after a Verdict unless it appeared that the Debt was become remediless by the Statute of Limitations but payment of a Debt without Suit is a good consideration Anonymus A Justice of the Peace brought an Action of Slander for that the Defendant said He was not worth a Groat and that he was gone to the Dogs and upon motion in Arrest of Judgment notwithstanding that it was urged to maintain it that the Statute of H. 6. requires that a Justice of Peace should have 40 l a year And therefore in regard an Estate was necessary to his Office that the Action would lie yet the Judgment was stayed for such words will not bear an Action unless the person of whom they are spoken lives by buying and selling Anonymus IT was returned upon Elegit that the Sheriff had delivered medietatem Terrar ' Tenementorum in extent and after the Filing and Entry of it upon the Record the Plaintiff moved to quash it because it was insufficient for the Sheriff ought upon such Execution to deliver the Possession by Metes and Bounds Wild held that it being entred upon the Record there was no avoiding of it but by Writ of Error But Hale held that in regard it appeared by the Record to be void it might be quashed as if upon an Ejectment to recover Possession upon such a return it appears upon the Evidence that there was more than the half the Land delivered this shall be avoided So if a Fieri facias be not warranted by the Judgment upon which it is awarded tho' the Sheriff shall be
of Wood he hath the effect of his Grant But Trees differ in value exceedingly from each other Bolton versus Cannon IN Debt against an Executor for Rent Arrere in his own time in the debet detinet The Defendant pleads that the Rent is more worth than the Land and that he tendred a Surrender before the time for which the Rent is demanded and that the Plaintiff refused to accept the Surrender and that he had fully administred and so demands Iudgment of the Action The Plaintiff replies that there was Rent Arrear to him and that therefore he was not bound to accept of the Surrender and to this the Defendant Demurrs The Court said First That an Executor that does intermeddle cannot wave a Lease or any other part of the Testators Estate for he cannot assume the Executorship for part and refuse for part Secondly That in case the Land be not more worth than the Rent it is a good Plea to an Action of Debt in the debet and detinet for he is to be charged in the detinet only tho' where the Rent is of less value he may be charged in the debet detinet for that which is accrued in his own time according to Hargraves Case 5 Co. Thirdly The doubt here is that the Defendant having waved the material part of his Plea viz. That the Rent exceeded the value of the Land and relied upon his tender of a Surrender which is nothing to the purpose whether Judgment can be here for him and that otherwise his Plea is double but because the Plaintiff hath not demurred to that but answered only to one part of it the Defendant might well Demurr upon the Replication because it does not answer all contained in the Plea for unless the party Demurrs for doubleness he is bound to answer all the matters alledged Et Adjornatur But being this Term moved again Iudgment was given for the Plaintiff because the Defendant relinquished the material part of his Bar and offered matter meerly frivolous Cartwright versus Pinkney TEnant for years Surrenders to the Lessor reserving a Rent the question was Whether it was a good Reservation And held that it was upon the Contract and that Debt lay after the first day was incurred wherein it was reserved to be paid for it was in the nature of a Rent and not of a Sum in Gross Ante Wilson and Pinckney Anonymus IN Trespass for Fishing in his several Fishery pisces cepit After a Verdict for the Plaintiff it was moved in Arrest of Judgment that the Plaintiff ought to have alledged what kind of Fishes and the number of them as in Playters Case 5 Co. is But for that it was said on the other side that at that time they were more strict in the certainty of pleading than since for now and indebitat ' Assumpsit for Work done or Goods sold is allowed without further certainty And that however the Oxford Act 15 Car. 2. here helped it for tho' this be none of the defects there enumerated yet the words of the Act being That Judgment shall not be arrested for any other exception that doth not alter the nature of the Action or Tryal of the Issue shall extend to this Case But the Court were of Opinion that none of the Acts had aided this Case in regard that there was not so much as the number of the Fishes expressed as if a Man should bring Trespass for taking of his Beasts and not say what But Hale said Trover for a Ship cum velis had been allowed because all made but one aggregate Body both the Ship and Sails But Trover pro velis would not be good Vid. 2 Cro. 435. Trespass quare clausum fregit Spinas cepit and 3 Cro. 553. Child and Greenhills Case Dr. Webb versus Batchelour al' IN Trespass for taking so many Cowes upon Not guilty a Special Verdict was found That an Act of this King for repairing of the High-ways appoints that such persons as keep Carts and Horses c. should send them at certain times to assist in the repairing of the Ways not having a reasonable excuse and that warning was given to the Parishioners of the Parish whereof the Plaintiff was Parson to send in their Carts and that the Plaintiff omitting to do it a Justice of Peace made a Warrant to the Defendant to distrain him according to the Authority given by the Act c. It was alledged for the Plaintiff First That Clergymen were not obliged by this Act for Ecclesiastical Persons have always had immunities from such charges as Pontage Murage c. and shall not be comprehended in the general words Parishioners Secondly That in regard the Act allows an excuse the Justice of the Peace ought to have caused the Plaintiff to have appeared before him to have seen whether he had an excuse before he could have made his Warrant and tho' the Officer that executes the Process of a Court of Record be indemnified where the proceeding is Erroneous yet 't is not so where the proceeding is not of Record as the 10 Co. in the case of the Marshalsey 3 Cro. 394. Nicholls versus Walker and Carter Where a Warrant was made by a Justice of the Peace to distrain for a Poors Rate Trespass was maintained against the Officer that executed the VVarrant because the Plaintiff was not chargeable as an Inhabitant of the Parish for whose Poor the Rate was made Curia contra 1. The Clergy are liable to all publick charges imposed by Act of Parliament and that hath been resolved as Hale said upon debate before all the Judges 2. The Officer that executes the VVarrant though unduely made for the cause alledged is not answerable for he is not to judge but to execute the matter it being within the Jurisdiction of the Justice of the Peace and 't is not like the Case in the 3 Cro. for there the Churchwardens And Overseers of one Parish distrained in another Parish which was out of the limits of their Authority but in 14 H. 8. 16. where a Justice of the Peace made a VVarrant to Arrest a Man for Felony which in those times was held beyond his power tho' otherwise since unless there had been some Indictment of Record yet 't is there held the Officer that executes such VVarrant is not punishable Wherefore Judgment was given here for the Defendants Termino Sanctae Michaelis Anno 27 Car. II. In Banco Regis Anonymus A Judgment was removed by Error into this Court and affirmed the Capias that is Awarded thereupon must mention it and not be general as upon a Judgment originally in this Court and if such a Writ issues out the Court will upon motion grant a Supersedeas and there needs no Writ of Error in Adjudicatione Executionis tho' it was taken out in a former Term. Anonymus LIbel was by the Churchwardens of c. in the Ecclesiastical Court for 1 l 6 s 8 d upon a Custom
it will be agreed he might have released it or by cutting of the Wood might have taken away all the right of Action Again it does not appear by the Record that the Defendant was here and so no benefit by the forbearing to cut the Wood. Rookwoods Case cited on the other side 1 Cro. 163. 1 Leonard 192. is that the Promise was made to the younger Brothers and the Consideration that they would consent but here the Plaintiff who was to have the Money had no share in the Consideration or Meritorious Act as where the Father promises J. S. if his Son will Marry his Daughter he will give him 1000 l the Son may bring the Action because the Consideration moves from him Hetlys Rep. 20. the Case was to this effect A Man promises a Woman whom he was to Marry upon a certain Consideration that if he had a Son by her he should have a Term whereof the Woman was then possessed and if it were a Daughter she should have the Moiety of the Goods c. they Intermarry and after the death of the Husband the Daughter born between them brings an Action against the Executor of the Husband and resolved that it would not lie tho' they did not think the Agreement made with the Wife to be discharged by the Intermarriage but only suspended which is a Quaere in my Lord Hobart Yet the Daughter being no Party to the Promise or to the Consideration could not bring an Action The Case of Norris and Pine before cited is stronger for there he that made the Promise had a benefit for it was in Consideration of Marriage On the other side it was said that tho' it doth not appear that the Defendant was Heir yet it may be intended after Verdict however 't is not nudum pactum for if the Defendant had no benefit yet there was a restraint upon the other and that is Consideration enough And for the objection of releasing that holds where J. S. promises J.N. if his Son will Marry his Daughter he will pay him 1000 l J.N. may Release but 't is doubtful whether he can after Marriage because then 't is vested in