for an excessive Distress for it is a private matter and the party ought to bring his Action To stay Haman Truant AN Action upon the Case brought upon a bargain for Corn and Grass c. The Defendant pleads another Action depending for the same thing The Plaintiff replies that the bargains were several absque hoc that the other Action was brought for the same cause The Defendant demurs specially for that he ought to have concluded to the Country Polyxfen When there is an affirmative they ought to make the next an Issue or otherwise they will plead in infinitum 3 Cro. 755. and accordingly Iudgment was given for the Defendant Fox alii Executors of Mr. Pinsent Vide supra 47. INdebitat Assumpsit The Defendant pleads that two of the Plaintiffs are Infants and yet they all Sue per Attornatum The question is if there be two Executors and one of them under age whether the Infant must sue per Guardianum and the other per Attornatum or whether it is not well enough if both sue per Attornat Offley spake to it and cited 2 Cro. 541. Pasch 11 Car. 288. Powell's case Styles 318. 2 Cro. 577. 1 Inst 157. Dyer 338. Morton I am of Opinion that he may Sue by Attorney as Executor though if he be Defendant he must appear by Guardian Rainsford I think it is well enough and I am led to think so by the multitude of Authorities in the point And I think the case stronger when Infants joyn in Actions with persons of full age He Sues here in auter droit and I have not heard of any Authority against it Twisden concurred with the rest and so Iudgment was given Moreclack Carleton UPon a Writ of Error out of the Court of Common Pleas one Error assigned was that upon a relicta verificatione a misericordia was entred whereas it ought to have been a capiatur Twisden The Common-Pleas ought to certifie us what the practice of their Court is Monday the Secondary said it was always a Capiatur It s true in 9 Edw. 4. it is said that he shall but be amerced because he hath spared the Iury their pains and 34 H. 8. is accordingly but say they in the Common Pleas a Capiatur must be entred because dedicit factum suum So they said they would discourse with the Iudges of the Common Pleas concerning it The King versus Holmes MOved to quash an Indictment of Forcible Entry into a Messuage passage or way for that a passage or way is no Land nor Tenement but an Easement and then it is not certain whether it were a passage over Land or Water Yelv. 169. the word passagium is taken for a passage over Water Twisd You need not labour about that of the passage we shall quash it as to that but what say you to the Messunge Jones It is naught in the whole for it is but by way of recital with a quod cum he was possessed c. Et sic possessionatus c. but that Twisden said was well enough Jones Then he saith that he was possessed de quodam Termino and doth not say annorum Twisden That 's naught And the Indictment was quash'd An Action was brought against the Hundred of Stoak upon the Statute of Hue and Cry and at the Trial some House-keepers appeared as Witnesses that lived within the Hundred who being examined said they were Poor and paid no Taxes nor Parish Duties and the question was whether they were good Witnesses or not Twisden Alms-people and Servants are good Witnesses but these are neither Then he went down from the Bench to the Iudges of the Common-Pleas to know their Opinions and at his return said That Iudge Wyld was confident that they ought not to be sworn and that Iudge Tyrrell doubted at first but afterwards was of the same Opinion their reason was because when the money recovered against the Hundred should come to be levied they might be worth something Hoskins versus Robins Hill 23 Car. 2. Rot. 233. IN this case these points were spoke to in Arrest of Iudgment viz. 1. Whether a Custom to have a several Pasture excluding the Lord were a good Custom or not It was said that a prescription to have Common so was void in Law and if so then a prescription to have sole Pasture which is to have the Grass by the mouth of the Cattle is no other then Common appendant Daniel's case 1 Cro. so that Common and Pasturage is one and the same thing They say that it is against the nature of Common for the very word Common supposeth that the Lord may feed I answer if that were the reason then a man could not by Law claim Common for half a year excluding the Lord which may be done by Law But the true reason is that if that were allowed then the whole profits of the Land might be claimed by prescription and so the whole Land be prescribed for The Lord may grant to his Tenants to have Common excluding himself but such a Common is not good by prescription The second point was whether or no the prescription here not being for Beasts levant couchant were good or not for that a difference was made betwixt Common in grosse and common appendant viz. That a man may prescribe for Common in grosse without those words but not for Common appendant 2 Cro. 256. 1 Brownl 35. Noy 145. 15 Edw. 4. fol. 28. 32. Rolls tit Common 388. Fitz. tit Prescription 51. a third point was whether or no these things are not help'd by a Verdict As to that it was alledged that they are defects in the Title appearing on Record and that a Verdict doth not help them Saunders contra In case of a Common such a prescription is not good because it is a contradiction but here we claim solam Pasturam Now what may be good at this day by grant may be claimed by prescription As to the Exception that we ought to have prescribed for Cattle levant couchant its true if one doth claim Common for Cattle levant couchant is the measure for the Common unless it be for so many Cattle in number but here we claim the whole Herbage which perhaps the Cattle levant couchant will not eat up Hales Notwithstanding this prescription for the sole Pasture yet the Soil is the Lords and he has Mynes Trees Bushes c. and he may dig for Turfes And such a grant viz. of the sole Pasturage would be good at this day 18 Edw. 3. though a grant by the Lord that he will not improve would be a void grant at this day Twisden My Lord Coke is express in the point A man cannot prescribe for sole Common but may prescribe for sole Pasture And there is no Authority against him And for levant couchant it was adjudged in Stoneby Muckleby's case that after a Verdict it was help'd And Iudgment was given accordingly Anonymus AN Action of
Modern Reports OR SELECT CASES Adjudged in the COURTS OF Kings Bench Chancery Common-Pleas and Exchequer since the Restauration of HIS MAJESTY King Charles II. Collected by a Careful Hand LONDON Printed for T. Basset J. Wright R. Chiswell and S. Heyrick MDCLXXXII THE PUBLISHER TO THE READER THese Reports the first except the Lord Chief Justice Vaughans Arguments that have been yet printed of Cases adjudged since His Majesties happy Restauration though they are not Published under the Name of any Eminent Person as some other Spurious Ones have been to gain thereby a Reputation which in themselves they could not Merit yet have been Collected by a Person of Ability and Judgment and Communicated to several of known Learning in the Laws who think them not Inferior to many Books of this Nature which are admitted for Authority A great and well-spread Name may be Requisite to render a Book Authentick and to defend it from that common Censure of which this Age is become so very liberal But it s own worth is that only which can make it Vseful and Instructive The Reader will find here several Cases as well such as have been Resolved upon our modern Acts of Parliament as others relating to the Common Law which are primae Impressionis and not to be found in any of the former Volumns of the Law and the Pith and Substance of divers Arguments as well as Resolutions of the Reverend Judges on many other weighty and difficult Points And indeed though in every Case the main thing which it behoves Vs to know is what the Judges take and define to be Law yet the short and concise way of reporting it which is affected in some of our Books doth very scantily answer the true and proper end of reading them which is not only to know what is Law but upon what Grounds and Reasons 't is adjudged so to be otherwise the Student is many times at a loss and left in the dark especially where he finds other Resolutions which seem to have a tendency to the contrary Opinion In this respect these Reports will appear to be more satisfactory and inlightning than many others several of the Cases especially those of the most important Consideration containing in a brief and summary way what hath been offered by the Counsel Pro and Con and the Debates of the Reverend Judges as well as their Vltimate Resolutions than which nothing can more Contribute to the Advantage of the studious Reader and to the setling and guidance of his judgment not only in the Point controverted but likewise in other matters of Law where the Reason is the same Ubi eadem ratio idem jus As to the truth of these Reports though the modesty of the Gentleman who Collected them hath prevailed above the importunity of the Book-Seller and he hath rather chosen to see his Book than himself gain the Publick Acceptation and Applause whereby it hath lost some seeming Advantage which the prefixing of his Name would have undoubtedly given it yet the Reader may rest assured that no little Care hath been taken to prevent any Mistakes or Mis-representations The Judgments having been examined and the Authorities here cited industriously compared with the Books out of which they were taken A TABLE of the Names of CASES contain'd in this Book A. ABbot and Moor. 12 Jacob Aboab 107 Addison versus Sir John Otway 250 Alford and Tatnel 170 Amie and Andrews 166 Anonymus 75 81 89 105 113 163 169 170 180 185 200 209 211 213 216 249 253 258 272 Daniel Appleford 82 Atkinson and Rawson 208 Austin and Lippencott 99 B. BAker and Bulstrode 104 Bascawin and Herle versus Cook 223 Bassett and Bassett 264 Barker and Reate 262 Barrow and Parrott 246 Barry and Trebeswycke 218 Sir Anthony Bateman's Case 76 Bear and Bennett 25 Beckett and Taylor 9 Benson and Hodson 108 Birch and Lake 185 Bird and Kirke 199 Birrel and Shaw 24 Blackburn and Graves 102 120 Blissett and Wincott 13 Blythe and Hill 221 225 Bonnefield 70 Boswill and Coats 33 Bradcatt and Tower 89 Brooking and Jennings 174 Brown versus 118 Brown versus London 285 Buckly and Turner 43 Buckly and Howard 186 Bucknal and Swinnock 7 Butler and Play 27 Burgis and Burgis 114 Burnett and Holden 6 Burrow and Haggett 219 C. CAlthrop and Philippo 222 Caterall and Marshall 70 Clerk versus Rowel and Phillips 10 Clerk and Heath 11 Cockram and Welby 245 Cole and Forth 94 Compton and uxor versus Ireland 194 Coppin and Hernall 15 Cox and St. Albanes 81 and Crisp versus the Mayor of Berwick 36 Crofton 34 D. COrporation of Darby 6 Darbyshire and Cannon 21 Davies and Cutt. 231 Daw and Swaine 4 Deering and Farrington 113 Delaval versus Maschall 274 Dodwell and uxor versus Burford 24 Draper and Bridewell 121 Sir Francis Duncomb's Case 285 Dyer and East 9 E. ELlis and Yarborough 227 Edwards and Weeks 262 F. FArrer and Brooks 188 Farrington and Lee. 268 Fettyplace versus 15 Fitsgerard and Maschal 90 Fits and al. versus Freestone 210 Fountain and Coke 107 Fowl and Doble 181 Fox and al. Executors of Pinsent versus Tremayn 47 72 296 Franklyn's Case 68 Furnis and Waterhouse 197 Fry and Porter in Chancery 300 G. GAvel and Perked 31 Gayle and Betts 227 Glever and Hynde 168 Goodwin and Harlow 2 Gostwick and Mason 3 Grafton 10 Green and Proude 117 H. HAll and Wombell 7 Hall and Sebright 14 Jacob Hall's Case 76 Hall and Booth 236 Haley's Case 195 Haman and Truant 72 Haman and Howell 184 against the Hambourough Company 212 Owen Hanning's Case 21 Harwood 77 79 Haspurt and Wills 47 Hastings 23 Healy and Warde 32 Heskett and Lee. 48 Higden versus Whitechurch 224 Holloway 15 Horn and Ivy. 18 Horn and Chandler 271 Horton and Wilson 167 Hoskins versus Robins 74 Howell and King 190 Hughes and Underwood 28 Humlock and Blacklow 64 I. JAmes and Johnson 231 Jefferson and Dawson 29 Jemy and Norrice 295 Ingram versus Tothill and Ren. 216 Jones and Tresilian 36 Jones and Wiat. 206 Jones and Powel 272 Jordan and Fawcett 50 Jordan and Martin 63 Justice and White 239 K. The King versus Baker 35 Morrice 68 Leginham 71 Holmes 73 Sir Francis Clark 195 Thornbor ' and Studly 253 The Bishop of Worc. Jervason and Hinkly 276 Leginham 288 Neville 295 King versus Standish 59 Sir John Kirle versus Osgood 22 Knowles versus Richardson 55 L. LAke versus King 58 Lampiere and Meriday 111 Lassells and Catterton 67 Lee and Edwards 14 Doctor Lee's Case 282 Legg and Richards 77 Leginham and Porphery 77 Lepping and Kedgewin 207 Liese and Satingstone 189 Love versus Wyndham and Wyndham 50 Lucy Lutterell versus George Reynell George Turbervile John Cory and Anne Cory 282 M. MAddox 22 Magdalen-Colledge Case 163 Major and Stubbing versus Bird and Harrison 214 Maleverer and Redshaw 35 Manby and Scot. 124 Martin and Delboe 70 Medlicot and Joyner 4 Gabriel Miles's Case 179
That the Plaintiffs should enjoy the same without interruption by them or any other person or persons whatsoever and alledge that a Stranger claiming a Title did make an Entry upon them and kept them out of possession To this the Defendants plead a local Plea to wit that the said Stranger did not enter upon the Plaintiffs c. upon which Issue is joyned Then do the Plaintiffs make a suggestion and pray a Venire facias into the next County Vpon which there is a Trial. Jones conceived this to be a mis-trial and that the Venire ought to have been de vicineto of the Castle of York where the Covenant is alledged to have béen made First this fault is not aided by any of the Statutes of Jeoffayles not by the last and greatest of all That aids where the Venire facias is awarded from another place then it ought to be but not when awarded from another County which is my Exception That at the Common Law this Venire facias is not well awarded I relie upon Dowdale's case 6 Rep. if an Action be brought upon a matter done out of the Kingdom the Trial shall be where the Action is laid In our case the Action is grounded upon an Indenture supposed to be made within the County of York but Issue is joyned upon a matter done out of the Kingdom for so Berwick is This Issue I conceive ought to be tryed where the Action is laid It is true in the case of Wales the Law is otherwise for I find that Wales is parcel of the Realm of England though the Kings Writs do not run there But Berwick is part of the Realm of Scotland and was conquered by King Edw. 4. and Acts of Parliament name Berwick When Calice was in possession of the Kings of England and a matter arising within Calice came in Issue was ever any Venire facias awarded to Dover Twisd There are two Presidents of such Trials one in 12 Eliz. Rot. 630. and in 2 Rolls 97. I have asked my Brother Withrington who was a knowing man how it came to pass that Berwick was put into Acts of Parliament he said he knew no other reason then that the Recorder of Berwick was at first in Parliament and desired it and therefore it hath continued ever since Mr. Weston said that 3 Cro. 465. was an Authority In this case it hapned that during the Cur. advisare vult one of the Plaintiffs dyed and the question was what should be done Twisd There is a case in Latch wherein this difference is taken viz. If there be no Continuance entred you may enter the Iudgment as at the day in Bank but if Continuances are entred then you cannot go back but must enter the Iudgment to the time of the Continuances It was put off for Counsel to be heard in it Smith Wheeler sup 16. IN this case Serjeant Maynard was about to argue that the residue of the term was not forfeited to the King Keel Brother Maynard you would do well to be advised whether or no you being of the Kings Counsel ought to argue in this case against the King Maynard answered that the Kings Counsel would have but little to do if they should be excluded in such cases and that Serjeant Crew argued Haviland's case in which there was the like question Twisd In Stone Newman's case I know the Kings Counsel did argue against Estates coming to the Crown but if my Lord thinks it not proper my Brother Maynard may give his argument to some Gentleman at the Bar to deliver for him Afterward Term. Pasch 22 Car. 2. 1670. the case came to be argued again Jones argued for the Plaintiff in the Writ of Error 1. Whether this Settlement be fraudulent or no that Fraud is not to be presumed he cited the Chancellor of Oxford's case 10th Rep. 1 Cro. 549 550. But for the second point he held that here is a Trust forfeitable to the King He quoted Sir John Duncomb's case 2 Cro. That the Trust in this case is forfeited he proved from the nature of a Trust which is an equitable Interest or a right of perception of the profits of an Estate the cestuy que Trust hath jus habendi jus disponendi And though he that hath a Trust hath in Law neither jus in re nor jus ad rem yet in Equity he hath both In Equity whatever I have a right to dispose of I have a right to take the profits of For if a man makes a Conveyance to the use of one and his heirs in Trust that he shall convey over though it is not exprest that he shall take the profits yet he shall take them Now in the second Proviso there is a double expression one that amounts to a Revocation the other amounting to a disposition or limitation Now he that hath a power of disposition hath a right that may be forfeited And therefore the Duke of Norfolk's case comes not to this for we are not in the power of Revocation I decline that but we are in a power of disposition Now this is good by way of Trust in Law indéed such a Proviso is naught but in a Trust the intention of the parties carries it I observe in forfeitures at the Common Law where a man hath only jus disponendi though he hath no Estate yet he may forfeit it Plo. Com. 260. A man is possest of a term in the right of his wife though he hath no Estate himself yet he may forfeit it and the reason is because he hath jus disponendi If a man might by such a disposition as this protect his Estate from being forfeited little Land would come to the Crown upon Attainders There are two badges of Ownership the one is a perception of the profits the other a power of disposing both which are in our case and a favourable construction ought not to be put upon a Déed for encouragement of Traitors Winnington contra As for the first point the Fraud ought to be found and this Lease was made long before the Attainder or the Treason committed For the second point the question will be what our Law calls a Trust Then I shall examine whether there was such a thing in Mayn at the time of his decease A Trust I find to be a confidence reposed in the person that another shall take the profits and that the Trustée shall Convey according to his directions this I gather from these books viz. Plowd 352. Delamere's case 1 Rep. 121 122. Co. Lit. 272. Now if these two qualities or either shall fall in this case then Simon Mayn had no Trust to forfeit For that the case will depend upon the true-stating the words of the Deed. For the first Proviso it doth not cohere with any of these qualities for by vertue of that Proviso he could not be said to have any Right he hath no jus disponendi but upon Contingencies If he have no Children he hath no