the Son as Scroggs Chief Justice said 1 Roll. 31. The Uncle of an Infant delivered J.S. 12 l who promised to pay the Infant when he came of Age and the Action was well brought by him after his Age. So Goods sold to A. to pay 10 l to B. B. may Sue Vid. 1. Roll. 32 Starkey and Mills The Court said it might be another Case if the Money had béen to have been paid to a Stranger but there is such a nearness of Relation between the Father and Child and 't is a kind of Debt to the Child to be provided for that the Plaintiff is plainly concerned And so by the Opinion of them all viz. Scroggs Wild Jones and Dolben Judicium pro Querente Ante. Anonymus A Prohibition was prayed to the Sheriffs Court of London for that an Action was there Commenced to which the Defendant pleaded That the cause of Action did not arise within the Jurisdiction and offered to swear his Plea but it was refused The Counsel for the Plaintiff objected against the Prohibition that the Plea came too late for it was after an Imparlance But it being proved by Affidavit that the Plea was tendred within two days after the Declaration was delivered and that immediately upon delivering the Declaration there is an Imparlance of course The Court granted the Prohibition and said that the other side might Demurr if they thought fit for the liberty of the Subject was infringed by bringing him within a private Jurisdiction when the Matter arises out of it and Attorney's in such places are sworn to advise no Plea to the Jurisdiction nor that none shall be put in by them And whereas 't was said that the Party had not prejudice for he might remove his Case by Habeas Corpus The that the Court answered coming by Habeas Corpus Bail must be put in above tho' the Cause otherwise did not require it Note It appeared here that there was no defence made in this to the Jurisdiction and Co. Inst was quoted that defence should be made tho' not full defence But the Court said it was not necessary and that Presidents were otherwise especially where the Court have no Jurisdiction of the matter otherwise where not of the person James versus Richardson IN Ejectment the Case upon a Special Verdict was thus A. devised the Lands to B. and his Heirs during the Life of J. S. and after to the Heirs of the Body of R. D. now living and to such other Heirs was should after be Born the Devisee for Life levied a Fine in the Life of him to whose Heirs the Remainder was limited but he had a Son at the time of the death of the Testator The question was Whether it was a Contingent Remainder the consequence whereof was to be destroyed by the Fine and that it was vested in the Son Scroggs Chief Justice Wild and Jones held it a Remainder vested by reason of the words now living which was a sufficient Designation of the person that was to take in a Will tho' improper to call him Heir But Dolben Contra for by this Construction the Heirs Born after are excluded and the Son would take but an Estate for Life tho' it were devised to the Heirs in the Plural Number Note Vpon a Writ of Error in the Exchequer Chamber this Iudgment was reversed Hillary 31 32. Car. 2. Termino Paschae Anno 31 Car. II. In Banco Regis A Mandamus was prayed to the Ecclesiastical Court to grant the Probat of a Will under Seal c. The Case was the Executor named in the Will had taken the usual Oath but after a Caveat entred and then Refused and another endeavoured to obtain Letters of Administration the Executor came after to desire the Will under Probat and contested the granting of Administration Which was Adjudged against him supposing that he was bound by his Refusal And after an Appeal to the Delegates this Mandamus was prayed and granted by the Court for having taken the Oath he could not be admitted to Refuse and the Ecclesiastical Court had no further Authority and the Caveat did not alter the Case Note The Oath was taken before a Surrogate yet it was all one Anonymus A Prohibition was prayed to a Suit for Tythes upon the Suggestion that the Lands out of which they were demanded say out of the Parish and the Bounds of Parishes are tryable at the Common Law But the Court denied the Prohibition because it did not appear that a Plea thereof had been offered in the Ecclesiastical Court Anonymus A Prohibition was prayed to stay a Suit against J. S. Lessee of a Rectory out of which a Pension was demanded It was suggested that the Lord Biron had three parts in four of this Rectory upon which the Pension was chargeable and that
Tail was executed by the first Conveyance And in the Case at Bar until the Release of B. the Fee was not executed in B. for the preservation of the Joynture and so the Plight and Condition of the Estate altered by matter subsequent and by consequence the Contingent Remainder destroyed The Court doubted whether there were such alteration of the Estate as to destroy the Remainder for they said to some purposes the Fee was executed before the Release Vid. 1 Inst 184. a. for if the Joynt-tenants had joyned in a Lease for years an Action of Wast would he against the Lessee Et Adjornatur Anonymus A Person who was committed to the Tower for Conspiring the death of the King was brought up by Habeas Corpus and prayed to have Bail taken unless an Indictment were found against her this Term according to the new Act of 31 Car. 2. for Habeas Corpus's The Court said that they which would have the benefit of that Act must pray it before the first week of the Term expires but in regard it appeared that she had prayed it before by her Counsel and her Habeas Corpus was taken out in time the Court said the benefit of the Act should be saved to her for the prayer is not necessary to be made in person But Mr. C. G. was refused the advantage he having omitted to make the prayer during the first week either in Person or by Counsel Sir Robert Peytons's Case HE was brought up by Habeas Corpus from the Tower his Counsel pressed much to have the Return Filed supposing that he would be then a Prisoner to the Court and committed to the Marshalsey but the Court ordered the Return to be Filed and notwithstanding remanded him to the Tower as they said they might do The King versus Plume ANte Hill 29 30 Car. 2. The Case was spoken to again upon the Demurrer to the Indictment for using of the Trade of a Fruiterer contra 5 Eliz. not having been bound an Apprentice Scroggs Chief Justice and Dolben inclined to the Opinion that it was a Mystery within the Statute there being great Art in chusing the times to gather and preserve their Fruit. And that the Cause deserved the more Consideration for that the Fruiterers were an ancient Corporation in London viz. From the time of E. 4. also a Barber Upholster and lately a Coachmaker Ruled to be within the Act. Jones and Pemberton seemed to be of another Opinion for it would be very inconvenient to make every one that sells Fruit by the penny within the Act and majus minus would make no odds surely since the 5 of Eliz. there would have been some Prosecution by the Company of Fruiterers in this case if it would have lain Brewers and Bakers require Skill and yet not within the Act. But the Court took time to deliver their positive Opinions Et Adjornatur Reve versus Cropley AN Indebitat ' Assumpsit was brought for 20 l as Executor to William Burroughs for so much of the said Williams Money had and received by the Defendant in his Life time whereupon the Plaintiff had Iudgment by Nihil Dicit and upon a Writ of Inquiry the Plaintiff not being provided to prove the Debt supposing it to be confessed by the Judgment the Jury found but two pence Damages Ventris moved to set aside this Writ of Enquiry for that the Plaintiff was not obliged in this Action to prove the Debt at the executing of the Writ of Enquiry no more than if he had brought an Action of Debt 2 Cro. 220. In Trespass for taking of Goods the Property is not to be proved upon the Writ of Enquiry after Iudgment Sur Nihil Dicit for said the Court if he should fail thereof it would be in destruction of the first Judgment Vid. Yelv. 152 Curia This being in an Action upon the Case which lies in Damages the Debt ought to have been proved and so let it stand Note If a Verdict be for 30 l and the Iudgment is quod recuperet damna praedicta ad 32 l This surplus will do no hurt because 't is damna praedicta Jones 171. Cooke versus Fountain IN an Ejectment upon a Trial at the Bar the Title of the Lessor of the Plaintiff was upon the Grant of a Rent with power to enter for Non payment The Executor of the Grantor was produced as a Witness for the Defendant And it was objected against him that in the Grant of the Rent the Grantor covenanted for himself and his Heirs to pay it and that the Executor being obliged was no competent Witness Against which it was much insisted upon on the other side that this Covenant annexed to a real Estate would not bind the Executor but only the Heir But the whole Court were against it The Counsel for the Defendant mentioned a Bill of Exceptions and the Court doubted whether it would lie in the Kings Bench so they waved it and shewed that the Executor had fully Administred the Inventory But they gave a further charge on the Plaintiffs side and so that Witness was set aside Termino Sanctae Trinitatis Anno 32 Car. II. In Banco Regis Anonymus IN an Action upon the Case The Plaintiff declared that he kept a Stage-Coach and got his Livelyhood by carrying of Passengers And that the Defendant spoke such Scandalous words of his Wife that so reflected upon him and rendred him so ridiculous that no body would Ride in his Coach and he thereby lost his Customers After Verdict for the Plaintiff it was moved to stay Iudgment that here was no cause of Action But on the other side a Case was cited of one Bodingly 14 Car. 2. C. B. where the Plaintiff declared That he was an Innkeeper and that the Defendant had presented his Wife at a Leet for a Scold and that such and such Guests in particular had absented from his House upon it and after Verdict he had Judgment But the Court here said that the Cases differed for that quality of the Wives might make the House troublesome to the Guests but a Stage Coachman could receive no probable prejudice in his Trade by defaming of his Wife or at the least the Plaintiff should have declared what Customers he had lost in particular and therefore they ordered quod querens Nils capiat per Biliam Anger versus Brewer IN an Attachment upon a Prohibition the Plaintiff declared That he proceeded in the Court Christian after the Prohibition delivered After Judgment by Nihil dicit and 100 l Damages given to the Plaintiff it was moved to stay Judgment that there was no place laid in the Declaration where the Defendant prosecuted since the Prohibition delivered and so if Issue had been taken upon Non prosecut ' fuit post deliberat ' brevis whence should the Venue have come But it being made appear to the Court that in all the Presidents of these kind of Declarations there is no place found mentioned