remedy by way of Appeal It may be objected that there can be no Appeal hither because it is a spiritual Corporation Now I say this is not a spiritual Corporation as appears by the foundation and I am of Opinion that if a Corporation be all of spirituall persons yet unless there be a spiritual end it is no spiritual Corporation but a Lay-one But if it be a spiritual Corporation yet Deprivation is a temporal act Dyer 209. Another Objection may be That the Founder hath provided that there shall be no Appeal I answer the Founder cannot by his foundation exclude Legal remedies against wrong A Custom which is the strongest Foundation doth not bind a man up from his Legal remedy Litt. Sect. 212. If a man should dispose of his Estate by Will and provide therein that if any difference should arise concerning the Execution of the same that it shall be determined by such and such and no Suit commenced upon it at the Common Law this would be a vain appointment he must not erect a Iurisdiction of his own to oust the Kings Courts of theirs Coleman I conceive this is such a Colledge as no Mandamus shall go to it in any case whatsoever for it is but a private Society and hath no influence upon the publick In Ryly's Records we find that Mandamus's were only Letters to Colledges c. and there were no Iudicial Mandamus's till Bagg's case and I never knew them go but when the party had not only a Freé-hold but one that was of publick concern Now a Fellowship of a Colledge is for a private design only to study and if you grant a Mandamus in this case whither will it go at last Then the Foundation was to a spiritual intent and what is committed to the Ecclesiastical Power and Iurisdiction this Court doth preserve Ecclesiastical men hold in Eleemosynam Litt. Sect. 136. Linwood de Religiosis domibus When Colledges are founded under rule and order it doth give the Bishop Iurisdiction so that this Court will not enquire into this matter no more than it will enquire into causes of Deprivation and matters relating to the Institution of Clergy-men It has béen denied that a Fellow of a Colledge can bring an Assize But as a Prebend hath two capacities sole and aggregate so a Fellow is a Member of a Corporation aggregate and hath a sole capacity in respect of his Fellowship For a Church-Warden who is admitted according to the course of the Ecclesiastical Law a Mandamus will not lie Vide 6 H. 7. 10. Twisden In one Patrick's case we all held that a Colledge was a Temporal Corporation Hales There is a reason given in Dyer why a Mandamus will not lye in the case there viz. because it was prayed to be awarded to a Temporal Corporation Coleman It doth appear by the Return that the Founder hath appointed a Visitor now to him there may be an Appeal and we have returned the Sentence of the Visitor and need not return the cause of the Sentence And for Books I do oppose Rolls tit Prerogative Huntly's case 209. to Specott's case and Ken's case in the Reports In our case the party has a remedy elsewhere and therefore he shall not come hither If a Mandamus shall lie for a Mastership Fellowship or Schollarship it will in time come to lie for turning out of Commons and what a combustion will this raise then The Niceties of Husband and Wife were said by the Iudges in Scott's case to be proper for the Spiritual Court and not fit to be brought before the Iudges Hales That a Mandamus lies I will not positively deny but whether is it fit for us to proceed after this Return It must be taken for granted that it is not a spiritual Corporation if it were you ought to Appeal to the Visitor and then to the Delegates It is a private Society as an Inns of Court and I confess that Mandamus's do generally respect matters of publick concern I never heard of a Mandamus for a Monk If there be a Iurisdiction in the Visitor and he hath determined the matter how will you get over that Sentence The Chancellor is Visitor of all the Kings Frée-Chappels and the 2 H. 5. doth make him so of all Colledges of the Kings Foundation Suppose a Temporal Court over which we have Iurisdiction do give Iudgment in Assize to recover an Office so long as that Iudgment stands in force do you think that we will grant a Mandamus to restore him against whom the Iudgment is given Twisden In all Eleemosinary things there are Visitors appointed either by Law or by Creation of the party Hales The Frée-Chappels of Windsor and Wolverhampton are not of Spiritual Iurisdiction Hales At this rate we should examine all Deprivations Suspensions Elections c. and by the 13 of the Qu. the Laws of the Vniversity are confirmed Hales We ought not to grant a Mandamus where there is a Visitor but in this case the Visitor hath given Sentence Mors Sluce A Trial at Bar. An Action upon the case was brought against a Master of a Ship who had taken in Goods to Transport them beyond Sea for that he so negligently kept them that they were stolen away whilst the Ship lay in the River of Thames Maynard insisted upon it that the Master was not chargeable say they he is chargeable whilest he is here but when he is gone out of the Realm he is not chargeable though the Goods be taken from him Which distinction he said had no foundation in Law Hales It will lye upon you that are for the Defendants to shew a difference betwixt a Carrier and a Master of a Ship And it will lye upon you that are for the Plaintiff to shew why the Master of a Ship should be charged for a Robbery committed within the Realm and not for a Pyracy committed at Sea It was urged for the Plaintiff that a Hoy-man and Ferry-man are bound to answer and why not the Master of a Ship The Defendant proved that there was no carelesness nor negligent default in him Maynard He is not chargeable if there be no negligence in him because he is but a Servant the owner takes the Freight Hales He is Exercitor navis If we should let loose the Master the Merchant would not be secure And if we should be too quick upon him it might discourage all Masters so that the consequence of this case is great But the Iury gave a Verdict for the Defendant the Court for the reasons aforesaid inclining that way Porter Fry EJectione firmae A special Verdict The case was A man deviseth to A. for life the Remainder to one and the Heirs of his body upon condition That if he marry without consent of such and such or dye without Heirs of the body of his Mother that then the Estate shall go to another and his Heirs He marries without their consent and he in the Remainder
take notice that he is a Bankrupt any Execution may be stopped at that rate by alledging that there is a Commission of Bankrupts out against the Plaintiff If he be a Bankrupt you must take out a special Scire facias and try the matter whether he be a Bankrupt or not Which Jones said they would do and the Court granted Twisden If a Mariner or Ship-Carpenter run away he loses his wages due which Hales granted Henry L. Peterborough vers John L. Mordant A Trial at Bar upon an Issue out of the Chancery whether Henry Lord Peterborough had only an Estate for Life or was seized in Fee-tail The Lord Peterborough's Counsel alledged that there was a settlement made by his Father 9 Car. 1. whereby he had an Estate in Tail which he never understood till within these three years but he had claimed hitherto under a Settlement made 16 Car. 1. And to prove a Settlement made 9 Car. 1. he produced a Witness who said that he being to purchase an Estate from my Lord the Father one Mr. Nicholls who was then of Counsel to my Lord gave him a Copy of such a Deed to shew what title my Lord had But being asked whether he did see the very Deed and compare it with that Copy he answered in the negative whereupon the Court would not allow his Testimony to be a sufficient Evidence of the Deed and so the Verdict was for my Lord Mordant Cole Forth A Trial at Bar directed out of Chancery upon this Issue whether Wast or no Wast Hales By protestation I try this cause remembring the Statute of 4 Henr. 4. And the Statute was read whereby it is Enacted That no Iudgment given in any of the Kings Courts should be called in question till it were reverst by Writ of Error or Attaint He said this cause had been tried in London and in a Writ of Error in Parliament the Iudgment affirmed Now they go into the Chancery and we must try the cause over again and the same point A Lease was made by Hilliard to Green in the year 1651. afterwards he deviseth the Reversion to Cole and Forth gets an under-Lease from Green of the premisses being a Brew-house Forth pulls it down and builds the ground into Tenements Hales The question is whether this be Wast or no and if it be Wast at Law it is so in Equity To pull down a House is Wast but if the Tenant build it up again before an Action brought he may plead that specially Twisden I think the Books are pro and con whether the building of a new House be Wast or not Hales If you pull down a Malt-mill and build a Corn-mill that is Wast Then the Counsel urged that it could not be repaired without pulling it down Twisden That should have been pleaded specially Hales I hope the Chancery will not Repeal an Act of Parliament Wast in the House is Wast in the Curtelage and Wast in the Hall is Wast in the whole House So the Iury gave a Verdict for the Plaintiff and gave him 120 l. damages Term. Mich. 25 Car. II. 1673. in B. R. AN Action of Debt was brought upon a Bond in an inferiour Court the Defendant cognovit actionem petit quod inquiratur per patriam de debito This pleading came in question in the Kings Bench upon a Writ of Error but was maintain'd by the Custom of the place where c. Hales said it was a good Custom for perhaps the Defendant has paid all the Debt but 10 l. and this course prevents a Suit in Chancery And it were well if it were established by Act of Parliament at the Common Law Wild. That Custom is at Bristow Randall versus Jenkins 24 Car. 2. Rot. 311. REplevin The Defendant made Conusance as Bayliff to William Jenkins for a Rent-charge granted out of Gavel-kind Lands to a man and his Heirs The question was whether this Rent should go to the Heir at Common Law or should be partible amongst all the Sons Hardres It shall go to the eldest Son as Heir at Law for I conceive it is by reason of a Custom time out of mind used that Lands in Kent are partible amongst the Males Lamb. Perambulat of Kent 543. Now this being a thing newly created it wants length of time to make it descendible by Custom 9 H. 7. 24. A feoffment in Fee is made of Gavel-kind Lands upon Condition the Condition shall go to the Heirs at Common Law and not according to the descent of the Land Co. Litt. 376. If a warranty be annex'd to such Lands it shall descend only upon the eldest Son Now this Rent-charge being a thing contrary to common right and de novo created is not apportionable Litt. Sect. 222. 224. it is not a part of the Land for if a man levy a Fine of the Land it will not extinguish his Rent unless by agreément betwixt the parties 4 Edw. 3. 32. Bro. tit Customs 58. if there be a Custom in a particular place concerning Dower it will not extend to a Rent-charge Fitz. Dower 58. Co. Litt. 12. Fitz. Avowry 207. 5 Edw. 4. 7. there is no occasion in this case to make the Rent descendible to all for the Land remains partible amongst the Males according to the Custom And why a Rent should go so to the prejudice of the Heir I know not 14 H. 88. it is said that a Rent is a different and distinct thing from the Land Then the language of the Law speaks for general Heirs who shall not be disinherited by construction The grand Objection is whether the Rent shall not follow the nature of the Land 27 H. 8. 4. Fitzherb said he knew four Authorities that it should Fitz. Avowry 150. As for his first case I say that Rent amongst Parceners is of another nature than this for that is distreynable of Common right As for the second I say the rule of it holds only in cases of Proceedings and Trials which is not applicable to his Custom His third case is that if two Coparceners make a feoffment rendring Rent and one dies the Rent shall not survive To this I find no answer given Litt. Sect. 585. is further objected where it is said that if Land be deviseable by Custom a Rent out of such Lands may be devised by the same Custom but Authorities clash in this point He cited farther these books viz. Lamb. Peramb of Kent and 14 H. 8. 7 8. 21 H. 6. 11. Noy Randall Roberts case 51. Den. cont I conceive this Rent shall descend to all the Brothers for it is of the quality of the Land and part of the Land it is contained in the bowels of the Land and is of the same nature with it 22 Ass 78. which I take to be a direct Authority as well as an instance Co. Lit. 132. ibid 111. In some Boroughs a man might have devised his Land by Custom and in those places he might have devised a Rent