Circumstance that Special Matter or Circumstance must be shewn to the Court by him that would have the advantage of the Prescription for the Negative cannot be averred on the other side And it cannot be helped by supposing there may be Trees Mines or Park but it ought to be shewn for every thing that depends upon supposition may as well not be as be and to allow a Prescription upon such a supposal would be to bind up a party by it tho' the thing be not and Pasturage may well be supposed the whole profit of Pasture Ground for it is so in fact in many places and has its name because it is fed all the year But Where it is fed but part of the year and mowed or plowed the rest it is called Arable or Meadow The main Objection that I conceive they can make to this is That the Sole Pasturage or Vesture lies in Grant and the Owner may exclude himself wholly by Grant and so he may be excluded by Prescription or Custom and this they ground upon Co. Litt. 4 b. where it is said if a Man Grants to another and his Heirs vesturam terrae and makes Livery secundum formam Chartae yet the Freehold of the Soil shall not pass by which it is implied that the Vesture shall If this Book be to be understood of the Vesture at all times of the year where no other profits remain to the Lord I shall crave leave to object against it from the same Page where it is agréed that if it were profits the Soil would pass Methinks it should be the same in reason where the Vesture is all the profits and Vesture shall be intended all the profits I shall cite some Authorities which are not inconsiderable to Warrant this Opinion I have in a Manuscript Report of Cases in King James's time a Case betwixt Collins and the Bishop of Oxford It was Paschae 19. Jacobi upon a Tryal at Bar in the Kings Bench. The Case was that 1 Ed. 6. the King erects the Bishoprick of Oxford and gave to the Bishop and his Successors in t ' al' primam vesturam of a Meadow called Horse Meadow John Bridge Bishop of Oxford leased it for three Lives rendring Rent and dies his Successors before restitution of the Temporalties accepted the Rent of the Lessee and afterwards entred upon him Vpon this Case the first question was what passed by the Grant of prima vestura My Report says That it was agreed by all the Justices that by a Grant of Vestura Terrae by a common Person the Soil will pass and then there must be a Livery of consequence but they held a Grant of prima vestura was but like a Grant of prima tonsura and being for no certain time is but an Interest in the first cutting or taking of the Grass But they all agreed that if a Man Grants primam vesturam from such a day to such a day certain the Grantee shall have the Soil and Mow it or Feed it as he pleases Kelway 118. If a Man Grants vesturam Terrae for term of Life to another it is a Grant of the Land for Life for saith the Book the vesture is the profit of the Land and it is all one to have the profit as to have the Land it self Littleton puts the Case if a Man Grants the Vesture of Land to another and his Heirs without Livery no Estate passeth But the Book of my Lord Cokes difference betwixt the Vesture of the Land and the profits of the Land seems to be mistaken and in reason they are the same for I take it generally speaking Vesture shall be intended all the profits and if there be special profits as Mines opened or Waters c. which may qualifie the word and retain the Soil to the Owner it must be shewn And as it is for Vesture of Land so I conceive where it appears in Pleading that the Ground is Pasture Pasturage or Sole Feeding will signifie all the profits for Pasture is properly that which is wholly for Feeding and where the Sole Pasture is claimed the Owner cannot claim or take any other profit Temps E. 1. tit Partition 21. Two Men agree to make partition of Pasture Ground in this manner That one shall have totam pasturam from such a time to such a time and the other for the residue of the year this is a partition of the Soil it self which shews Pasture is to be intended the whole profits of Pasture Ground in that case the quo jure could not be maintained for the party had not barely a Liberty but the Soil it self If several Men have Profits upon the same Land alternis vicibus the Law most commonly determines the right of the Soil to be in him that has the most considerable Profits As for Example If one has the Summer Feeding of Pasture or the first Tonsure of Meadow or the Sowing and Reaping of Corn upon Arable and an other Man has the Feeding separately at other times of the year the Law saith that the Soil is in him that has the Summer profits and Corn because it is the greater Profits and the other hath but a Profit a prender Now suppose that two Men have interchangeably the sole Feeding of Pasture at such times that the interest of one is in all respects equal to that of the other there nothing can determin the Soil to be in one more than the other and therefore it shall be in one for his time and in the other for his time But where one has the sole feeding of Pasture at all times in the year and it has been so time out of mind and there is nothing but Pasture what can the other have to shew the Soil to be in him and why should it not be said to be in him that has the Feeding or whole Profits It seems very absurd that a Man should be allowed to be Owner of the Soil and yet it may be has no badge of Ownership by Perception of Profits If the Mans Estate be displaced so as to be put to a Writ of Right how should he lay the Esplees And as to this Consideration there may be difference betwixt a Grand and Vsage for a Grant beginning within time of Memory the Ownership of the Soil was once fully manifested until he had divested himself of all but that but upon Vsage time out of mind nothing can be said why one Man should have the Soil more than another if it be not in him that hath all the Profits I must end this Point also with this Observation That if there is no Case in all the Books of a Sole Pasture at all times of the year but in F. N. tit Prescription 51 and 55 and Hutton 45. It is made a Profit a prender and the most considerable Proâ—â—ts are left to the Owner My fourth Reason upon which I hold this Prescription is void is because it is a new invention framed to overthrow
was applied only to the Return of the Writs of the Queen For he laid a Prescption in the Bishop of Durham to have Retorna omnium Brevium Praeceptorum Mandatorum dictae Dom ' Reginae and says not of her Predecessors and it is plainly impossible that a man should have time out of mind the Return of the Queens Writs when the Queen began her Reign within time of Memory This Retorna Brevium carries in it by Implication the Execution of Writs tho' it be not express as in the last preceding Case where after the Words above mentioned is added Executionem eorundem And so it was Adjudged in the Case of the Countess of Warwick against Atwood Pasch 41 Eliz. Rot. 331. B.R. This Liberty tho' it carries an Exemption yet it doth not exclude but that the Sheriff may execute Writs within it But then it is a Wrong for which the Lord of the Liberty may have his Action But in some Cases the Sheriff may lawfully do it as in the Case of the King a Non omittas c. in case of Execution of a Writ of Waste whereto he is particularly Empower'd by the Statute and sometimes where the Thing is divided c. But I shall add no more concerning this but only say First This Liberty of Retorna Brevium is a dangerous Liberty for him that hath it for he is to be Responsible for all the Defaults of his Bayliffs as Escapes c. And if the Bayliff do not Account for the Collection of the King's Revenue c. 't is a Feather in his Cap but a Thorn in his Foot Secondly 'T is much derogatory to the Justice of the Kingdom For the party must go to the Sheriff first then to the Bayliff c. and by this means Justice is delayed and disappointed There are two Liberties do abundantly more hurt than they are worth viz. the Grants of Fines especially of Jurors and this of Retorna Brevium Therefore Edward the First a most Wise Prince Declared in Parliament and it was Recorded in the Courts That he would not grant it This you will find in the Pleas of Edward the First towards the latter End in Mr. Ryley The Passage meant is in Placita Parliamentaria 35 Ed. 1. fol. 366. in Mr. Ryley it is this Praeceptum Domini Regis LE Roy ad Dit Commande Quod apres cest Grant qu'il ad fait al un Counte de Nicole de Return de Brief avoir en deux Hundreds à terme de la vie du dit Counte le Roy ne voet doner ne granter a nulluy tiel Franchise tant come le Roy vivera s'il ne soit a ses Enfantes demesne ceo voet le Roy que soit Escrit en le Chancellerie en Gardrobe al Eschequer Thirdly A Grant of this Liberty was within a certain Precinct and could not extend to a County 2 H. 4. For as my Lord Coke observes on W. 2. cap. 39. 