in the continuance of that Estate that is not subject to the Rent but is above all those charges now no recompence can come to such a Rent And therefore there is another reason why a Common Recovery will bar at Common Law upon an Estate Tail which was a Fée-simple conditional a Remainder could not be limited over because but a possibility but now comes that Statute De donis conditionalibus and makes it an estate tail and a Common recovery is an inherent priviledge in the Estate that was never taken away by that Statute De donis the Law takes it as a conveiance excepted out of the Statute as if he were absolutely seised in fee and this is by construction of Law It is true there can be no recompence to him that hath but a possibilitie But the business of recompence is not material as to this charge And the reason of Whites case and other cases put explain this Now what difference between this and Capels case Say they there the charge doth arise subsequent but here the charge doth arise precedent why I say the charge doth arise precedent to the Remainder but subsequent to the Estate tail for it is not to take effect till the Estate tail be determined It was doubted in the Queens time whether a Remainder for years was barred but it hath béen otherwise practised ever since and there is no colour against it Now you do agrée that the Remainder to the right Heirs of one living shall be barred for the Estate is certain though the Person be uncertain So long as the Rent doth not come within the compass and limitation of the Estate tail the Rent is extinct and killed there is nothing to keep life in it But whether doth not the Lease for years preserve it Heretofore it was a question among young men Whether if Tenant in Tail granted a Rent Charge for Life then makes a Lease for three Lives In this case though the Rent before would have dyed with Tenant in Tail yet this Rent will continue now during the three Lives which it will And it hath been questioned if he had made a Lease for years instead of the Lease for lives if that would have supported the Rent Now in our case if the Lease for years were chargeable the Rent would arise out of that But if this Rent should continue then most mens Estates in England would be shaken Wild. The Lease for years doth not preserve the Rent but the Common Recovery doth bar it For Pell Brownes case in that Case the Recovery could not barr the possibility for he was not Tenant in Tail that did suffer the Recovery but he had only a Fee simple determinable and the contingent Remainder not depend upon an Estate Tail nay did not depend by way of Remainder but by way of Contingency It is true Iustice Dodridge did hold otherwise but the rest of Iudges gave Iudgment against him upon very good reason Twisden I never heard that case cited but it was grumbled at Hales But to your knowledge and mine they always gave Iudgment accordingly A man made a gift in Tail determinable upon his non-payment of 1000 l. the Remainder over in Tail to B. with other Remainders Tenant in Tail before the day of payment of the 1000 l. suffers a common Recovery and doth not pay the 1000 l. yet because he was Tenant in Tail when he suffered the Recovery by that he had barred all and had an Estate in Fee by that Recovery At a day after Hales said the Rent was granted before the Lease for years and is not to take effect till the Estate Tail be spent and a common Recovery bars it If there be Tenant in Tail reserving Rent a common Recovery will not bar it so if a Condition be for payment of Rent it will not bar it But if a Condition be for doing a collateeal thing it is a bar And so if Tenant in Tail be with a Limitation so long as such a Tree shall stand a common Recovery will bar that Limitation Lampiere versus Mereday AN Audita Querela was brought before Iudgment entred which they could not do 9 H. 5. 1. which the Court agreed Whereupon Counsel said it was impossible for them to bring an Audita Querela before they were taken in Execution for the Plaintiff will get Iudgment signed and take out Execution on a suddain and behind the Defendants back Thereupon the Court ordered the Postea to be brought in for the Defendant to see if Execution were signed And at a day after Hales said If an Audita Querela was brought after the day in bank though the Iudgment was not entred up yet the Court would make them enter up the Iudgment as of that day So that they shall not plead Nul tiel Record Wyld said a Sheriffs bond for ease and favour was void at Common Law and so it was declared in Sir John Lenthalls case Twisden upon opening of a Record by Mr. Den said It was already adjudged in this Court that a Rent issuing out of Gavelkind Land is of the nature of the Land and shall descend as the Land doth An Action of Debt upon a Bond. Sympson moved in Arrest of Iudgment The Bond was dated in March and the Condition was for payment super vicessimum octavum diem Martii prox ' sequentem It was sequentem which refers to the day which shall be understood of the month next year If it had been sequentis then it had referred to March and then it had beén payable the next year But the Court was of Opinion that it should be understood the currant month Sympson cited a case wherein he said it had been so held Read versus Abington Hales Formerly if Execution was gone before a Writ of Error delivered or shewed to the party it was not to be a Supersedeas Wyld He must not keep the Writ in his pocket and think that will serve At another day Hales said it shall not be a Supersedeas unless shewed to the party and he must not foreslow his time of having it allowed for if it be not allowed by the Court within four days it is no Supersedeas Hales A Writ of Error taken out if it be not shewn to the Clerk of the other side nor allowed by the Court it is no Supersedeas to the Execution And that if a Writ of Error be sued bearing Teste before the Iudgment be given if the Iudgment be given before the Retorn it is good to remove it though at first he said it was so in respect of a Certiorari but not of a Writ of Error And he said that Iudgment when ever it is entred hath relation to the day in bank viz. the first day of the Term So that a Writ of Error retornable after will remove the Record when ever the Iudgment is entred Vpon a motion concerning the amending of Leather-Lane Hales If you plead Not-guilty it goes to the Repair or
pleaded A special Verdict that the Lands are Copyhold Lands and surrendred to the use of one for eleven years the Remainder for five years to the Daughter the Remainder to the right heirs of the Tenant for eleven years The eleven years expire the Daughter is admitted the five years expire And there being a Son and Daughter by one Venter and a Son by another Venter the Son of the first Venter dies before admittance and the Daughter of the first Venter and her Husband bring Trover for cutting down of Trees And the question was if the admittance of Tenant for years was the admittance of the Son in Remainder Levings I conceive it is and then the Son is seized and the Daughter of the whole blood is his heir and he cited 4 Rep. 23. 3 Cro. 503. Bunny's case Wyld The Estate is bound by the Surrender Hales If a man doth surrender to the use of John Styles till admitted there is no Estate in him but remains in the Surrenderor but he hath a right to have an admittance If a surrender be to J. S. and his heirs his heir is in without admittance if J. S. dies About this hath indeed been diversity of Opinion but the better Opinion hath been according to the Lord Coke's Opinion I do not see any inconvenience why the admission of Tenant for life or years should not be the admittance of all in Remainder for Fines are to be paid notwithstanding by the particular Remainders and so the Books say it shall be no prejudice to the Lord. Twisd I think it is strong that the admission of Lessee for years is the admission of him in Remainder for as in a case of possessio fratris the Estate is bound so that the Sister shall be heir so here the Estate is bound and goes to him in Remainder Hales I shall not prejudice the Lord for if a Fine be assessed for the whole Estate there is an end of the business but if a Fine be assessed only for a particular Estate the Lord ought to have another If a surrender be to the use of A. for life the Remainder to his eldest Son c. or to the use of A. and his heirs and then A. dies the Estate is in the Son without admittance whether he takes by purchase or descent And Iudgment was given accordingly Draper versus Bridwell Rot. 320. ALL the Court held that an Action of Debt would lye upon a Iudgment after a Writ of Error brought Twisden They in the Spiritual Court will give Sentence for Tythes for rakings though they be never so unvoluntarily left which our Law will not allow of Wyld said that Actions personal transitory though the party doth live in Chester yet they may be brought in the Kings Courts Hales Shew a President where a man can wage his Law in an Action brought upon a Prescription for a duty as in an Action of Debt for Toll by Prescription you cannot wage your Law Pybus versus Mitford Postea THe Chief Iustice delivered his Opinion Wyld Rainsford and Twisden having first delivered theirs Hales I think Iudgment ought to be given for the Defendant whether the Son take by descent or purchase I shall divide the case 1 Whether the Son doth take by descent 2 Admitting he doth not whether he can take by purchase We must make a great difference betweén Conveyances of Estates by way of use and at Common Law A man cannot convey to himself an Estate by a Conveyance at Common Law but by way of Vse he may But now in our case here doth doth retorn by operation of Law an Estate to Michael for his life which is conjoyned with the Limitation to his heirs The reason is because a Limitation to the heirs of his body is in effect to himself this is perfectly according to the intention of the parties Objection The use being never out of Michael he hath the old use and so it must be a Contingent use to the heirs of his body But I say we are not here to raise a new Estate in the Covenantor but to qualifie the Estate in Fee in himself for the old Estate is to be made an Estate for life to serve the Limitation Further Objection It shall be the old Estate in Fee as if a man deviseth his Lands to his heirs the heir is in of the old Estate But I answer if he qualifie the Estate the Son must take it so as in Hutton fo So in this case is a new qualification Roll 789. 15 Jac. If a man makes a Feoffment to the use of the heirs of the body of the Feoffor the Feoffor hath an Estate Tail in him Pannel versus Fenne Moor 349. Englefield and Englefield 2 I conceive if it were not possible to take by descent this would be a Contingent use to the heirs of the body Objection It is limited to the heir when no heir in being Why I say it would have come to the heir at Common Law if no express Limitation had been and it cannot be intended that he did mean an heir at Common Law because he did specially limit it Fitz. tit Entayle 23. An Assise for the Serjeant at Mace's place in the House of Commons The Plaintiff had his Patent read The Court asked if they could prove Seisin They answered that they had recovered in an Action upon the case for the mean profits and had Execution Court For ought we know that will amount to a seisin Twisden Vpon your grant since you could not get seisin you should have gone into Chancery and they would have compelled him to give you seisin Hales A man may bring an Action upon the case for the profits of an Office though he never had seisin So the Record was read of his Recovery in an Action upon the case for the profits Hales This is but a seisin in Law not a seisin in Fact The Counsel for the Plaintiff much urged that the Recovery and Execution had of the profits was a sufficient seisin to entitle them to an Assise It was objected that the Plaintiff was never invested into the Office Hales said That an investiture did not make an Officer when he is created by Patent as this is but he is an Officer presently But if he were created an Herald at Arms as in Segars case he must be invested before he can be an Officer a person is an Officer before he is sworn Hales You are the Pernor of the profits and they have recovered them is not this a Seisin against you They shall find it specially but they chose rather to be Non-suit because of the delay by a special Verdict And the Court told them they could not withdraw a Iuror in an Assise for then the Assise would be depending The Roll of the Action sur le case fuit 19 Car. 2. Mich. Rot. 557. Term. Trin. 15 Car. II. 1663. Judge Hide 's Argument in the Exchequer-Chamber Manby versus Scott A Feme Covert departs
she ought not to starve If a woman be of so haughty a stomack that she will chuse to starve rather then submit and be reconciled to her husband let her take her own choise The Law is in no default which doth not provide for such a wife If a man be taken in execution and lye in Prison for Debt neither the Plaintiff at whose suit he is arrested nor the Sheriff who took him is bound to find him Meat Drink or Cloathes but he must live on his own or on the Charity of others and if no man will relieve him let him dye in the name of God says the Law Plow 68. Dive Manningham so say I if a woman who can have no Goods of her own to live on will depart from her husband against his will and will not submit her self unto him let her live on Charity or starve in the name of God for in such case the Law says her evil demeanour brought it upon her and her death ought to be imputed to her own wilfulness As to my Brother Tyrrells Objection it were strange if our Law which gives relief in all cases should send a woman unto another Law or Court to seek remedy to have maintenance I answer It s not sending the wife to another Law but leaving the case to its proper Iurisdiction the case being of Ecclesiastical Conusance Is it any strangeness or disparagement to the Common-Pleas to send a Cut-purse or other Felon taken in the Court to the Kings-Bench to be Indicted or to the Kings-Bench to send a woman to the Common-Pleas to recover her Dower Why is it more strange for the Common Law to send a Woman to the Ordinary to determine differences betwixt her and her husband touching matters of Matrimony then for our Courts at Common Law to write unto the Ordinary to certifie Loyalty of Marriage Bastardy or the like where Issue is joined on these points in the Kings Courts for although the proceeding and process in the Ecclesiastical Courts be in the names of the Bishops yet these Courts are the Kings Courts and the Law by which they proceed is the Kings Law 5 Rep. 39. Caudries case but the reason in both cases is quia hujusmodi causae cognitio ad forum spectat Ecclesiasticum 30 H. 6. b. Old book of Entries 288. according to that of Bracton lib. 3. fo 107. Stamf. 57. Sunt casus spirituales in quibus Judex secularis non habet cognitionem neque Executionem quia non habet coercionem In his enim casibus spectat cognitio ad Judices Ecclesiasticos qui regunt defendunt sacerdotium Hereunto agrees Cawdries case 5 Rep. 9. As in temporal causes the King by the mouth of his Iudges in his Courts of Iustice determines them by the temporal Law so in causes Ecclesiastical and Spiritual the Conusance whereof belongs not to the Common Law they are decided and determined by the Ecclesiastical Iudges according to the Kings Ecclesiastical Laws And that causes of Matrimony and the differences between husband and wife touching Alimony or maintenance for the wife which are dependant upon or incident unto Matrimony are all of Ecclesiastical and not of secular Conuzance is evident by the Books and Authorities of our Laws de causa Testamentari sicut nec de causa Matrimoniali Curia Regia se non intromittat sed in foro Ecclesiastico debet placitum terminari Bracton lib. 2. cap. 20. fo 7. All causes Testamentary and causes of Matrimony by the Laws and Customs of the Realm do belong to the spiritual Iurisdiction 24 H. 8. cap. 2. The words of the Writ of Prohibition granted in such cases are placita de Catallis debitis quae sunt de Testamento vel Matrimonio spectant ad forum Ecclesiasticum In a suit commenced by a woman against he husband before the Commissioners for Ecclesiastical causes for Alimony a Prohibition was prayed and granted because it is a suit properly to be brought and prosecuted before the Ordinary In which if the party find himself grieved he may have relief by Appeal unto the superiour Court and that he cannot have upon a sentence given in the high Commission Court 1 Cro. 220. Drakes case But 't is objected by my Brother Tyrrell and Twisden that the remedy in the Ecclesiastical Court is not sufficient for if the husband will not obey the Sentence of the Ordinary it is but Excommunication for his Contumacy and will neither feed nor cloath the wife Are the Censures of the holy Mother the Church grown of so little Accompt with us or the separation a communione fidelium become so contemptible as to be slighted with but Excommunication hath our Law provided any remedy so penal or can it give any Iudgment so fearful as this With us the rule is committitur Marescal ' or Prison ' de Fleet. There the Sentence is traditur Satanae which Iudgment is more penal Take him Gaoler till he pay the Debt or take him Devil till he obey the Church And yet their Iudgment is warranted by the rule of St. Paul whom I have delivered unto Satan 1 Cor. 5. 5. whereupon the Coment says Anathema ab ipso Christi corpore quod est Ecclesia recidit Causa 3 quest 4 Cam ' Egell trudam and also Nullus cum Excommunicatis in oratione aut cibo aut potis autesculo communicet nec ave eis dicat Causa 2 quest 3 Can. Excommunicat ' Bracton lib. 5. cap. 23. fo 42. As much is said by our Law and it is to the same effect Excommunicat ' interdicitur omnis actus legitimus Ita quod agere non potest nec aliquem convenire cum ipso nec orare nec loqui nec palam nec abscondite vesci licet The second ground of the Law of Excommunication is the Law of England and it is a ground in the Law of England That he which is accursed shall not maintain any Action Doctor Stu. 11. Where a man is excommunicated by the Law of the Church if he sue any Action real or personal the Tenant or Defendant may plead that he is Excommunicated and demand Iudgment if he shall be answered Lit. 201. the Sentence is set forth at large in the old Statute Book of Magna Charta and is intituled Sententia lata super chartas namely Authoritate Dei patris omnipotentis filii spiritus Sancti Excom̄unicamus Anathematizam a liminibus Sanctae matris Ecclesiae sequestram ' omnes illos c. 12 H. 3. fo 146. He which by the Renunciation is rightfully cut off from the Vnity of the Church and Excommunicate ought to be taken by the whole multitude as a Heathen and a Publican until he be openly reconciled by Penance Act 33. confirm ' per 13 Eliz. cap. and this is grounded on the rule of our blessed Saviour dic ' Ecclesiae And if he neglect to hear the Church let him be as an Heathen and Publican Matt. 18. 17. Shall a
the Wife does but nominate what person shall take by the Will This is a plain case and free from uncertainty and ambiguity which else the word dispose will be liable to But Iudgment was given ut supra Howell versus King TRespass for driving Cattel over the Plaintiffs ground The case was A. has a way over B's ground to Black-Acre and drives his Beasts over A's ground to Black-acre and then to another place lying beyond Black-acre And whether this was lawful or no was the question upon a demurrer It was urged that when his Beasts were at Black-acre he might drive them whither he would Rolls 391. nu 40. 11 H. 4. 82. Brook tit chimin On the other side it was said that by this means the Defendant might purchase a hundred or a thousand Acres adjoyning to Black-acre to which he prescribes to have a way by which means the Plaintiff would lose the benefit of his Land and that a Prescription presupposed a grant and ought to be continued according to the intent of its original Creation The whole Court agreed to this And Iudgment was given for the Plaintiff Warren qui tam c. versus Sayre THe Court agreed in this case that an Information for not coming to Church may be brought upon the Stat. of 23 Eliz. only reciting the clause in it that has reference to Stat. 1. of the Queen and that this is the best and surest way of declaring Term. Hill 26 27 Car. II. in Com. Banco Williamson Hancock Hill 24 25 Car. 2. Rot. 679. TEnant for life the Remainder in Tail Tenant for life levies a Fine to J. S. and his heirs to the use of himself for years and after to the use of Hannah and Susan Prinne and their heirs if such a sum of money were unpaid by the Conusor and if the money were paid then to the use of the Conisor and his heirs And this Fine was with general warranty The Tenant for life died the money unpaid and the warranty descended upon the Remainder-man in Tail And the question was whether the Remainder-man were bound by this warranty or not Serjeant Maynard argued that because the Estate of the Land is transferred in the Post before the warranty attaches in the Remainder-man that therefore it should be no Bar. He agréed that a man that comes in by the limitation of an use shall be an Assignee within the Statute of 32 H. 8. cap. 34. by an equitable construction of the Statute because he comes in by the limitation of the party and not purely by Act in Law but this case of ours is upon a collateral garranty which is a positive Law and a thing so remote from solid reason and equity that it is not to be stretch'd beyond the maxime That the Cestuy que use in this case shall not vouch is confessed on all hands and there is the same reason why he should not rebutt He said the resolution mentioned in Lincoln Colledge case was not in the case nor could be the warranty there was a particular warranty contra tunc Abbatem Westmonasteriensem successores suos which Abby was dissolved long before that case came in question He said Justice Jones upon the arguing of Spirt Bence's case reported in Cr. Car. said that he had been present at the Iudgment in Lincoln Colledge case and that there was no such resolution as is there reported Serjeant Baldwin argued on the other side that at the Common Law many persons might rebutt that could not take advantage of a warranty by way of Voucher as the Lord by Escheat the Lord of a Villain a Stranger a Tenant in possession 35 Ass placito 9. 11 Ass placito 3. 45 Ed. 3. 18. placito 11. 42 Ed. 3. 19. b. a fortiori he said he that is in by the limitation of an use being in by the act of the party though the Law co-operate with it to perfect the assurance shall rebutt The Court was of Opinion that the Cestuy que use might rebutt that though Voucher lies in privity an abater or intruder might rebutt F. N. B. 135. 1 Inst 385. As to Serjeant Maynard's Objection that he is in the Post they said they had adjudged lately in Fowle Doble's case that a Cestuy que use might rebutt So it was held in Spirt Bence's case Cr. Car. and in Jones 199. Kendal Foxe's case That Report in Lincoln Colledge case whether there were any resolution in the case or no is founded upon so good reason that Conveyances since have gone according to it Atkyns said there was a difficult clause in the Statute of Uses viz. That all and singular person and persons c. which at any time on this side the first day of May c. 1536. c. shall have c. By this clause they that came in by the limitation of an use before that day were to have the like advantages by Voucher or Rebutter as if they had béen within the degrees If the Parliament thought it reasonable why was it limited to that time Certainly the makers of that Law intended to destroy Vses utterly and that there should not be for the future any Conveyances to Vses But they supposed that it would be some small time before all people would take notice of the Statute and make their Conveyances accordingly and that might be the reason of this clause But since contrary to their expectations Vses are continued he could easily be satisfied he said that Cestuy que use should rebutt Wyndham was of Opinion that Cestuy que use might vouch he said there was no Authority against it but only Opinions obiter They all agreed for the Defendant and Iudgment was given accordingly Rogers versus Davenant Parson of White-Chappel NOrth Chief Justice The Spiritual Court may compell Parishioners to repair their Parish-Church if it be out of Repair and may Excommunicate every one of them till it be repaired and those that are willing to contribute must be absolved till the greater part of them agrée to assess a Tax but the Court cannot assess them towards it it is like to a Bridge or a High-way a Distringas shall issue against the Inhabitants to make them Repair it but neither the Kings Court nor the Iustices of Peace can impose a Tax for it Wyndham Atkyns Ellis accorded The Church-Wardens cannot none but a Parliament can impose a Tax but the greater part of the Parish can make a By-Law and to this purpose they are a Corporation But if a Tax be illegally imposed as by a Commission from the Bishop to the Parson and some of the Parishioners to assess a Tax yet if it be assented to and confirmed by the major part of the Parishioners they in the Spiritual Court may proceed to Excommunicate those that refuse to pay it Compton Vx. versus Ireland Mich. 26 Car. 2. Rot. 691. SCire facias by the Plaintiffs as Executors to have Execution of a Iudgment
common right the words of reservation ought to be pursued but as to this the Court delivered no Opinion Ognell versus the Lord Arlington Guardian of Sir John Jacob. UPon a Trial at Bar the Court delivered for Law to the Iury that if there be Tenant by Elegit of certain Lands and a Fine be levied of those Lands and five years with non-claim pass that the interest of the Tenant by Elegit is bound according to Saffyn's case 5 Rep. otherwise if the Land had not been actually extended Also that if an Inquisition upon an Elegit be found the party before entry has the possession and a fine with non-claim shall bar his right for before actual entry he may have Ejectione firmae or Trespass and so not like to an interesse termini Barry Trebeswycke IF a Parson have a Pension by Prescription he may either bring an Action at the Common Law or commence a Suit in the Spiritual Court but if he brings a Writ of Annuity at the Common Law he can never after sue in the Spiritual Court for that his Election is determined Wakeman Blackwell IN a Quare impedit the Defendant pleaded a recovery in this manner viz. that John Wakeman Grandfather to the Plaintiff was seized in fee of the Mannor to which c. and that a Praecipe was brought against one Prinne Philpotts adtunc tenentes liberi tenementi c. who appeared and vouched John Wakeman c. and that this Recovery was to the use of J. S. under whom the Defendant claims Strode pro Defendente it is not necessary that the Tenant in a Common Recovery have a Freehold at the time of the purchase of the Writ if he have at the time of the return it sufficeth 7 Ed. 3. 42. 7 Ed. 3. 70. Ass of no. diss 43 Ed. 3. 21. in these Authorities the person against whom the Praecipe is brought comes in by right after the purchase and before the return of the Writ But in 26 Ed. 3. 68. there is an example where the Tenant to the Praecipe comes in by tort but there is this difference if he comes to the Land by his own act be it by right or by wrong there he makes the Writ good otherwise if he come to it by act of Law 8 Ed. 3. 22. a. Formedon 25 H. 6. 4. the reason why you shall not abate the Plaintiffs Writ by your own act is because you cannot give him a better The demandant here is estopped to say that there was not a Tenant to the Praecipe in this Recovery for the Writ is but abatable if brought against one that is not Tenant and as long as it stands not abated but is pleaded to c. it shall conclude all that are parties and privies and all claiming under them 34 Ed. 3. F. tit droit 39. here is in our case an estoppell with a recompence Wakeman the Grandfather who was the first Vouchee in this Recovery might have counterpleaded the lien and extorted the warranty but having vouched over he is past that advantage and is concluded being made a party by Voucher This being a common Recovery the Court will do all they can to make it good A Fine is levied by Dedimus potestatem by Baron and Feme The Commissioners did not return the examination of the wife and yet that is the discriminating difference upon which depends whether the wife shall be bound by the Fine or not 15 Ed. 4. 28. a. Litt. Sect. 670. 6 Ed. 3. 22. a. The Court must needs in this case intend that Prinne Philpots came in by conveyance because Wakeman came in upon the Voucher which he would not have done if there had not been a lien He cited Cro. Jac. 454. Lincoln Colledge case 3 Rep. 48. Hob. 262. Duncomb Wingfield's case To which Pemberton answered that tunc tenens is a sufficient averment in the pleading of a Recovery which is favoured in Law but it is not good alone when in the same sentence a matter is set forth that is inconsistent with it and plainly contradictory as in this case and of that opinion was the Court. The case in Hob. they said was upon a special Verdict where many things may be intended which shall not be so in pleading and in Lincoln Col ' case the Writ is said to be brought against one Edw. Chamberlain in one part of the Record and the Mother is said to be Tenant in another part of the Record and by the other party but here in the same sentence unto flatu there is a flat contradiction Burrow Haggett FOrmedon in the descender The Defendant pleaded in abatement of the Count and took these exceptions 1. That the demandant declares that the right descended to him after the death of Leonard as Brother and heir to Leon and Son and Heir of the Donee but does not alledge that Leonard died without issue 8 Rep. 88. Buckmere's case In ancient Registers the clause is eo quod the issue dyed without issue Co. Ent. 254. b. c. Rast Entr. 365. C. Yelv. 227. Glasse Gyll's case 9 Ed. 4. 36. a man that entitles himself as heir must shew how he is heir Seyse contra The presisidents are on our side and the difference is betwixt a Formedon in the descender and a Formedon in the remainder or reverter In the former they do not mention the dying without issue of him after whose death they claim for the Count there is in effect only to set out their pedigreé but in a Formedon in the Remainder or Reverter it is otherwise 39 Ed. 3. 27. Old Book of Ent ' 339. tit Formed ' bar plac ' 3. Co. Lit. Mandevile's case 26 b 7 H. 7. fol. 7. b. there our case is put in express terms the exception taken to the Count there by Keble is the same that is taken to ours here and there it is over-ruled North I have looked into presidents and find the Count in this case according to them It is a plain and reasonable difference betwixt a Formedon in the discender and a Formedon in the remainder or reverter nor could the demandant be brother and heir to Leonard if Leonard had left children c. Another exception was that the demandant does not set forth that he was Son and heir of John begotten on the body of Jane his wife for it was a gift in special tail But this was over-ruled for in the Writ that is set forth and in the Declaration after the words filio haeredi praedict Johannis came an c. which c. let the words of the Writ into the Count and so it was held good The Prothonotaries said that the forms of Counts were accordingly And Iudgment was given to answer over Nisi causa c. Term. Mich. 28 Car. II. in Communi Banco Blythe versus Hill DEbt upon an Obligation for the payment of money at a day certain The Defendant pleaded that the Plaintiff being
have the security given by the Defendant for his appearance it is all one to him whether it be good or no. Strode contra Why must the Sheriff always aver that he has taken sufficient Sureties if their sufficiency be not material Why is an Action allowed to lie if the Sheriff take no Sureties at all since according to my Brothers Opinion the party has no interest in them If the Law be as they argue the Statute has left the Plaintiff in a worse condition then he was at the Common Law for it has deprived him of the remedy that he had before and the Amercements belong not to him but to the King Cur ' The sufficiency of the bail is not material it is only for the Sheriffs own security If he take no bail at all an Action lies against him for then he does not act by colour of this Law Atkyns The Statute is not advantagious to the Plaintiff at all unless the Sheriff let go the prisoner without taking any bail and then he must render treble damages And by the Opinion of the whole Court Iudgment was given for the Defendant Moor versus Field A Custom was alledged that all persons in a Parish that had Shéep upon their ground on Candlemas-day should be discharged of Tythes of all Sheep that should be upon their ground after in that year upon payment of full Tythes for all the Sheep that were there upon that day and this was adjudged an unreasonable Custom Serjeant Turner argued for it and cited Rolls Abr ' 2 part 647 648. Term. Hill 28 29 Car. II. Communi Banco Strode versus l'Evesque de Bath Wells and Sir George Horner and Masters QUare Impedit the Plaintiff entitles himself by vertue of a Grant of the next Avoidance made by Sir George Horner and counts that Sir George was seized in fee of the Mannor of Dowling to which the advowson was appendant and presented J. S. who was admitted instituted c. and that then he granted the next Avoidance to the Plaintiff and that J. S. died and it belongs to him to present Serjeant Barton The Plaintiff has failed in his Count he says That Sir George was seized and presented but he does not say That he presented tempore pacis F. N. B. 33. Hob. 102. 6 Co. 30. 1 Inst 249. F. N. B. 31. 5 Co. 72. Vaug. 53. Strode When the Plaintiff makes his Title by a Presentation he ought to say That it was tempore pacis but Sir Georges Title is by reason of his being seized of the Mannor of Dowling to which the Advowson is appendant So that the difference as to that will be betwixt an Advowson in gross and an Advowson appendant Cur. When a man shews a precedent Right and then alledges a Presentation in pursuance of that Right as in this case the Plaintiff does in Sir George Horner there it needs not be alledged to have been tempore pacis but where no Title is alledged so that the Presentation only makes the Title there it must be pleaded tempore pacis Davies Cutt. DAvies as Administrator to Eliz. B. a feme Covert brings an Action of Debt upon a Bond against Cutt. The Defendant pleads That Administration of the Wives goods ought de jure to be committed to the Husband who was then alive upon this there was a Demurrer and it was resolved for the Plaintiff for he is rightful Administrator till his Letters of Administration are repealed James Johnson TRespass For taking and driving away some Beasts of the Plaintiff the Defendant justifies for that he and all they whose Estate he has in such a Mannor the Mannor of Blythe have had a Toll for all Beasts driven over the said Mannor viz. ½ d. a Beast if under twenty and if above then 4 d. a score Issue being joyned upon this justification a special Verdict was found viz. That the Mannor aforesaid was parcel of the Possessions of the Priory of Blythe that the Prior had by Prescription such a Toll as appurtenant to the said Mannor that by the dissolution it came to the Crown and so to Sir Gervase Clifton and at last to one Bingley in whose Right as Servant to him the Defendant justifies but then they conclude that if the Defendant may entitle himself to it by a que estate they find for the Defendant if not then for the Plaintiff Serjeant Baldw. For the Plaintiff it does not appear whether the Toll which the Defendant claims be a Toll-thorough or a Toll-traverse or what sort of Toll it is A Toll-thorough is against common Right because it is to be taken in the Kings High-way And no Prescription can be for it unless he that claims it shew that the Subject has some advantage by it And when a man claims a Toll-traverse he must lay it to be for a way over his own Freehold Keil 148. Statham Toll 2. Pl. 236. Moor 574. Cr. Eliz. 710. Keil 152. A Toll supposeth a Grant from the Crown and therefore when the Mannor of Blythe came to the Crown the Toll was disjoyned from the Mannor and became in gross Nor can a Toll be appendant to a Mannor nor claimed by a que estate Serjeant Maynard The Iury have found exactly whatever the Defendant has disclosed in his Plea and have made a special conclusion upon a Point of pleading Toll may be appurtenant to a Mannor as well as any other profit a prendre Nor does it become in gross by the Mannor coming to the Crown The difference is as to that betwixt things that had a being in the Crown before they were granted out to Subjects and things which had not 9. Rep. The Case of the Abbot of Strata Marcella There is no such legal difference between a Toll-thorough and a Toll-traverse as has been offered the words are used promiscuously in our Books A Toll-thorough may be by Prescription without any reasonable cause alledged of its commencement for having been paid time out of mind the true cause of its beginning in the intendment of the Law cannot be known And for the que estate indeed a thing that lies in grant cannot be claimed by a que estate directly by it self but it may be claimed as appurtenant to a Mannor by a que estate in the Mannor c. Cur. accord and gave Iudgment for the Defendant Atkyns When Toll is claimed generally it shall be intended Toll-thorough and so is the case in Cr. Eliz. 710. Smith Shepheard Lord Townsend versus Hughes AN Action upon the Stat. de Scandalis Magnatum for these words viz. My Lord Townsend is an unworthy Person and does things against Law and Reason Vpon issue Not Guilty there was a Verdict for the Plaintiff and four thousand pounds damages given The Defendant moved for a new Trial because of the excessiveness of the damages and a President was cited a of new Trial granted upon that ground and no other And Atkins was for granting a new Trial. North