2 Inst 452. A Grant to have Return of Writs in a County is void for in effect it taketh away the Office of a Sheriff By that time I have applied these Observations I shall in effect have done First It is to be Considered Whether the Charters of King John did Create the Return of Writs or no seeing there are only Negative no Positive Words in it Somewhat may be said to maintain this to be a good Grant of Retorna Brevium but because the contrary has been admitted I will admit it too especially because the scope of the Patent was that the Abbot should be immediate Officer to the King and the intention of the Charter was to exclude the Sheriff and that does appear by the conclusion where an Exception is made of the Sheriffs Power of medling per Summonitionem c. and so it is like the Case of the Town of Berwick in 5 Jacobi a Grant to them that they should be a County but no Grant of having a Sheriff was adjudged to be void because there would be no Officer to execute and do Iustice I do observe that 13 Ed. 3. in the Iter there was an Information against this Abbot and he pleaded the Charter of R. 1. but there is nothing of Retorn of Writs that I can find and I have read the Book over Secondly We come to consider the Grant of E. 3. I say 1. It is a good Grant of Retorna Brevium 2. There is a good annexation of it to the Hundreds by reason of these words tanquam pertinent ' Hundredis predict ' for even at this day such a thing as Common of Estovers c. may be granted appurtenant Sacheverell against Porter 13 Car. 1. 1 Cro. 482. 1 Rolls 400. 11. H. 6. 11 Pl. 27. Now then by this Patent here is a Retorna Brevium not only newly created but newly created appurtenant and especially since here is a kind of cognation between the things this may very well be in like manner may Cognisance of Pleas be granted if the King should grant that a Lord of an Hundred should have cognitionem omnium placitorum c. tanquam pertinent ' Hundred ' c. it would create Cognisance of Pleas appurtenant to the Hundred for it being a Creature of the Kings it may be created as he pleases either in gross or as appurtenant for a thing appurtenant may be by Grant though a thing appendant must be by Prescription Well now this Abbot is seised of this Liberty quodammodo appurtenant 3. When the Monastery c. comes to be dissolved and given to the King it is to be considered what becomes of this Liberty then I conceive this Liberty is in the hands of the King as it was in the hands of the Abbot viz. as appurtenant and that without the aid of the Statute of 32 H. 8. c. 20. It is adjudged Keilway 72. Pl. 16. that this Liberty of Retorna Brevium when it comes to the King remains in the Crown and is not extinguished rejoyned or drowned thereby And this Liberty is not by this coming to the Crown reannexed to the County but if that were a Question the said Statute of 32 H. 8. hath put it out of question for by that Statute it is in the same state that it was before 'T is true the King might rejoyn it to the County but till he does it continues a Liberty distinct an Hundred in gross and the Sheriff shall write Ballivo Dom ' Regis c. 'T is true if a man forfeit such a Liberty by non user or mis user the Sheriff shall enter into it and to and execute as in other parts of the County because in that case the King comes in in disaffirmance of the Liberty but otherwise it is where the King comes in under a Subject as in the Bar case he does Fourthly We come to consider what alteration is made in the Case by the Grant to Seymour and his Attainder As to this I must observe that the
they have been favourably Construed A Mannor in Reputation hath passed by the name of a Mannor in a Recovery Sir M. Finch's Case in Co. and in 5 Co. Dormer's Case Common Recoveries have been admitted of an Advowson All here is to be taken as one Conveyance A Deed expressing the intent may abridge the Recovery in the number of Acres 2 Co. 76. 'T is true in case of the King as that in Mo. 710. there shall be no larger Construction than the express Words import So where the Intent appears as that in Dyer 261. B. North Chief Justice Wyndham and Atkyns Scroggs absent but said by the Chief Justice to be agreed were of the same Opinion and that Common Recoveries were not to be overthrown by nice Constructions and that the Inconvenience objected against the Intent being explained by a Pocket Conveyance was the same where a man had several Lands in the same Vill that of late they have directed the Cursitors to make out Writs of Lands in Parochia They said that there was no Case express against this and that it was the stronger because found in the Verdict that he which suffered the Recovery had no Lands in the Vill and therefore must be void if not extended to the Parish Termino Paschae Anno 32 Car. II. In Communi Banco The Case of Dodwell and the University of Oxford A Prohibition was prayed to the Chancellors Court of the University of Oxford in the behalf of Dodwell who being a Townsman of Oxford was Libelled against in the said Court upon a Statute or By Law of the University made in King James's time that whoever Privilegiatus sive non privilegiatus should be taken Walking in the Streets at Nine of the Clock at Night or after having no reasonable Excuse to be allowed by the Proctor c. should forfeit 40 s c. whereof one Moiety was to go to the University and the other to the Proctor c. that should take him And that Dodwell was taken walking abroad at that Hour and being demanded a Reason thereof he refused to give any Account causa contemptus ad morum reformationem this Libel was Exhibited The Prohibition was moved for the last Term but in regard the Court observed it touched the Jurisdiction of the University on the one hand and concerned the Liberties and Rights of the Townsmen on the other hand they deferred the granting of it until they should hear Counsel on both Sides which was appointed this Term. And now sundry ancient Charters were shewn by which was granted to the University a Iurisdiction tam in Laicos quam in alios and a By-Law made above 200 years since against Night-walking with the penalty of 40 s upon the Offender and Presidents of Proceeding thereupon in the Chancellors Court and that they were as well Guardians of the Peace by Prescription as by Charter And an Act of Parliament of 13 Eliz. was shewn whereby their Jurisdictions and Priviledges and Statutes were Confirmed And altho' the Mayor hath also a Commission of the Peace yet 't is subordinate and he swears Fealty to the Chancellor Curia This Libel is grounded upon a By-Law of 7 Jac. and being subsequent to that Statute of 13 Reginae it is questionable whether warranted by it or no This By-Law and Proceeding cannot be grounded nor derive Authority from their being Guardians of the Peace by Prescription as it seems they are by 9 H 6. 44. For without Act of Parliament or express Prescription a Corporation cannot make a By Law to bind those which are not of the Body Justices of the Peace cannot ordain a Penalty for a Crime without their Jurisdiction and the Proceeding in the Chancellors Court which is according to the Civil Lawâ— cannot be warranted by the Kings Charter For no Court other than such as proceed according to Law can be unless by Prescription or Act of Parliament wherefore in regard if the University should Intitle themselves to this Jurisdiction by Prescription it were properly triable by a Jury And if upon the Act of 13 Eliz. Matter of Law might arise how for the Act might extend North Chief Justice Atkyns and Scroggs thought it was not fit they should determine those Questions upon a Motion but inclined to grant the Prohibition and propounded to the parties to agree that the Libel should be amended wherein it was grounded upon the By-Law made 7 Jacobi which being subsequent to the Act of 13 Eliz. the Merits of the Cause would not be brought before themselves to determine the Grand Points which was agreed And then the Court said that they would grant a Prohibition and let the other Plead c. For North said that they did often deny a Prohibition tho' it were a Writ ex debito Justitae where they saw no Colour for it But if any material Questions were like to arise it was proper to grant it and not to determine them upon Motion but upon pleading to the Prohibition and therein it differed from a Habeas Corpus which was to be inst aly granted because the party is in Prison but there is no such speed requisite in a Prohibition But Wyndham was against the Prohibition in the Case at Bar for he took it that the By-Law 7 Jac. was but in Confirmation of that made before and as a Renewing of it which he took to be confirmed by the Act of 13 Eliz. Nota Scroggs said that Nine of the Clock could not be held such an Hour as it should be a Crime for a Townsman to walk at no more than Three in the Afternoon Tho' for Scholars it might be reasonable to restrain them but no Reason that Townsmen should be subjected to such Rules as were proper for Scholars And upon this he much grounded his Opinion for the Prohibition Anonymus IN an Action of Trespass the Defendant pleaded That the Plaintiff was Impropriator of such a Rectory and that he was sued in the Ecclesiastical Court and by Sentence there the Profits were sequestred for the Repair of the Chancel To which the Plaintiff demurred supposing that by 31 H. 8. the Profits of Rectories Impropriate were made Lay Fee and so not subject to be sequestred by the Court Christian and therefore it was supposed that the Lay Impropriator could not sue for Tythes in the Spiritual Court. For which Cause 32 H. 3. was made to empower Lay-men to recover them and 35 H. 8. gives the Ordinary Remedy for Procurations and Synodals which was conceived had been lost by making the Rectories Lay Fee 2 Cro. 518. in Parry and Banks's Case it is Resolved that when the Rectory is in the hands of a Lay Impropriator the Ordinary cannot dissolve the Vicaridge nor in such case cannot augment the Vicaridge 2 Roll. 339. The Form of Pleading was also Objected unto As First 'T is not positively alledged that the Chancel was out of Repair but that he was Libelled against which Libel did mention only it to be