Windham and Scroggs contr for that the Iury are the sole Iudges of the damages At another day it was moved in arrest of Iudgment That the words are not actionable And of that Opinion was Atkyns But North Windham Scroggs contr And so the Plaintiff had Iudgment Atkyns The occasion of the making of the Stat. of 5 Rich. 2. appears in Sir Robert Cotton's Abr. of the Records of the Tower fol. 173. num 9. 10. he says there That upon the opening of that Parliament the Bishop of St. Davids in a Speech to both Houses declared the Causes of its being summoned and that amongst the rest one of them was to have some restraint laid upon Slanderers and Sowers of Discord which sort of men were then taken notice of to be very frequent Ex malis moribus bonae Leges The Preamble of the Act mentions false News and horrible Lyes c. of things which by the said Prelates c. were never said done nor thought So that it seems designed against telling stories by way of News concerning them The Stat. does not make or declare any new Offence Nor does it inflict any new Punishment All that seems to be new is this 1. The Offence receives an aggravation because it is now an Offence against a positive Law and consequently deserves a greater Punishment as it is held in our Books That if the King prohibit by his Proclamation a thing prohibited by Law that the Offence receives an aggravation by being against the King's Proclamation 2. Though there be no express Action given to the party grieved yet by operation of Law the Action accrews For when ever a Statute prohibits any thing he that finds himself grieved may have an Action upon the Statute 10 Rep. 75. 12 Rep. 100. there this very Case upon this Statute was agreed on by the Iudges So that that is the second new thing viz. a further remedy An Action upon the Stat. 3. Since the Stat. the party may have an Action in the tam quam Which he could not have before Now every lye or falsity is not within the Stat. It must be horrible as well as false We find upon another occasion such a like distinction It was held in the 12 Rep. 83. That the High-Commission Court could not punish Adultery because they had Iurisdiction to punish enormous Offendors only So that great and horrible are words of distinction Again it extends not to small matters because of the ill consequences mentioned Debates and Discord betwixt the said Lords c. great peril to the Realm and quick subversion and destruction of the same Every word imports an aggravation The Stat. does not extend to words that do not agree with this Description and that cannot by any reasonable probability have such dire effects The Cases upon this Statute are but few and late in respect of the antiquity of the Act. It was made Anno 1379. for a long time after we hear no tydings of an Action grounded upon it And by reading it one would imagine that the makers of it never intended that any should be But the Action arises by operation of Law not from the words of the Act nor their intention that made it The first Case that we find of an Action brought upon it is in 13 H. 7. which is 120 years after the Law was made so that we have no contemporanea expositio which we often affect That Case is in Keil 26. the next in 4 H. 8. where the Duke of Buckingham recovered 40 l. against one Lucas for saying that the Duke had no more conscience than a Dog and so he got money he cared not how he came by it He cited other Cases and said he observed That where the words were general the Iudges did not ordinarily admit them to be actionable otherwise when they charged a Peer with any particular miscarriage Serjeant Maynard observed well That the Nobility and great men are equally coucerned on the Defendants part for Actions upon this Statute lie against them as well as against the meanest Subject Acts of Parliament have been tender of racking the King's Subjects for words And the Scripture discountenances mens being made Transgressors for a word I observe that there is not one case to be met with in which upon a motion in arrest of Iudgment in such an Action as this the Defendant has prevailed The Court hath sometimes been divided the matter compounded the Action has abated by death c. but a positive Rule that Iudgment should be arrested we find not So that it is time to make a President and fix some Rules according to which men may demean themselves in converse with great persons Misera est servitus ubi jus est vagum Since we have obtained no Rules from our Predecessors in Actions upon this Statute we had best go by the same Rules that they did in other Actions for words In them when they grew frequent some bonnds and limits were set by which they endeavoured to make these Law certain The Actions now encrease The stream seems to be running that way I think it is our part to obviate the mischief So he was of Opinion That the Iudgment ought to be arrested but the Court gave Iudgment for the Plaintiff North. There are three sorts of Hab. Corp. in this Court 1. Hab. Corp. ad respondendum and that is when a man hath a cause of suit against one that is in prison he may bring him up hither by Hab. Corp. and charge him with a Declaration at his own suit 2. There is a Hab. Corp. ad faciendum recipiendum and that Defendants may have that are sued in Courts below to remove their Causes before us Both these Hab. Corp. are with relation to the suits properly belonging to the Court of Common Pleas. So if an inferiour Court will proceed against the Law in a thing of which we have Conisance and commit a man we may discharge him upon a Hab. Corp. this is still with relation to Common Pleas. A third sort of Hab. Corp. is for priviledged Persons But a Hab. Corp. ad subjiciendum is not warranted by any Presidents that I have seen Term. Pasch 29 Car. II. in Communi Banco Hall Booth NOrth In Actions of Debt c. the first Process is a Summons if the Defendant appears not upon that a Cap. goes and then we hold him to Bail The reason of Bail is upon a supposition of Law that the Defendant flies the Iudgment of the Law And this supposition is grounded upon his not appearing at the first For if he appear upon the Summons no Bail is required And this is the reason why it is held against the Law for any inferiour Court to issue out a Capias for the first Process For the liberty of a man is highly valued in the Law and no man ought to be abridged of it without some default in him A Church is in decay the Bishops Court must
proceed against the whole Parish to have it repair'd they cannot Rate any particular person towards the repair of it But the Church-wardens must summon the Parish and that needs not be from house to house but a general publick Summons at the Church is sufficient and the major part of them that appear may bind the Parish If the Church and Chancel be out of repair the Parishioners are only chargeable to be contributory towards the Repairs of the Navis Ecclesiae If a Libel be against the Parish for not repairing the Church though the word Ecclesia may include the Chancel yet we will not grant a Prohibition If a Tax be set by the major part of the Parish pro reparatione Ecclesiae it is well enough and afterward any part of the money raised be laid out upon the Chancel the Parish ought not to allow it upon the Church-wardens accounts But if a Tax be imposed expresly for the repair of the body of the Church and of the Chancel we will not suffer them to proceed Or if a Libel be against a Parish for not repairing the Navis Ecclesiae and the Chancel we will prohibit them If a Church be down and the Parish encreased so that of necessity they must have a larger Church the major part of the Parish may raise a Tax for the enlarging it as well as the repairing it per Cur. It was insisted on at the Bar that to a Tax for the encreasing of a Church the consent of every Parishioner must be had But the Court was of another Opinion Southcote Stowell super Mich. 28 Car. 2. BAldw for the Plaintiff Thomas the Covenantor may be said to take an Estate for life by implication and then it will be all one as if an express Estate for life had been limited to him with a remainder to his Heirs males which would be a fée-tail executed in himself and if so then William has a good Title 1 And. 265. the Lord Paget's Case 1 Rep. 154. in the Rector of Chedington's Case Fenwyke and Mittfords Case Moor. 284. 1 And. 256. Cr. Eliz. 321. Hodgekinson and Wood's Case 1 Cr. 23. Lane and Pannell's Case 1 Rolls But if this will not hold then William may take an estate by way of a future springing use for this he quoted 2 Rolls Uses p 794. Mills and Parsons num 7. If neither of these ways will serve yet the remainder to the Heirs males of Thomas may vest in Edward for Sir Popham died in the Covenantor's life-time and William may take by descent as special Heir per formam doni though he be not Heir of the body of Edward in whom the remainder first vests Stroud contr The limitation of a remainder in tail to the Heirs males of the Covenantor is bad in its original creation For no man can make himself or his own Heirs Purchasers without departing with the whole Fée-simple Dyer 309. b. 42 Ass 2. 1 H. 5. 8. per Skrene 24 Ed. 3. 28. Bro. Estates 23. 1 H. 8. 65. per Hull 42 Ed. 3. 5. Br. Estates 66. Dyer 69. b. 2 H. 5. 4. b. 1 H. 5. 8. 14 H. 4. 32. a. Cook 2 Inst 333. 1 Inst 22. b. 32 H. 8. Bro. Livery 61. but all these Cases are of Estates passed by Conveyance at Common Law and not by way of use But Vses are directed by the Rules of the Common Law and as to the vesting of them differ not from Estates conveyed in possession 1 Rep. 138. Chudleigh's Case No favourable construction ought to be made for Vses against a Rule of Law The Stat. of H. 8. seems intended to extirpate all private Vses and was in restitution of the Common Law He cited the Earl of Bedford's Case 1 Rep. 130. a. Poph. 3 4. Moor. 718. and Fenwyke and Miltford's Case 1 Inst 22. b. If Thomas took any estate by this settlement he took a Fée-simple For no estate being limited to him if he took any the Law vested it in him Now the act of Law will not settle in him an Estate tail which is a fettered Estate but a Fée-simple if any thing And the rather because the reason of it must be upon a supposition that the old Vse continues still in him being never well limited out of him Then he argued that admitting the limitation to be good yet since it vested in Edward as a Purchasor it is spent by his dying without issue But North Windham and Atkins were of Opinion That if an Estate limited to a man and the Heirs of the body of his Father vest in him be it either by descent or purchase that if he die without issue it shall go to his Brother c. so that in this case if the remainder to the Heirs males of Thomas ever vested in Edward it comes to William as Heir male of the body of Thomas and he is a special Heir to take by descent 2. They agreed that at the Common Law a man could not make his right Heir a Purchasor without parting with the whole feé but that by way of Vse he might Creswold's Case in Dyer is of an Estate executed They agreed the limitation of the remainder in this case to be good and that it vested in Edward as a Purchasor North. It cannot take effect as a springing Vse because where the limitation is of a remainder the Law will never construe it so as to support it any other way This he said he had known resolved in one Cutler's Case in the Kings Bench. Scroggs agréed to the Iudgment but said he went contrary to the Books in so doing which go upon nice and subtile differences little less than Metaphysical Justice versus Whyte IN an Action of Debt against the Defendant as Executor to John Whyte the Defendant pleaded That John did make a Will but made not him Executor and that the said John had bona notabilia in divers Diocesses and that the Archbishop of Canterbury committed Administration to the Defendant and concluded in bar to which there was a demurrer Serjeant Turner 1. This is a plea in a abatement only and the Defendant has concluded in bar Cr. Eliz. 202. Isham Hitchcot 2. The Defendant does not traverse absque hoc that he ever administred as Executor 20 H. 6. 1. b. per Fortescue 3. The Defendant does not shew when Administration was committed to him for if it were committed hanging the Writ it will not abate it 21 H. 6. 8. 5 H. 5. 10 11. Br. tit Executors 7. 4. Hob. 49. 4. The Defendant does not lay it expresly that John Whyte died intestate but only says that he made a Will but did not appoint him the Defendant to be his Executor by that Will and that Administration was granted to him Now also the Defendant was not made Executor by the Will yet he might have been made so by a Codicil annexed to the Will Rolls Rep. 2 part 285. 5. He says not in what Province the bona notabilia