the committing of Treason is the Forfeiture There is a difference between an Heir taking advantage of a Forfeiture in the time of the Ancestor and an Alienee in the time of the former Lord Vid. Owen 63. But then Iustice Charleton declared his Opinion that the Copyhold was given to the King by the of Statute of 12 Car. For the generality of the words other things of that Nature whatsoever and that enforced by the Proviso where mesn Conveyances Surrenders by Copy were mentioned But the other Iustices seemed to be of another Opinion for that Copyholds were never included in a Statute where any prejudice would thereby accrue to the Lord unless expresly named and for the Proviso it might be satisfied by the Copyholds which the Traitors might hold of the Kings Mannors or where they had a Mannor held of the King and had made voluntary Grants of Copyholds and Surrenders made subsequent And so 't was said to be the Opinion of my Lord Hales 16 Car. 2. when he was Chief Baron of the Exchequer But however they were ordered to attend the Kings Attorney General to know whether he desired to be heard to that point Et adjornatur Anonymus UPon a Trial at Bar upon a Quare Impedit the Case was Parceners had made partition to present by turn and an Vsurpation is in the turn of one of them whether this put all the rest out of possession or the Sister which had the next turn should present when the Church became void The Court inclined to an Opinion that it should put all out of possession and would not permit a Special Verdict upon the motion of Serjeant Maynard but a case was made of it for the consideration of the Iudges Vid. Kielway and F. N. B. 35. Anonymus IN na Ejectment Vpon a Special Verdict an Vsurpation had been made to a Church and a Quare impedit brought to remove the Incumbent and pending the Quare impedit the perpetual Advowson was sold by the Plaintiff and it was found ea intentione that J. S. Clerk should be presented after the Vsurper Incumbent removed and accordingly after such removal J. S. was Presented Admitted Instituted and Inducted And after Argument the Court gave Iudgment for the Plaintiff whose Lessor supposing the Presentation c. void by the Statute against Simony had procured a Presentation from the King and Admission Institution and Induction thereupon and the Court held it to be plain Simony Termino Sancti Michaelis Anno 2 Jac. II. In Communi Banco Bathursts Case AN Action was brought against him as Executor of an Executor of an Executor against whom the Plaintiff had recovered a Iudgment in Debt and it was suggested that he had wasted the Estate of the first Testator and so by the Statute 30 Car. 2. his Executor was liable in such Manner as his Testator would have been if he had been living Vpon Plene Administravit pleaded the matter was found specially and that the Executor which wasted was indebted to the Defendant whom he made Executor upon a simple Contract And the Question was whether the Defendant might retain for his Debt against the Debt grounded upon the Devastavit And the Court held that he might for it shall not be adjudged a Debt superior to a simple Contract Termino Paschae Anno 22 Car. II. In Communi Banco Grove and Dr. Elliot Chancellor of Sarum A Motion had been made for a Prohibition upon a Suggestion that per legem terrae no man ought to be Iudge in his own Cause c. nor ought any man to be compelled to answer Articles prosecuted against him ex mero Officio c. And that contrary hereto the Defendant had articled against the Plaintiff that he did out of his own private Will and Spirit and contrary to the Laws keep Conventicles and did allow and permit one South and others pretended Ministers and not allowed by the Church to Expound and Preach to himself and many others c. and this was ex promotione A. B. Notarij Publici c. It was not alledged in this Libel or Articles that there was any Presentment of this Matter but the Register of the Court swore that there was a Presentment made by the Curate of the Parish where c. and that a certain Copy which he delivered here into Court was a true Copy thereof Ellis Serjeant for the Plaintiff First Conventicles are properly punishable at the Common Law and not by the Ecclesiastical Law they are inquirable upon every Commission of Oyer and Terminer 4 Inst 162. and the late Act against Conventicles was in force at this time Secondly No man ought to be proceeded against in the Spiritual Court without a due presentment 25 H. 8. c. 14. declares that 't is not reasonable that any Ordinary by any suspition conceived of his own fancy without due accusation or presentment should put any Subject of this Realm into the infamy or slander of Heresie And the reason of this extends to other things as well as Heresie Indeed this Statute is repealed but as my Lord Coke 12 Rep. 26. observes it was herein declaratory of the Common Law and 't is great reason that there should be a presentment and accusation by some proper Person for otherwise an innocent Person in case of false accusation would not known where to have his remedy Object Here is a Presentment by the Curate and by the 113 of the Canons made 3 Jacobi a Curate in the absence of the Rector may present Answ First These Canons were never confirmed by Act of Parliament and without that there cannot be any Canons made to alter the Law 12 Co. 72 73. at least they can bind none but the Clergy Vid. Mo. 755. and one reason thereof is because the Laity have no Representatives in the Convocation Secondly This Canon says only that a Curate may present in the absence of the Rector it doth not appear here that the Rector was absent Thirdly All such Presentments ought to be upon Oath and this is not proved so to be The Courts in this Hall cannot proceed upon any such thing without Oath Fourthly It is not alledged in the Libel or Articles that there was any Presentment at all only the Register comes in and saith he finds such a Presentment among the Acts of the Court so that Issue cannot be taken whether any or no So it must be taken his proceeding was ex Officio mero without Presentment and 't is as great a mischief as was by reason of common Informers before the 18 Eliz. c. 5. appointed their names to be endorsed upon all Process sued out by them Thirdly In this Case they will examine upon Oath Now no Layman ought to answer upon Oath except in Cases matrimonial and Testamentary 12 Co. 26 27. 3 Cro. 262. Baldwyn contra First That Conventicles are punishable at the Common Law or were by the late Statute does not disprove or take away the Iurisdiction of the Spiritual
Ground tanquam ad Mesuag ' praed ' spectant ' pertinent ' de jure habere debet and that the Defendant stopped it up ad damnum c. The Defendant pleaded a frivolous Plea to which there was a Demurrer It was Objected on the Defendant's part that the Declaration was insufficient because the Plaintiff did not prescribe for the Way nor otherwise entitle himself to it than by a possession of the Messuage and that he had and ought to have a Way to the said Messuage belonging And a difference was taken between this and Dent and Oliver's Case 2 Cro. 43. where one alledged himself to be seised in Fee of a Mannor and had a Fair there and that the Defendant disturbed him to take Toll And in 2 Cro. Stackman and West there is a Prescription laid in the Dean and Chapter who had the Fee for the Way But it was Objected That a Corporation could not prescribe in a Que Estate but it was held well being but inducement to the Action And the Court here held the Declaration sufficient being but a possessory Action And a Case was said to be so Adjudged in this Court between the same parties Anno primo Jacobi secundi Vide the Case of Saint John and Moody upon the like Point Woodward al' versus Fox IN an Indebitat ' Assumpsit for 200 l for so much Money received by the Defendant for the use of the Plaintiffs The Defendant pleaded Non assumpsit and upon that a Special Verdict was found That in the Year 1681. before the Promise supposed c. John Hammond was and yet is Archdeacon of Huntington within the Diocess of Lincoln and that the Bishop of Lincoln is Patron of the Archdeaconry and that the Office of Register of the Court of Archdeaconry was time out of mind grantable by the Archdeacon for the Term of three Lives and that the said John Hammond in the said Year 1681. for 100 l sold and granted to Simon Michael and John Juce for their Lives the said Office of Register it being an Office concerning the administration of Justice and that by Colour thereof they enjoyed the Office till Juce died which was in 1687. and soon after in the same year the said Simon Michael died in the possession of the said Office and that Hammond was no ways Convicted of selling the said Office upon any prosecution at Law or otherwise And they further said That Thomas Bishop of Lincoln in the said Year 1687. after the Death of Juce and some time before the Death of Michael granted the said Office of Register to the Defendant Fox and set forth the Grant in haec verba which mentioned the said Registers Office to be void by the Statute of the 5 6 Ed. 6. against Sale of Offices and that thereupon it belonged to the said Bishop to grant the said Office by virtue of which the said Fox became seised of the said Office prout lex postulat And they find afterwards that in the same Year that Juce and Michael died Hammond being Archdeacon as aforesaid granted the said Office to the Plaintiffs Woodward Masters and Gilbert for their Lives and that they entred upon the said Office and became seised thereof ê“ut lex postulat And they find that the Bishops Grant was Afterwards Confirmed by the Dean and Chapter and they find that afterwards viz. the 22 of Octob. Anno regni Willielmi Mariae primo the said King and Queen their Letters Patents under the Great Seal reciting that the said Office appertained to Their Majesties to grant by the said Statute of Edward the 6th did grant the said Office of Register to the said Plaintiffs Woodward Masters and Gilbert for their Lives and that by virtue thereof they entred upon and exercised the said Office and received divers Fees and Profits thereunto belonging and that the Defendant having notice thereof did take divers Fees and Profits of the said Office amounting to 30 l claiming them to his own use c. and if upon the whole Matter c. Vpon this Special Verdict there were these Points moved The first Point was Whether this Office of Register could be granted for Lives This was not much insisted on by the Defendants Council it having been usually granted and so found by the Verdict 3 Cro. Young and Fowler 's Case a Grant in Reversion of the Registers Office was allowed being warranted by Usage and so in 3 Cro. Young and Stoel But unless there have been such Vsage 't is not grantable in Reversion Vide 3 Cro. Walker and Sir John Lamb. The second Point was Whether the Grant of this Office in Consideration of Money is void by the Statute of the 5th and 6th of Edward the 6th against Sale of Offices That Point was also waved it being Resolved in Dr. Trevor's Case 12 Co. 78. 