Queen he had made a Prior Grant to one Danson of which Grant we here produce the Inrolment This Grant to Danson was an effectual Grant for anno 11 Jacobi a Presentation was made by J. R. Th. Danson which proves that this Grant took effect and the Defendant himself deduceth the Title of his own Patron under that Grant Barrel Wingate is not to be accounted a stranger for he makes Title by the Letters Letters Patents of 2 Eliz. so that he encounters the Queen with her own Grant and his Title under that Grant was allowed by the Court who gave Iudgment accordingly There was no faint Pleader in the Case as appears by the Record that has been read And covin shall not be presumed if it be not alledged We deduce our Title under the Grant made to Danson 29 Eliz. in our plea but that is only by way of inducement to our traverse Cur. By that Iudgment temp Regin Eliz. the Quéens Title was avoided We must not presume that Wingate had a Title Ex diuturnitate temporis omnia presumuntur solemniter esse acta That Quare Impedit was brought when the matter was fresh Without doubt Danson would have asserted his Title against Wingate if he had had any The Defendant did not do prudently in conveying a Title to his Patron under the Grant made to Danson but issue being taken upon the Quéens dying seized he shall not be concluded to give in Evidence any other Title to maintain the Issue Vpon which Evidence the Iury found for the Defendant that Queen Elizabeth did not die seized North said He was clearly of Opinion That the Kings Title by Vsurpation should be avoided by a Recovery against his Clerk though the Recoverer were a meer stranger The Company of Stationers against Seymour THe Company brought an Action of Debt against Seymour for printing Gadbury's Almanacks without their leave Vpon a special Verdict found the question was Whether the Letters Patents whereby the Company of Stationers had granted to them the sole printing of Almanacks were good or not The Iury found the Stat. of 13 14 Car. 2. concerning Printing They found a Patent made by King James of the same Priviledge to the Company in which a former Patent of Queen Elizabeths was recited and they found the Letters Patents of the King that now is Then they found that the Defendant had printed an Almanack which they found in his verbis figuris and that the said Almanack had all the essential parts of the Almanack that is printed before the Book of Common Prayer but that it has some other additions such as are usual in common Almanacks c. Pemberton The King may by Law grant the sole-printing of Almanacks The Art of Printing is altogether of another consideration in the eye of the Law than other Trades and Mysteries are the Press is a late Invention But the Exorbitancies and Licentiousness thereof has ever since it was first found out been under the care and restraint of the Magistrate For great Mischiefs and Disorder would ensue to the Common-wealth if it were under no Regulation and it has therefore always been thought fit to be under the Inspection and Controul of the Government And the Stat. 14. Car. 2. recites that it is a matter of publique Care In England it has from time to time been under the Kings own Regulation so that no Book could lawfully be printed without an Imprimatur granted by some that derive authority from him to Licence Books But the question here is not Whether the King may by Law grant the sole-Printing of all Books but of any and of what sort of Books the sole-printing of Law-Books is not now in question that seémed to be a point of some difficulty because of the large extent of such a Patent and the uncertainty of determining what should be accounted a Law-Book and what not And yet such a Patent has been allowed to be good by a Iudgment in the House of Péers When Sir Orlando Bridgeman was Chief Justice in this Court there was a question raised concerning the validity of a Grant of the sole-printing of any particular Book with a Prohibition to all others to print the same how far it should stand good against them that claim a Property in the Copy paramount to the Kings Grant and Opinions were divided upon the Point But the Defendant in our Case makes no Title to the Copy only he pretends a nullity in our Patent The Book which this Defendant has printed has no certain Author and then according to the Rule of our Law the King has the property and by consequence may grant his Property to the Company Cur. There is no difference in any material part betwixt this Almanack and that that is put in the Rubrick of the Common-Prayer Now the Almanack that is before the Common-Prayer proceeds from a publick Constitution it was first setled by the Nicene Council is established by the Canons of the Church and is under the Government of the Archbishop of Canterbury So that Almanacks may be accounted Prerogative Copies Those particular Almanacks that are made yearly are but applications of the general Rules there laid down for the moveable Feasts for ever to every particular year And without doubt this may be granted by the King This is a stronger Case than that of Law-Books which has been mentioned The Lords in in the Resolution of that Case relyed upon this That Printing was a new Invention and therefore every man could not by the Common Law have a liberty of printing Law-Books And since Printing has been invented and is become a common Trade so much of it as has been kept inclosed never was made common but matters of State and things that concern the Government were never left to any mans liberty to print that would And particularly the sole Printing of Law-Books has been formerly granted in other Reigns Though Printing be a new Invention yet the use and benefit of it is only for men to publish their Works with more ease than they could before Men had some other way to publish their Thoughts before Printing came in and forasmuch as Printing has always been under the Care of the Government since it was first set on foot we may well presume that the former way was so too Queen Elizabeth King James and King Charles the First granted such Patents as these and the Law has a great respect to common usage We ought to be guided in our Opinions by the Iudgment of the House Peérs which is express in the point the ultimate resort of Law and Iustice being to them There is no particular Author of an Almanack and then by the Rule of our Law the King has the Property in the Copy Those additions of Prognostications and other things that are common in Almanacks do not alter the Case no more than if a man should claim a property in another mans Copy by reason of some inconsiderable
additions of his own Accordingly Iudgment was given for the Plaintiffs nisi causa c. Anonymus ACtion of Trespass for taking away four loads of Wheat four loads of Rye four loads of Barly four loads of Beans and four loads of Pease The Defendant as to part pleaded Not guilty And as to the other part justified for that the Plaintiff is Rector of the Rectory Impropriate of Bradwardyne in the County of Hereford and so bound to repair the Chancel and that the Chancel being out of Repair the Bishop of Hereford after monition to the Plaintiff to repair the same had granted a Sequestration of the Tythes c. of the Rectory and that the Defendants being Church-wardens had taken them into their hands and and so justified by vertue of the Sequestration To which the Plaintiff demurred Serjeant Barrel I do not deny but that the Rector of a Rectory Impropriate may perhaps be bound of common right to repair the Chancel But since the Stat. of 31 H. 8. 32 H. 8. c. 7. has converted the Tythes of such Rectories into a Lay-Feé it has consequently exempted them from the Iurisdiction of the Ordinary A doubt was conceived upon the Stat. of 31 H. 8. whereby Pensions Proxies and Synodals are saved what remedy lay for the recovery of them and it was therefore provided by the Stat. 32 H. 8. that the Church should be sequestred The Possessions of Ecclesiastical Persons were subjected to the Iurisdiction of the Ordinary and might be sequestred in many cases by Process out of the Bishops Courts but when-ever the Possessions of Lay-men were charged with any Ecclesiastical payment or Spiritual charge the Ordinary could not take the Land into his hands nor meddle with the Possession thereof in any sort but the constant usage was to compel the persons by Ecclesiastical Censures Anno 1570. there was application made to the Queén to provide a remedy for the Reparation of the Chancels of such Churches whereof the Parsonages were Impropriated Moreover he said A Sequestration does not bind the Interest nor put the Rector out of possession the not submitting to it is only matter of contempt and it can no more be pleaded in Bar to an Action of Trespass than a Sequestration out of Chancery Atkyns I hope not to see it drawn in question Whether a Sequestration out of Chancery may be pleaded in Bar to an Action of Trespass at the Common Law or no. But if it were pleaded I think we need not scruple to allow such a Plea by reason the Court of Chancery at Westminster prescribes to grant such a Process Which is a Court of such Antiquity that we ought to take notice of their Customs Serjeant Baldwin contr He cited F. N. B. fol. 50. M. Reg. Orig. 44. b. ibid. 48. a. the Stat. of Circumspecte agatis 31 Edw. 1. Joh. Diathan in his Commentary upon the legatine Constitutions of Othobone tit ne Praelati fructus Ecclesiarum vacantium perciperent Linw. 136. de aedificand Ecclesiis The Reparation of the Chancel is onus reale impositum rebus non personis 5th Rep. Caudrie's Case 9. he cited the Stat. of 25 H. 8. cap. 19. Sir John Davie's Reports 70. Vaughan 327. Reg. Jud. 22. 26. 13 H. 4. 17. 21 H. 6. 16. b. 28 H. 8. cap. 9. It is Objected That these Tythes are become a Lay-fée To which I answer That by the Stat. of 32 H. 8. there is a remedy given for them in the Spiritual Court It is Enacted indeed That Fines and Recoveries may be suffered of them as of Lands and Tenemets but they are not made Lay-fees to other purposes No Statute exempts them from the Iurisdiction of the Ordinary nor discharges the onus reale The saving in the Stat. of 31 H. 8. preserves the power of Sequestration as well as other particulars there instanced For all Rights of any person or persons their Heirs and Successors is saved c. the saving is large The Parishioners have a right in the Chancel and to have it kept in repair for the Communion-Table is to stand there though they have not Jus sepulturae there The practice is with us And this is is the first instance of disobedience to such a Sequestration Besides there are many Impropriations in the hands of Deans and Chapters and bodies politick which cannot be excommunicated what process will you grant against them but Sequestration I do not mean Appropriations to wit such Rectories as were appropriated to them before the dissolution of Monasteries and have continued so to this day for there is no question but the Ordinary may sequester them but I mean such Impropriations as they have purchased of the King and his Patentees since the dissolution North. The Bishop is in the nature of an Ecclesiastical Sheriff If an Action of Debt were brought against a Clerk and the Sheriff had returned upon a Fieri facias that the Defendant was Clericus beneficiatus non habens Laicum feodum there issued a Fieri facias to the Bishop upon which he used to sequester as they call it the Ecclesiastical possessions of the Defendant but that is not properly a Sequestration for the Ordinary must not return Sequestrari feci he must return Fieri feci or nulla bona in like manner as a Sheriff of a County must do this I have known in experience that a Bishop has been ordered in such a case to amend his return The reason of this Process was because the possessions of Ecclesiastical persons were so distinct from Temporal possessions that they could not be subject to the ordinary process of the Temporal Law no more than possessions of lay-men could be subject to their Iurisdiction And therefore Rectories impropriate being now incorporated into the Common Law and converted into lay-fees It should seem to me that they are thereby exempted from the Iurisdiction of the Ordinary And this I take to be within the reason of Jeffrie's Case in the 5th Rep. where temporal persons that are liable to contribute towards the repairs of the Church out of their temporal possessions are said to be compellable thereunto by Ecclesiastical Censures It has béen said that the Parishioners have a right in the Chancel but I question that it is called Cancellum a cancellis because the Parishioners are barred from thence It is the right of the Parson Windham thought that by the saving in the Stat. of 31 H. 8. the Iurisdiction of the Ordinary was preserved Atkyns The Parson was chargeable with the reparation of the Chancel in respect of the profits which he received They were the proper Debtors Now I think it may be held that the Impropriation affects only the Surplusage of the profits over and above all Charges and Duties issuing out of the Parsonage and wherewith it was originally charged The reparation of the Chancel is a right arising from the first donation which shall not be taken away but by express words Scroggs accordant North. The Defendants plea is
a distinction Our Saviour is called the Son of David though there were 28 Generations betwixt David and him And a republication may impose another sense upon words different from what they had when they were first written as if a man devise all his Lands in Dale and have but two Acres in Dale the words now extend to no more then those two Acres and if he purchase more and dye without any new publication the new purchased Lands will not pass But if there were a new publication after the purchase they would then pass well enough If a man has issue two Sons called Thomas and he makes a devise to his Son Thomas this may be ascertained by an averment Now suppose that Thomas the deviseé dye living the Father and afterward the Father publisheth his Will anew and says that he did intend that his Son Thomas now dead should have had his Land but now his Will and intent is that Thomas his younger Son now living shall take his Land by the same Will In this case to be sure the second Son Thomas shall take by the devise Here the import of the words is clearly altered by the republication Atkyns The words of this Will would not of themselves be sufficient to carry the Land to the Grand-child nor would the intention of the Devisor do it without them but both together do the business Quae non prosunt singula juncta juvant Wyndham Scroggs differed in Opinion and the cause was adjourned to be argued the next Term. North. A man admitted in forma pauperis is not to have a new Trial granted him for he has had the benefit of the Kings Iustice once and must acquiesce in it We do not suffer them to remove causes out of inferiour Courts They must satisfie themselves with the Iurisdiction within which their Action properly lieth Farrington Lee. ASsumpsit The Plaintiff declares upon 2 indebitatus Assumpsits and a third Assumpsit upon an insimul computasset The Defendant pleaded non Assumpsit infra sex annos the Plaintiff replied that himself is a Merchant and the Defendant his Factor and recites a clause in the Statute in which Actions of Account between Merchants and Merchants and Merchants and their Factors concerning their Trade and Merchandize are excepted and avers that this money became due to the Plaintiff upon an account betwixt him and the Defendant concerning Merchandise c. the Defendant makes an impertinent rejoynder to which the Plaintiff demurs Nudigate pro Querente This Statute is in the nature of a penal Law because it restrains the liberty which the Plaintiff has by the Common Law to bring his Action when he will and must therefore be construed beneficialy for the Plaintiff Pl. 54. Cr. Car. 294. Finche Lambe's case to this purpose Also this exception of Accounts between Merchants and their Factors must be liberally expounded for their benefit because the Law-makers in making such an exception had an eye to the incouragement of Trade and Commerce The words of the exception are other then such Accounts as concern the Trade of Merchandise c. now this Action of ours is not indeed an Action of Account but it is an Action grounded upon an Account And the Plaintiff being at liberty to bring either the one or the other upon the same cause of Action and one of the Actions being excepted expresly out of the limitation of the Statute the other by Equity is excepted also He cited Hill 17 Car. 1. in Marshe's Reports 151. Jones 401. Sandys Blodwell Mich. 13 Car. 1. and prayed Iudgment for the Plaintiff Serjeant Baldwin contra He said it did not appear in the Declaration that this Action was betwixt a Merchant and his Factor so that then the plea in bar is prima facie good And when he comes and sets it forth in his Replication he is too late in it and the replication is not pursuant to his Declaration But all the Court was against him in this Then he said the Statute excepted Actions of Account only and not Actions upon an indeb Assumpsit Cur ' Whereas it has been said by Serjeant Nudigate that the Plaintiff here has an Election to bring an Action of account or an Indebitat Assumpsit that is false for till the Account be stated betwixt them an Action of Account lies and not an Action upon the Case When the Account is once stated then an Action upon the case lies and not an Action of Account Et per North if upon an Indebitat Assumpsit matters are offered in evidence that lie in account I do not allow them to be given in evidence North Wyndham Scroggs the exception of the Statute goes only to Actions of Account and not to other Actions And we take a diversity betwixt an account current and an account stated After the account stated the certainty of the Debt appears and all the intricacy of account is out of doors and the Action must be brought within six years after the account stated But by North if after an account stated upon the ballance of it a sum appear due to either of the parties which sum is not paid but is afterward thrown into a new account between the same parties it is now slip't out of the Statute again Scroggs The Statute makes a difference betwixt Actions upon Account and Actions upon the case The words would else have been All Actions of Account and upon the Case other then such Actions as concern the Trade of Merchandise But it is otherwise penned other then such Accounts as concern c. and as this case is there is no account betwixt the parties the account is determined and the Plaintiff put to his Action upon an insimul computasset which is not within the benefit of the exception Atkyns I think the makers of this Statute had a greater regard to the persons of Merchants then the causes of Action between them And the reason was because they are often out of the Realm and cannot always prosecute their Actions in due time The Statute makes no difference betwixt an account current and an account stated I think also that no other sort of Tradesmen but Merchants are within the benefit of this exception and that it does not extend to Shop-kéepers they not being within the same mischief Adjurnatur Horn versus Chandler COvenant upon an Indenture of an Apprentice wherein the Defendant bound himself to serve the Plaintiff for seven years The Plaintiff sets forth the custom of London That any person above 14 and under 21 unmarried may bind himself Apprentice c. according to the custom and that the Master thereupon shall have tale remedium against him as if he were 21 and alledges that the Defendant did go away from his Service per quod he lost his Service for the said term which term is not yet expired The Defendant pleads a frivolous plea. To which the Plaintiff demurs Heley Though such a Covenant shall