2 Cro. 269. forasmuch as it concerned Administration of Justice The third Point was That the Statute of 5 Ed. 6. Enacting That the person who takes any Money for any Office shall lose and forfeit all his Right to any such Office c. Whether the King or the Bishop shall take advantage of this Forfeiture in regard the Statute doth not express who shall dispose of the Office in such case Co. Lit. 159. a. And it was said on the part of the Plaintiff That when a Statute gives a Forfeiture and not said to whom the King shall have it 11 Co. 60. a. unless there be a particular party grieved as upon the Statute of 2 Ed. 6. of Tythes and yet it was for some time before it was setled that the Parson should have the treble Value in that Case And this agrees with the Reason of the Common Law things that are nullius in bonis the King shall have them as extra Parochial Tythes 11 H. 4. 17. Vid. 5. Co. in Sir Henry Constable's Case The Soil of Navigable Rivers and derelict Lands was with this difference If the Sea leaves the Land gradatim and for but a little quantity the Owner of the Land shall have it but if in a great quantity at a time it goes to the King Davis Rep. 5. 6. Vid. Siderfin 86. Dyer 126. 'T is true at the Common Law where a person hath an Interest in that which is Forfeited he shall have the benefit of it as if a Park-keeper forfeit it shall go to the Owner of the Park And in Sir John Breon's Case Bridgm. 27. where the Earl of Lancaster gave License to make a Park in his Forest and the party forfeited his Office the Earl had the advantage of it In those cases the thing is forfeited to him from whom it was granted as a Copyholder forfeits to his Lord and Tenant for Life to him in Reversion but here the Bishop hath nothing to do with the Office of Register he cannot dispose of it in the time of Vacancy of the Archdeaconry The Verdict finds that his Office is to Register the Acts in the
forma as he hath set forth in his Avowry Petit Judicium dampna c. loc ' in quo c. modo forma prout praed ' Simo per advocar ' suum praed ' superius supponit Et hoc parat ' est verificare unde ex quo praed ' Simo capc̄onem Equuli praedicti in praedicto Clauso in quo c. superius cogn ' idem Samuel pet ' Judicium dampna sua occ̄one capconis injuste detenconis Equuli illius sibi adjudicari c. Demurrer to the Plea Et praedict ' Simo dic ' quod praed ' placitum praedict ' Samuel ' superius replicand ' placitat ' materiaque in eodem content ' minus sufficien ' in lege existunt ad ipm̄ Samuel ' acconem praed ' versus eum habend ' manutenend ' quodque ipse ad placitum illud modo forma p̄d ' replicand ' placitat ' necesse non habet nec per legem terrae tenetur aliquo modo respondere Et hoc parat ' est verificare unde pet ' Judicium si praed ' Samuel acconem suam praed ' inde versus eum habere debeat c. Joynder in Demurrer Et praedict ' Samuel ex quo ipse sufficien ' materiam in lege in replicacone in sua praedicta ad acconem suam praed ' versus praefat ' Simonem habend ' manutenend ' superius allegavit quam ipse parat ' est verificare Quam quidem materiam idem Simo non dedic ' nec ad ill ' aliqualit ' respondet set verificacon ' ill ' admittere omnino recusat Idem Samuel ut prius pet ' Judicium dampna sua occone capconis injuste detenconis Equuli illius sibi adjudicari c. Et quia Justic ' hic se advisare volunt de super praemissis priusquam Judicium inde reddant dies dat' est partibus praedictis hic usque ad audiend ' inde Judicio suo eo quod iidem Justic ' hic inde nondum c. Denney versus Mazey IN a Replevin the Plaintiff Declared of taking of his Horse Colt at S. in quodam loco vocat ' Townfield The Defendant saith that before the Taking one Elizabeth Mann was seised in Fee de praedicto loco in quo c. and 20 Septemb. Anno primo Willielmi Mariae demised the Premisses to him for a year then next ensuing and that he entred and avowed the taking of the Plaintiffs Horse damage feasant The Plaintiff Replied that the said Elizabeth Mann was seised of the Premisses in Fee and before the Lease to the Avowant viz. the 5th of June in the said first year of the King and Queen she demised to the Plaintiff the Premisses habend ' from the second day of March then last past for the Term of six years by virtue of which he entred and put his Horse into the Premisses and traverseth the Lease made to the Avowant To this the Avowant Demurred generally Pollexfen Chief Justice inclined that the Traverse was no cause of Demurrer tho' it might have been omitted He said there were divers Authorities against Heylars ' Case in the 6 Co. which is Reported to the same effect in Mo. 551. 1 Cro. 658. as 1 Cro. 754. Covert's Case Hob. 81.103 Traverse where the Matter in confessed and avoided and the Books generally are only that there need be no Traverse as the Bishop of Salisbury and Hunt in 3 Cro. 581. and Kellend and White 3 Cro. 494. the other Justices doubted relying upon the Authority of Heylar's Case and Rice and Harveston's Case 2 Cro 299. and Yelv. 221. where 't is said that such a Traverse makes the Plea vitious Vid. Mo. 557. But here the Demurrer being General 't is but matter of Form and clearly aided by the Statute of 27 Eliz. where if one Confess and Avoid and Traverse 't is in nature of a Double Plea Vid. That it is good upon a General Demurrer Edwards and Woodden 3 Cro. 323. So Judgment was by the whole Court given for the Plaintiff Woodward versus Fox Quod vide ante ultimo Termino THe Case was this Term Argued again by Serjeant Pemberton for the Defendant and by Serjeant Powell for the Plaintiff upon the Point Whether the Nomination to the Office being forfeited by the Statute of Ed. 6. it did belong to the King or the Bishop in whose Diocess the Archdeaconry was to make the Register But Pollexfen Chief Justice desired them to Consider Whether the King admitting he had a right by the Statute could grant this Office of the Register before Office found of the Forfeiture Note In case of Simony the Presentation vests in the King without Office Adjornatur Morgan versus Hunt IN Covenant the Plaintiff Declared that the Defendant Let to him a certain House and Lands and Covenanted that he should quietly and peaceably enjoy it without any manner of interruption molestation or disturbance and that by virtue of the said Demise he ented and sometime after the Defendant exhibited a Bill against the Plaintiff in the Court of Chancery wherein he charged the Plaintiff with ploughing up Meadows and the committing of divers Wastes and did obtain an Injunction out of the said Court against the Plaintiff whereby he was interrupted in his Ploughing c. and that afterwards the said Bill was dismissed with 20 l Cofts and so the Defendant had broken his Covenant After a Verdict for the Plaintiff I know not upon what Issue it was moved in Arrest of Judgment First That here was no sufficient Breach set forth It was said that the Law does not take notice of Proceedings in Chancery Poph. 205. it is said If one be possessed of Lands by Extent and by a Decree in a Court of Equity he is forced to pay a Rent out of the Lands this shall not be a legal Eviction or Recovery for so much Secondly The Suit in Chancery here is not touching the Lessees Estate or Title but for Waste which he ought not to do and tho' the Suit might be groundless yet it not relating to his Title or Possession was no breach of Covenant The Judgment was stayed by the Opinion of the whole Court for the last Reason for this was interruption or disturbance within the Covenant the Subject matter of the Suit being for Waste But the Court will take notice of a Suit in Chancery and 1 Cro. 768. an Assumpsit in Consideration of desisting from exhibiting a Bill in Chancery was held a good Consideration Anonymus IN a Covenant That the Defendant should keep in good Repair the House Outhouses and Stables and the Breach assigned was that the Defendant had permitted the Racks in the Stable to be in decay After Verdict for the Plaintiff it was moved in Arrest of Judgment that the Plaintiff had not set forth that the Racks were fixed in the Stable and so part of the Freehold for they might be in the Stable and lye loose