Husband as those persons should approve and this marriage is so approved I rely upon this matter but especially upon the word of Notice Serjeant Ellis There was a Case of a Proviso not to marry but with the consent of certain persons first had in writing Consent was had but not in writing and yet you rul'd it good Had this been a Condition in Law as 't is in fact the Law would have helped her If the Estate had been in her there might have been some reason that she should have 〈◊〉 taken notice how it came to her and of the Limitation c. Had the Earl been alive and consented to the Marriage after it was solemnized he would have continued his affection and the Plaintiffs have had the Estate still Why now the consent of the Lords and Countess is as much as his consent he had tranferred his consent to them This is a Ratihabitio you cannot have a Case of more Circumstances of Equity 1. An Infant 2. No notice 3. Consent after 4. Their Declaration that they thought my Lord meant it in terrorem c. What if two of the Trusteés had died should she never have married surely you would have relieved her Serjeant Baldwin Here is as full a consent to the Marriage as could well be in this Case For since the Plaintiff had no notice of the necessity of the Earls consent before the Marriage it had been the strangest and unexpectedest thing in the world that she should have gone about to have askt it The Heir should not have taken notice of such a Forfeiture and why should a man that is named by way of remainder In case of a personal Legacy this were a void Proviso by the Civil Law For I have informed my self of it It is a Maxim with them Matrimonium esse Liberum This amounts to as much as the Condition that the person should not marry at all For when 't is in the Trustées power they may propose the unagreeablest person in the World 't is a most unreasonable power and not to be favoured Sir Thomas Grimes setled his Land so that his Son should pay portions and if he did not he demised the Lands over and it was adjudged relieveable If I limit that my Daughter shall marry with the consent of two c. if each of them have a design for a different Friend if you will not relieve she can never marry Is it not more probable that if the Earl had lived he would rather have given her a Maintenance than have concluded her under perpetual misfortune and disherison Keeling Chief Justice I do not sée how an averment or proof can be received to make out a mans intention against the words of the Will 4 Co. 4. a. 5 Co. 68. Plo. 345. In Vernon's Case though it were a Case of as much Equity as could be it was denied to be received and so in my Lord Cheney's Case Here was a Case of Sir Thomas Hatton somewhat like this Case wherein no Relief could be had Vaughan Chief Justice I wonder to hear of citing of Presidents in matter of Equity For if there be equity in a Case that Equity is an universal Truth Vi. 1 In. 216. and there can be no President in it So that in any President that can be produced if it be the same with this Case the reason and equity is the same in it self And if the President be not the same Case with this it is not to be cited being not to that purpose Bridgman Lord-Keeper Certainly Presidents are very necessary and useful to us for in them we may find the reasons of the Equity to guide us and beside the authority of those who made them is much to be regarded We shall suppose they did it upon great Consideration and weighing of the matter and it would be very strange and very ill if we should disturb and set aside what has been the course for a long Series of time and ages Thereupon it was Ordered That they should be attended with Presidents and then they said they would give their Opinions Three weeks after they came into Chancery again and delivered their Opinions Seriatim in this manner viz. Hale Chief Baron The general question is whether this Decrée shall pass I shall divide what I have to say into these three questions or particulars First I shall consider whether this be a good Condition or Limitation or conditional Limitation For so I had rather call it It being a Condition to determine the Estate of the Plaintiff and a Limitation to let in the Defendant I think it is good both in Law and Equity and my reasons are first because it is a collateral Condition to the Land and not against the nature of the Estate and she is not thereby bound from Marriage Secondly it obliged her to no more then her duty she had no Mother and in case of Marriage she ought to make application to her Grandmother who was in loco Parentis and since the Estate moved from the Grandfather she was Mistris of the disposition and manner of it 'T is true by the Civil Ecclesiastical Law regularly such a Condition were void And therefore if the question were of a Legacy there might be a great deal of reason to question the validity of it because in those Courts wherein Legacies are properly handled it would have been void But this is a case of Land Devise Indeed it is agreed that this is a good Condition and not to be avoided in it self Secondly This being a good Condition and Limitation over The Question is whether there be relief against it in Equity admitting it were a wilful breach I think there ought not to be any I differ from the reasons pressed at the Bar as first That it was a devise by Will by virtue of the Statute c. but that doth not stick with me For if there may not be a relief against a breach of a Condition in a Will there would be a great shatter and confusion in mens Estates and some of those settled by great advice and there have been Presidents of relief in such cases 2 Car. Fitz versus Seymour And 10 Car. Salmon versus Bernard Secondly It has been urged there should be no relief because there is a Limitation over But that I shall not go upon neither There have been many reliefs in such Cases I will decline the latitude of the Objection for that would go a great deal further then we are aware But yet I think there ought to be no relief in this Case It is not like the case of payment of money because there the party may be answered his debt with damages at another day and so may be fully satisfied of all that is intended him But here my first reason is That it is a Condition to contain the party in that due Obedience which Law and nature require 2 'T is a voluntary settlement to the Grandaughter in
to the second Twisd The Iury have found the Rent to be due for both years and we will now intend that he was in possession all the time for which the Rent is found to be due A Prohibition was prayed to the Ecclesiastical Court at Chester to stay procéedings upon a Libel against one William Bayles for teaching School without Licence but it was denied Redman Edolfe TRespass and Ejectment by Original in this Court Sanders moved in Arrest of Iudgment upon a fault in the Original for a bad Original is not help'd by Verdict But upon Mr. Livesey's certifying that there was no Original at all the Plaintiff had Iudgment though in his Declaration he recited the Original In an Action of Assault and Battery and Wounding the Evidence to prove a Provocation was That the Plaintiff put his hand upon his Sword and said If it were not Assize time I would not take such Language from you The question was if that were an Assault The Court agreed that it was not for he declared that he would not Assault him the Iudges being in Town and the intention as well as the act makes an Assault Therefore if one strike another upon the hand or arm or breast in discourse it s no Assault there being no intention to Assault But if one intending to Assault strike at another and miss him this is an Assault so if he hold up his hand against another and say nothing it is an Assault In the principal case the Plaintiff had Iudgment Medlicott Joyner EJectione firmae The Plaintiff at the Trial offer'd in Evidence a Copy of a Déed that was burnt by the Fire the Copy was taken by one Mr. Gardner of the Temple who said he did not examine it by the Original but he writ it and it always lay by him as a true Copy and the Court agréed to have it read the original Déed being proved to be burnt Twisd Feoffée upon Condition is disseised and a Fine levied and five years pass then the Condition is broken the Feoffor may enter for the Disseisor held the Estate subject to the Condition and so did the Conizee for he cannot be in of a better Estate then the Conizor himself was Dawe Swayne AN Action upon the Case was brought against one for suing the Plaintiff in placito debiti for 600 l. and falsly and maliciously affirming to the Bailiff of Westminster that he did owe him 600 l. whereby the Bailiff insisted upon extraordinary Bail to his Damage c. The Defendant traverses absque hoc that he did falsly and maliciously affirm to the Bailiff of Westminster that he did owe him so much Winnington moved in Arrest of Iudgment that the Action would not lie But the Plaintiff had Iudgment Keel If there had béen no cause of Action an Action upon the Case would not lie because he has a recompence by Law but here was a cause of Action If one should arrest you in an Action of 2000 l. to the intent that you should not find Bail and keep you from practice all this Term and this is found to be falsly and maliciously shall not you have an Action for this this Twisden said he knew to have been Serjeant Rolls his Opinion Morton Foxley's case is That if a man be outlaw'd in another County where he is not known an Action upon the Case will lye so an Action lies against the Sheriff if reasonable Bail be offered and refused Twisd If three men bring an Action and the Defendant put in Bail at the Suit of four they cannot declare but if he had put in Bail at the suit of one that one might declare against him Iudgment was entred as of Trinity Term for the Queen Mother and a Writ of Enquity of damages was taken out returnable this Term and she died in the Vacation-time Resolved that the first was but an interlocutory Iudgment and that the Action was abated by her death Twisd Some have questioned how you shall come to make the death of the party appear between the Verdict and the day in Bank and I have known it offer'd by Affidavit and by suggestion upon the Roll and by motion Troy an Attorney AN Information of Extortion against Troy an Attorney It was moved in arrest of Iudgment That Attorneys are not within any of the Statutes against Extortion and therefore the Information concluded ill the conclusion being contra formam Statuti Twisd The Statute of 3 Jac. cap. 7. is express against Attornies Keel I think as thus advised that Attornies are within all the Statutes of Extortion It was afterwards moved in arrest of Iudgment because the Information was insufficient in the Law for Sir Tho. Fanshawe informed that Mr. Troy being an Attorney of the Court of Common Pleas did at Maidstone cause one Collop to be impleaded for 9 s. 4 d. debt at the suit of one Dudley Sellinger c. and this was ad grave damnum of Collop c. but it is not expressed in what Court he caused him to be impleaded and that which the Defendant is charged with is not an offence for he saith that he did cause him to be impleaded and received the money the same day and perhaps he received the money after he had caused him to be impleaded Then it is not sufficiently alledged that he did illicite receive so much and Extortion ought to be particularly alledged Nor is there any Statute that an Attorney shall receive no more than his just Fées The profession of an Attorney is at Common Law and allowed by the Statute of Westm 1. cap. 26. and the Statute of 3 Jac. does not extend to this matter Non constat in this case if what he received was for Fees or no besides the suit for an offence against that Statute must be brought by the party not by Sir Tho. Fanshawe Keel If the party grieved will not sue for the penalty of treble damages given by that Statute yet the King may prosecute to turn him out of the Roll. Twisd I doubt that nor is it clear whether an Information will lie at all upon that Statute or not for the Statute does not speak of an Information Keel Whenever a Statute makes a thing criminal an Information will lie upon the Statute though not given by express words Twisd It appears here that this money was not received of his Client for he was against Collop But he ought to shew in what Court the impleading was for otherwise it might be before Mr. Major in his Chamber To which the Court agreéd So the Information was quash'd Burnet Holden THere were these two points in the case 1. If the Defendant dye after the day of Nisi prius and before the day in Bank whether the Iudgment shall be said to be given in the life of the Defendant 2. Admit it shall yet whether the Executor shall have the advantage taken from him of retaining to satisfie his own debt To the first
neither Keeling If an Infant let you a House shall he not have an Action against you for the Rent Twisd I have known an Action upon the case brought by an Infant upon a promise to pay so much money in consideration that he would permit the Defendant to enjoy such a House it was long insisted upon that this was not a good consideration because not reciprocal for the Infant might avoid his promise if an Action were grounded upon it against him but it was adjudged to be a good consideration and that the Action was maintainable And in the principal case the Court gave Iudgment for the Plaintiff Nisi c. Bear versus Bennett TWisden When a man is arrested and has lain in Prison three Terms and is discharged upon Common bail whether shall the Plaintiff ever hold the Defendant to special Bail afterward for the same cause if he begins anew Keel If he may then may a man be kept in Prison for ever at that rate At last it was agreed that if he would pay the Defendant his Costs for lying so long in prison he should have special Bail Mr. Masters moved for a Prohibition to the Spiritual Court to stay a Suit there against a man for having married his Wives Sisters Daughter alledging the Marriage to be out of the Levitical degrees Cur. Take a Prohibition and demur to it for it is a case of moment Dominus Rex versus Turnith MOved to quash an Indictment upon 5 Eliz. cap. 2. for exercising a Trade in Chesthunt in Hertfordshire not having been an Apprentice to it for seven years because the Statute says they shall proceed at the Quarter-Sessions and the word Quarter is not in the Indictment Twisden That word ought to be in And I believe the using of a Trade in a Country Village as this is is not within the Statute Morton accorded Rainesford It will be very prejudicial to Corporations not to extend the Statute to Villages Twisden I have heard all the Iudges say that they will never extend that Statute further then they needs must Obj. further That there wanted these words sc Ad tunc ibidem onerati jurati for which all the three Iudges Keeling being absent conceived it ought to be quash'd A cause was removed out of London by Habeas Corpus wherein the Plaintiff had declared against the Defendant as a feme sole Merchant and Bartue moved for a Procedendo because he said they could not declare against her here as a feme sole for that she had a Husband Jones contra The Husband may then be joyned with her for he is not beyond Sea Twisd I think a Procedendo must be granted for the cause alledged It was resolved in Langlin Brewin's case in Cro. though not reported by him that if the Wife use the same Trade that her Husband does she is not within the Custom And they are to determine the matter there whether this case be within their Custom perhaps a Victualler as this Trade is is not such a Trade as their Custom will warrant and whether it will warrant it or not is in their Iudgment A Procedendo was granted Tomlin versus Fuller A Special Action on the Case was brought for keeping a passage stopt up so that the Plaintiff could not come to cleanse his Gutter After Verdict for the Plaintiff it was moved in Arrest of Iudgment that there ought to have been a request for the opening of it Answ It s true where the Nusance is not by the party himself there must be notice before the Action brought but in this case the wrong began in the Defendants own time Twisden I know this hath been ruled where a man made a Lease of a House with free liberty of ingress c. through part of the Lessors House the Lessor notwithstanding might shut up his doors and was not bound to leave them open for his coming in at one or two of the Clock at night but he must keep good hours And must the Defendant in this case keep his Gate always open expecting him wherefore it seems he ought to have laid a request Cur. It s aided by the Verdict Twisden It is not good at the Common Law and the Defendant might well have demurred for that cause Judgment pro Querente Butler Play UPon a motion for a new Trial in a cause where the matter was upon protesting a Bill of Exchange Serj-Maynard said the protest must be on the day that the money becomes due Twisden It hath been ruled That if a Bill be denied to be paid it must be protested in a reasonable time and that 's within a Fortnight but the Debt is not lost by not doing it on the day A new Trial was denied Hughes Underwood KEeling The very Sealing of the Writ of Error is a Supersedeas to the Execution Twisd There was once a Writ of Error to remove the Record of a Iudgment between such and such but some of the parties names were left out and by my Brother Wyld's advice that Writ not removing the Record they took out Execution But the Court was of Opinion that though the Record was not removed thereby of which yet they said he was not Iudge whether it was or not yet that it so bound up the cause that they could not take out Execution It is indeed good cause to quash the Writ of Error when it comes up but Execution cannot be taken out Term. Hill 21 22 Car. II. 1669. in B. R. Jefferson Dawson IN a Scire facias upon a Recognisance in Chancery entered into by one Garraway There was a demurrer to part and issue upon part And the question was whether this Court could give Iudgment upon the demurrer Jones The Iudgment upon the demurrer must be given in Chancery The Court of Chancery cannot try an Issue and therefore it is sent hither to be tryed but with the demurrer this Court has nothing to do Indeed the books differ in case of an Issue sent hither out of Chancery whether the Iudgment shall be here or there Keilway says it ought to be given here My Lord Coke in his 4 Inst says it must be given in Chancery But none ever made it a question whether Iudgment upon a demurrer were to be given here or there V. Co. Jurisdiction of Courts fol. 80. Saunders contra When there is a demurrer upon part and Issue upon part the Record being here this Court ought to give Iudgment because there can be but one Execution Keeling If the Record come hither entirely we cannot send it back again I cannot find one Authority that the Record shall be removed from hence He cited Keilway 941. 21 H. 7. Co. 2. 12. Co. Entries 678. 24 Ed. 3. fol. 65. there it is held that Iudgment shall be given here upon a demurrer Now if it must not be given here there must be two Executions for the same thing or else they must loose half for they can