the case of Proxies Davis Rep. 4. It is said the King has power and that by the Antient Law of the Realm to Visit Reform and correct all Abuses and Enormities in the Iurisdiction Spiritual so that an Offence of this nature is a Violation of the Kings Justice and a Transgression of the Rules of his Administration This is indeed the case of all Crimes of a publick nature the King is most evidently injured by them the Indictments run contra coronam dignitatem c. Now who should have the Forfeiture but he that hath the greatest share in the Injury Again by giving of this Forfeiture to the King the end and design of the Statute is like to be best answered By the Preamble the Statute appeareth to be made that worthy persons might be advanced to places where Iustice was to be administred and who is best to be entrusted with this but the King The Court having given these Reasons they came to consider what had been insisted on at the Bar in the behalf of the Bishop It was said that all the Jurisdiction Ecclesiastical in the Diocess was originally placed in the Bishop and the case of Gastrill and Jones 2 Ro. Rep. 646 647. was cited where it is said That the Iudicial power of the Archdeacon was derived from the Bishop he is called Vicarius Episcopi and Oculus Episcopi T is true there are some Archdeacons that have Iurisdictions peculiar and exempt but that is by Prescription or Custom these are taken notice of by Godolphin But there is nothing found of that in the Verdict and so must be taken to be the common case of an Archdeacon and that was agreed It was said this offence was reckoned Simony in the Canon Law And the Bishop had the correction of it as in Smithes Case Owens Rep. 87. This was compared to the Cases of inferiour and subordinate Officers which when they are forfeited the superiour takes advantage as in the Earl of Pembrooks Case and Sir H. Bickly Popham 119. The Keeper of a Walke in a Forest forfeited this went to him that had the custody of the Forest so in Bridgman's Rep. 27. He that hath Liberty of a Park in a Forest when forfeited it goeth to the Lord of the Forest 39 H. 6. 32. The Keeper of the Marshalsey of the Kings Bench forfeited his Office the Duke of Norfolk Great Marshal of England took advantage of it To these Cases it was said by the Court That they differed much from the Case at the Bar. First In the Cases cited the Inferior Officer is put in by the Superior and in some Cases to answer for his miscarriage ubi respondeat Superior they are Offices incident as the County Clark to the Sheriff Mittons Case 4 Co. and Scroggs Case of the Exigenter to the Chief Justice of the Common Pleas Dyer 175. But here the Bishop doth not put in the Register of the Archdeacons Court He may make one to supply that place if it falls void when the Archdeaconry is vacant but then the next Archdeacon removeth him and puts in another Secondly The Forfeitures in the Cases cited were upon Breaches of Conditions in Law annexed to the Offices and t is a Rule in Law that the Grantor is to take advantage of the Breach of all Conditions but we are in case of a Forfeiture for offending against an Act of Parliament And the Court said tho' it might be supposed originally the Jurisdiction within the Diocess was lodged in the Bishop yet the Archdeacons Court hath time out of mind been settled as a distinct Court 4 Inst 339. and the Statute of 24 H. 8. cap. 12. takes notice of the Consistory Court which is the Bishops Court and the Archdeacons Court from which there lies an Appeal to the Bishops Court in 2 Ro. Rep. 150. Chivertons Case The Archdeacon is said to have a Court of himself and that the Courts of Westminster take notice thereof Thâ—s may be resembled to the Case of the Torn and Leet in the County the Leet is supposed to have been derived out of the Torn and yet upon the Forfeiture of a Leet it shall not go to the Sheriff As to the second Point it was resolved by the Court That the King might in this Case make a Register before Office found It was agreed That where an Estate of Freehold was forfeited to the King by Act of Parliament that an Office would be requisite to vest it in the King and that by the Statute of 5 Edw. 6. against the sale of Offices all the Estate and Interest c. of the Offender is forfeited But Pollexfen Chief Justice conceived this was not an Estate in the Archdeacon but only a Power to appoint a Register and in the nature of a chose en Action like the case of Offices in the King where the King may grant or nominate to the Office but hath not the Office in him to use or execute But he conceived and with that the rest of the Court agreed that however as to the present vacancy the right to supply that was a Chattel separate from the Inheritance and the King might supply the present avoidance before any Office found tho' it be admitted that the right of nomination in point of Estate should not vest in the King before Office found Where the Kings Tenant dies seised of an Advowson or in case of an Outlawry tho' the Estate is not in the King before Office yet if the Church becomes void the King shall present before Office 20 Edw. 4. 11. The case so put of an Advowson appendant Stamf. Prerog 54. B. T is a Transitory Chattel the present avoidance Lanes Rep. 43 64. 1 Ro. Rep. 326. and Jones Rep. 425. So the Body of the Ward is in the King before Office In Case of Simony the King shall present without Office Sed nota 31 Eliz. giveth the Presentation pro hac vice only And the Court said that the Verdict found that the Plaintiffs had a Grant from the Archdeacon also so that if nothing be in the King till Office it must remain in the Archdeacon so his Grant will be good till Office found There are no disabling words in the Statute but only shall Lose and Forfeite so quacunque via data the Plaintiffs ought to have Iudgment Harris versus Parker Ante ult ' Term. IN an Action of Debt for 99 l Rent the Plaintiff Declared upon two Demises which he laid at the Parish of St. Martin in the Fields in Middlesex of a Messuage and divers Lands quae praemissa sunt struat ' jacent ' existent in super acclivitatem de Hampstead Anglicè the rise of Hampstead Hill to hold for seven years reserving upon each Demise eighteen pounds yearly Rent The Defendant pleaded Actio non quia dicit quod praed ' Johannes Harris tempore dimiss ' praed ' nihil habuit in Tenementis praedict ' unde c. The Plaintiff Replied That long before the
ipse paratus est verificare Quam quidem materiam praedicta Priscilla non dedic ' nec ad eam aliqualit ' respondit set verificacon ' illam admittere omnino recusavit ut prius per ' Judic ' quod praed ' Priscilla ab accone sua praed ' versus eum habend ' praecludatur c. Et quia Justic ' hic se advisare volunt de super pÌ„missis praed ' priusquam Judic ' inde reddant dies dat' est partibus praed ' hic usque à die Sancti Michaelis in tres Septimanas de audiendo inde Judicio suo eo quod idem Justic ' hic nondum inde c. Priscilla Web Widow versus Moore THe Plaintiff Declared in an Action upon the Case upon Five several Promises one whereof was upon a Quantum meruit for finding Meat and Drink for the Defendant at his Request The Defendant pleaded in Bar an Outlawry of the Plaintiff in this manner viz. Quod quidam S.C. al' scilicet Termino Sanctae Trinitat ' anno regni nuper Regis Jacobi secundi tertio implacitavit pÌ„d ' Priscillam in Cur ' dicti nuper Regis de Banco hic de placito trangres praedict ' quae Priscilla pro eo quod non venit in praedict ' Cur ' de B. praed ' praefat ' S. C. inde responsur ' secundum legem consuetud ' hujus regni Angl ' in Exigendo posita fuit ad utlagand ' in Com' Wiltes ' ea ratione postea scilicet quinto decimo die Maij anno regni dicti nuper Regis quarto in Com' Wiltes ' praed ' debito juris modo ad Sectam praed ' S. C. waviata fuit adhuc waviata existit prout per recordum processum inde eadem Cur ' dicti nuper de Banco praed retornat ' modo residens plen ' liquet Quae quidem Utlagaria adhuc in suis robore effectu remanet minime reversat ' seu annihilat ' hoc parat ' est verificare per Recordum illud unde pet ' Judicium si action ' c. And to this Plea the Plaintiff Demurred 1. For the Outlawry could not be pleaded in Bar to an Assumpsit upon a Quantum meruit for there is no certainty of Debt appearing till the thing comes to be valued and so cannot be forfeited It was doubted Whether Debt upon a Simple Contract was forfeited till 4 Co. Slade's Case But it was Resolved by the Court in this Case that the Outlawry was a good Plea in Bar for the Consideration created a Debt tho' that Debt was not reduced to a certain Sum. Markham and Pitt in 3 Leon. 205. Outlawry pleaded in Bar to Trover where it lies all in Damages But this Action arose upon a property of Goods which would have been forfeited 3 Leon. 197. where the King had granted all Forfeitures that accrued to him by the Outlawry of J. S. and the Grantee brought an Action But an Exception was taken to the pleading of the Outlawry for it ought to have been set forth that the Plaintiff did not appear upon the Exigent and upon that waviata fuit debito juris modo is too general Fitzherb Account 91. Traverse 31. Stamford 148. And of this the Court doubted and appointed to search Presidents of the Pleading Et Adjornatur Kempe versus Cory al' Quod vide ante ultimo Termino THe Case was now moved again and as to the Matter in Law it was held clear that where A. is seised of a Third part in Common and B. of the other two parts in Common with A. and A. let his Third part reserving Rent and B. puts in his Cattle or a Stranger by his License that such Cattle are not Distrainable for the Rent But the Doubt was because the Avowry was in loco in quo ut in super praedict ' tertiam partem c. Whether the Plaintiff should not have traversed the Taking in tertia parte tantum Vide the Case of Newman and Moor in Hob. 80. 103. And note there that the Traverse was held unnecessary And the Court held clearly that it would have been impertinent to make a Traverse in this Case for the Matter in the Avowry was confessed and avoided CASES Adjudged upon Writs of ERROR IN THE Exchequer Chamber Termino Sancti Michaelis Anno 1 W. M. BY Pollexfen Chief Justice Powell Justices Rokeby Justices Ventris Justices Atkyns Chief Baron Nevill Barons Lechmore Barons Turton Barons Willows versus Lydcot VPon a Writ of Error upon a Iudgment in Ejectment in B.R. which was brought for a Messuage in St. Martins in the Fields Vpon the General Issue pleaded and a Special Verdict found the Point was to this effect William Shelton was seised in Fee of the said Messuage and of dvers other Messuages situate in the said Parish of St. Martin and other Parishes and made his Will in Writing and thereby Devised his Houses in the other Parishes to divers Charitable Vses and then devised to one Edward Harris and Mary his Wife the Messuage in question for their Lives and then in the following Clause the better to enable his Wsfe to pay his Legacies he devised all his Messuages Lands Tenements and Hereditaments whatsoever within the Kingdom of England not above disposed of to have and to hold to her and her Assigns for ever and made her Executrix And the Verdict was found That Edward Harris and Mary his Wife were dead and that the Testator left sufficient to his Wife to pay his Legacies without the Reversion of the said Messuages devised to Harris and his Wife That the Lessor of the Plaintiff was Heir at Law to the Testator and that the Defendants claimed from Anne Wife of the Testator c. si super totam materiam c. And Judgment was given in the Kings Bench for the Plaintiff And upon a Writ of Error brought in the Exchequer-Chamber it was this Term Argued before the Justices and Barons and by the Opinion of them all the Judgment was Reversed For they held that there were words in the Devise to the Testators Wife that would carry the Reversion of this House as an Hereditament undisâ—oâ—d of Vide the Case of Whâ—eler and Walroon in Allen's Rep. 28. one having a Mannor and other Lands in Somerset-shire Devised the Mannor to A. for Six years and part of the other Lands to B. in Fee and then comes this Clause and the rest of my Lands in Somersetshire or elsewhere I give to my Brother and it was adjudged by the word Rest the Reversion of the Mannor passed as well as the Lands not Devised before A Case about 20 years ago was cited by the Counsel for the Defendant in the Writ of Error between Bowyer and Milbanke in a Borough where a Nuncupative Will would pass Lands by the Custom a man upon his Death-Bed being asked about his Will said I Give All to my Mother and repeated the
whom the King shall have it unless there be a particular person grieved 188 189 267 268 A Forfeiture shall not bind in Equity where a thing may be done afterwards or Composition made for it 352 G Gaming See Assumpsit DIce Play not unlawful in it self tho' prohibited by several Statutes to certain persons and in certain places 175 Grant A Deed having no Execution to make it work as a Grant shall operate as a Covenant to stand seized 261. and by the Statute of Vses 266 Where Land is granted by Deed-Pool in Consideration of Natural Affection without Enrolment or Attornment whether it shall operate as a Covenant to stand seized or be void 318 H Habeas Corpus NO Habeas Corpus to be moved for in the Common Pleas unless it concerns a Civil Cause yet the contrary permitted in the case of an Attorney of that Court 24 Half-Blood The Half-Blood shall have equal Share with the Whole-Blood in Distribution upon the Statute of 22 23 Car. 2. c. 10. 317 Heir See Mortgage Heirs is Nomen collectivum and is sometimes so taken when 't is only Heir in the Singular Number 313 Heir and not Executor shall have the Surplusage of Lands leased for payment of Debts 359 I Infant INfants not foreclosed in Chancery till they come of Age 351 Intent No Exception to Vnum Vasum Vini Hispanici that is not said what the Vessel was made of for it is intended to be made of Wood 67 The Name of a Grantor omitted in an Indenrure supplied by Intendment 142 Racks in a Stable shall be intended to be fixt and need not to be shewn to be so in Pleading 214 Every Agreement must have some reasonable Construction that may may be consistent with the Intent of the Parties and therefore if a man agrees with another that he shall make a Drain through his Ground he shall not make it through the parties Stables or Buildings in case there are other places proper 278 In a Special Verdict nothing shall be intended that is not found 330 Imprisonment See Pleading Impropriation Whether a Rectory Impropriate being made a Lay-Fee can be sequestred by the Court Christian for not Repairing the Chancel 35 Ireland See Naturalization Of its Conquest and the Introducing the Laws of England there 4 The Power of an Act of Parliament in Ireland 5 K King See Forfeiture ALlegiance due to the Natural and not the Politick Person of the King 3 In case of things which are Nullius in Bonis where no visible Right appears the Law gives them to the King as Derelict Lands Treasure Trove Extra-parochial Tythes c. So where the Right is equal between the King and the Subject the Kings Title hath the Preference 268 The King is the Fountain of Justice and that as well Ecclesiastical as Civil and may by the Ancient Law of the Realm visit reform and correct Abuses in the Jurisdiction Spiritual 268 In what Cases Forfeitures are vested in the King before Office found and where not 270 L Law A Thing for which there is neither Practical Custom Judicial Precedent or Act of Parliament to warrant may well be judged to be against Law 7 The clearest way how to understand any Law is to consider what was the Judgment of those People among whom and the Times in which it was practical 17 To excite the People to the disobedience of a Law of a Publick Nature is the highest Offence under High Treason 23 Lease What Lease capable of a Release to work a Bargain and Sale 35 For 99 years if two Persons shall so long live determines upon the death of either 74 Legacy See Executor Legatees are to have their Proportion where the Assets fall short 358 Legatees shall refund against Creditors and if the Ecclesiastical Court give Sentence for a Legacy a Prohibition lies unless they take Security to refund 358 360 Licence See Distress Limitation See Original Mortgage Suit to recover a Depositum in Trust for a Feme Covert not barr'd by the Statute of Limitations 345 London Of the Custom of London relating to Orphans Money 340 341 M Market WHere a Market is granted to the Damage of another the Patent may be repeal'd in a Scire facias notwithstanding a Writ of Ad quod Damnum had been executed for the Return of that Writ was not conclusive 344 Marriage Whether a Man may marry his Great Uncle's Widow 9. He may 18 20 The four Statutes relating to Marriage expounded 11 infr Tho' the Stat. 32 H. 8. c. 38. allows all persons to Marry that are without the Levitical Degrees yet persons Pre-contracted or under a perpetual Impotence are prohibited to Marry 15 To Marry his Brother's Wife prohibited by the Statute tho' not by the Levitical Law 17. So of his Wives Sister ibid. Marriages in the ascending and descending Line prohibited without limit not so between Collaterals and the Reasons 18 The Ecclesiastical Courts have Conizance to punish persons Marrying within the Levitical Degrees but not to determine what is within the Levitical Degrees and what not 22 Agreements to settle in Consideration of Marriage favoured in Chancery 353 354 357 Marriage restrictions how to be observed 365 Mine If a Man opens a Mine in his own Land he may dig and follow the Vein under another Man's Ground 342 But if the Owner did there also he may stop his further progress ibid. Mortgage Where Lands are Mortgaged thrice over the third Mortgagee may buy in the first Incumbrance to protect his own Mortgage and he hath both Law and Equity for him 338 He shall hold the Land against the second Mortgagee until be be satisfied both the Money he paid the first Mortgagee and also his own which he lent upon the last Mortgage ibid. But where only Part of the Lands are mortgaged to the first and the whole to the second and after to the third here if the third buys in the first Title it shall protect only that part that is in the first Mortgage 339 A Purchaser or Mortgagee coming in upon a Valuable Consideration without Notice and purchasing in a precedent Incumbrance it shall protect his Estate tho' he purchased in the Incumbrance after Notice of a second Mortgage ibid. Mortgages not relievable in Chancery after 20 years for the Stat. 21 Jac. 1. c. 16. limits the time of Entry to that number of years and 't is best to square the Rules of Equity as near the Rules of Reason and Law as may be 340 Upon a Mortgage in Fee the Redemption Money shall be paid to the Executor and not to the Heir 348 351 Where by a Devise of all his Lands Lands in Mortgage pass 351 Where a man 's own Covenant shall restrain him from his Equity of Redemption and where it shall not 365 Murder Husband kills a Man in the act of Adultery with his Wife Manslaughter and not Murder the Provocation being exceeding great Vide the First Part of these Reports 158 N Naturalization WHether
83 W Wager of Law WHere a Man shall be admitted to Wage his Law in an Action of Debt and the manner of doing it 171 Waver An Executor cannot Wave a Term unless he renounce the whole Executorship 209 Way How a man may Intitle himself to a Foot Way 186 Wills See Devise Where there is a Custom to pass Lands by a Parol or Nuncupative Will yet they shall not pass without express and plain Words to shew the Intention 286 A Cumulative Provision in a Will shall not double a Portion unless plainly proved that the Testator intended to do so 347 348 Writs Where a Writ shall be amended according to the Instructions given to the Cursitor 46 49 152 Where an Original Writ shall be new made according to the Instructions first given to the Cursitor 130 Usual for a Plaintiff to take out his Original after Judgment entred 154 ERRATA in the Second Part. PAg. 8. lin 4. read Ireland p. 10. l. ult r. Canon Law p. 16. in fine r. Judaical p. 21. l. 23. r. Lands Freehold c. p. 50. l. 15. r. 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