have but one Elegit At another day the Iudges gave their Opinions severally that Iudgment ought to be given in this Court upon the whole Record for that it is an entire Record and the Execution one and if Iudgment were to be given there upon the demurrer there must be two Executions And because the Record shall not be remanded Twisden said the Record it self was here and that it had been so adjudged in King and Holland's case and in Dawkes Batter's case though my Lord Chief Baron being then at the Bar urged strongly that it was but the tenour of the Record that was sent hither And it is a Maxim in Law that if a Record be here once it never goes out again for that here it is coram ipso Rege so that if we do not give Iudgment here there will be a failer of Iustice because we cannot send the Record back The Iury that tries the Issue must assess the damages upon the demurrer The Record must not be split in this case Accordingly Iudgment was given here Willbraham Snow TRover Conversion Vpon Issue Not-guilty the Iury find a special Verdict viz. that one Talbot recovered in an Action of Debt against one Wimb and had a Fierr facias directed to the Sheriff of Chester whereupon he took the Goods into his possession and that being in his possession the Defendant took them away and converted them c. and the sole point was whether the possession which the Sheriff has of Goods by him levied upon an Execution is sufficient to enable him to bring an Action of Trover Winnington I conceive the Action does not lie An Action of Trover and Conversion is an Action in the right and two things are to be proved in it viz. a Property in the Plaintiff and a Conversion in the Defendant I confess that in some cases though the Plaintiff have not the absolute property of the Goods yet as to the Defendants being a wrong-doer he may have a sufficient property to maintain the Action against him But I hold that in this case the property is not at all altered by the seizure of the Goods upon a Fieri facias for that he cited Dyer 98 99. Yelvert 44. This case is something like that of Commissioners of Bankrupts they have power to sell and grant and assign but they cannot bring an Action their Assignees must bring all Actions It is true a Sheriff in this case may bring an Action of Trespass because he has possession but Trover is grounded upon the right and there must be a Property in the Plaintiff to support that whereas the Sheriff takes the Goods by vertue of a nude Authority As when a man deviseth that his Executors shall sell his Land they have but a nude Authority Cur. The Sheriff may well have an Action of Trover in this case As for the case in Yelvert 44. there the Sheriff seiz'd upon a Fieri facias then his Office determined then he sold the Goods and the Defendant brought Trover And it was holden that the Property was in the Defendant by reason of the determining of the Sheriffs Office and because a new Fieri facias must be taken out for that a venditioni exponas cannot issue to the new Sheriff They compared this case to that of a Carryer who is accountable for the Goods that he receives and may have Trover or Trespass at his Election Twisden said the Commissioners of Bankrupts might have an Action of Trover if they did actually seize any Goods of the Bankrupts as they might by Law Rainsford said let the Property after the seizure of Goods upon an Execution remain in the Defendant or be transferred to the Plaintiff since the Sheriff is answerable for them and comes to the possession of them by the Law it is reasonable that he should have as ample remedy to recover damages for the taking of them from him as a Carryer has that comes to the possession of Goods by the delivery of the party Morton said if Goods are taken into the custody of a Sheriff and the Defendant afterward become Bankrupt the Statute of Bankrupts shall not reach them which proves the Property not to be in the Defendant Twisd I know it hath been urged several times at the Assizes that a Sheriff ought to have Trespass and not Trover and Counsel have pressed hard for a special Verdict Morton My Lord Chief Justice Brampston said he would never deny a special Verdict while he lived if Counsel did desire it Gavell Perked ACtion for words viz. You are a Pimp and a Bawd and fetch young Gentlewomen to young Gentlemen Vpon Issue Not-guilty there was a special Verdict found Jones The Declaration says further whereby her Husband did conceive an evil Opinion of her and refused to cohabit with her But the Iury not having found any such special damage the question is whether the words in themselves are Actionable without any relation had to the damage alledged I confess that to call one Bawd is not Actionable for that is a term of reproach used in Scolding and does not imply any act whereof the Temporal Courts take notice for one may be said to be a Bawd to her self But where one is said to be a Bawd in such actions as these it is actionable 27 H. 8. 14. If one say that another holds Bawdry it is Actionable 1 Cro. 329. Thou keepest a Whore in thy House to pull out my Throat these words have been adjudged to be Actionable for that they express an act done and so are special and not general railing words In Dimock's case 1 Cro. 393. Two Iustices were of Opinion that the word Pimp was Actionable of it self But I do not relie upon that or the word Bawd but taking the words all together they explain one another the latter words show the meaning of the former viz. that her Pimping and Bawdry consisted in bringing young men and women together and what she brought them together for is sufficiently expressed in the words Pimp and Bawd viz. that she brought them together to be naught And that is such a Slander as if it be true she may be indicted for it and is punishable at the Common Law The Court was of the same Opinion and gave Iudgment for the Plaintiff Nisi c. Healy Warde ERror of a Iudgment in Hull Weston The Action is brought upon a promise cum inde requisitus foret and does not say cum inde requisitus foret infra Jurisdictionem Twisd Though the agreement be general cum inde requisitus foret yet if he does request within the Iurisdiction it is good enough and so it has been ruled and this Error was disallowed Boswill Coats TWo several Legacies are given by Will to Alice Coats and John Coats the Executors deposit these Legacies in a third persons hand for them and take a Bond of that third person conditioned That if the Obligor at the request of
_____ shall bring in Alice and John Coats when they shall come to their Ages of Twenty one years to give such a Release to the Executors of Francis Gibbs as they shall require then c. one of the Legatees comes of age and during the minority of the other the Bond is put in Suit and this whole matter is disclosed in the Pleading And the question was whether the Defendant was obliged to bring him in to give a Release that was of Age before the Action brought or might stay till both were of Age before he procured a Release from either The Court was of Opinion that it must be taken respectively and because it appears that the Legacies were several that several Releases ought to be given upon the reason of Iustice Wyndham's case 5th Report And Twisden said if there were no more in it then this sc when they shall come to their Ages of c. it were enough to have the Condition understood respectively for they cannot come to their Ages at one and the same time And Iudgment was given accordingly Twisden If an Executor plead several Iudgments you may reply to every one of them obtent per fraudem or you may plead separalia Judicia c. obtent per fraudem but in pleading separalia Judicia obtent per fraudem if one be found to be a true debt you are gone Keeling Twisden Notwithstanding the Stat. of 23 H. 6. which obliges the Sheriff to take Bail yet he can make no other Return of a Capias then either cepi corpus or non est inventus for at the Common Law he could return nothing else and the Statute though it compels him to take Bail does not alter the Return and so in a case betwéen Franklin Andrews it has been adjudged here Crofton OFfley moved for a Certiorari to the Iustices of Peace for Middlesex to remove an Indictment against one Crofton upon the late Statute made against Non-conformist Ministers coming within five miles of a Corporation the Indictment was traversed He urged that by the Statute no Indictment will lie for such Offence For where an Act of Parliament enacts that the Penalty shall be recovered by Bill Plaint or Information as the Statute upon which this Indictment is grounded does there an Indictment will not lie 2 Cro. 643. Twisd If the Statute appoint that the penalty shall be recovered by Bill Plaint c. and not otherwise there I confess an Indictment will not lie but without negative words I conceive it will though the Statute be Introductive of a new Law and create an Offence which was none at the Common Law For whenever a thing is prohibited by a Statute if it be a publick concern an Indictment lies upon it and the giving other remedies as by Bill Plaint c. in affirmative words shall not take away the general way of proceeding which the Law appoints for all Offences Keeling differed in Opinion and thought that where a Statute created a new Offence and appointed other remedies there could be no proceeding by way of Indictment Afterward Offley moved it again and cited 2 Cro. 643. 3 Cro. 544. Mag. Chart. 201. 228. Vpon the second motion Keeling came over to Twisden's Opinion But it was objected That upon an Indictment the Poor of the Parish would lose their part of the penalty to which Twisden said that he knew it to have been adjudged otherwise at Serjeants-Inn and that where a Statute appoints the Penalty to be divided into thrée parts one to the Informer another to the King and the third to the Poor that in such case where there is no Informer as upon an Indictment there the King shall have two parts and the Poor a third The King versus Baker AN Indictment in Hull for saying these words viz. That whenever a Burgess of Hull comes to put on his Gown Sathan enters into him Levings moved that these words would not bear an Indictment Keeling The words are a Scandal to Government Levings The Indictment concludes in malum exemplum inhabitantium whereas it should be quamplurimorum subditorum Domini Regis in tali casu delinquentium And for this adjudged naught Twisden If the Defendant in an Action of Debt for Rent plead nil debet he may give in Evidence a suspension of the Rent A Parson Libels in the Spiritual Court against several of his Parishioners for Tythe-Turfe They pray a Prohibition Keeling Turfe Gravel and Chalke are part of the Fréehold and not Tythable They granted one Prohibition to all the Libels but ordered the Plaintiffs to declare severally Maleverer versus Redshaw DEbt upon a Bond of 40 l. the Condition was for appearing at a certain day and concluded if the party appeared then the Condition to be void The Defendant pleaded the Statute of 23 H. 6. Coleman The Bond is void by the express words of the Statute being taken in other form then the Statute prescribes Keeling If the Condition of a Bond be That if the Obligor pay so much money then the Condition to be void in that case the Bond is absolute Twisden I have heard my Lord Hobart say upon this occasion that because the Statute would make sure work and not leave it to Exposition what Bonds should be taken therefore it was added that Bonds taken in any other form should be void For said he the Statute is like a Tyrant where he comes he makes all void but the Common Law is like a Nursing Father makes void only that part where the fault is and preserves the rest Keeling If the Condition had béen that the party should appear and had gone no further it would then have been well enough Twisd Then why may not that which follows be rejected as idle and surplusage Cur. Advisare vult Jones versus Tresilian AN Action of Trespass of Assault and Battery Defendant pleads de son assault demesne The Plaintiff replies That the Defendant would have forced his Horse from him whereby he did molliter insultum facere upon the Defendant in defence of his possession To this the Defendant demurred Morton Molliter insultum facere is a contradiction Suppose you had said that molliter you struck him down Twisden You cannot justifie the beating of a man in defence of your possession but you may say that you did molliter manus imponere c. Keeling You ought to have replyed that you did molliter manus imponere quae est eadem transgressio Cur. Quer ' nil capiat per billam unless better cause be shown this Term. Rich Morris IN an Action of Debt for not performing an Award The Plaintiff declares that inter alia Arbitratum fuit c. Twisd That is naught Crisp versus the Mayor of Berwick AN Action of Covenant is brought against the Mayor Burgesses and Corporation of Berwick upon an Indenture of Demise wherein the Plaintiffs declare that the Defendants did demise to them a House in Berwick with a Covenant
5 Ed. 4. 6. Now for Authorities I confess there are great ones against me 2 Cro. fol. 335. Heath Ridley Moor. 838. Courtney versus Glanvill My Lord Coke in his Chapter of Praemunire 22 Ed. 4. fol. 37. But the greatest Authority against me is the case of Throgmorton Finch reported by my Lord Coke in his Treatise of Pleas of the Crown Chapter Praemunire But the practice has béen contrary not one person attainted of a Praemunire for that cause In King James his time the matter was referred to the Counsel who all agreed that the Chancery was not meant within the Statute which Opinions are inrolled in Chancery And the King upon the report of their Reasons ordered the Chancellor to proceed as he had done and from that time to this I do not find that this point ever came in question And so he prayed Iudgment for the Defendant Saunders As to that objection that at the time when this Statute was made there were no proceedings in Equity I answer that granting it to be true yet there is the same mischief The proceedings in one part of the Chancery are coram Domino Rege in Cancellaria but an English Bill is directed to the Lord Keeper and decreed so that there is a difference in the proceedings of the same Court But admit that Courts of Equity are the Kings Courts yet they are aliae Curiae if they hold plea of matters out of their Iurisdiction 16 Ri. 2. cap. 5. Rolls first part 381. There is a common objection that if there were no relief in Chancery a man might be ruined for the Common Law is rigorous and adheres strictly to its rules I cannot answer this Objection better then it is answered to my hand in Dr. Stud. lib. 1. cap. 18. he cited 13 Ri. 2. num 30. Sir Robert Cotton's Records It is to be considered what is understood by being impeached Now the words of another Act will explain that viz. 4 H. 4. cap. 23. by that Act it appears that it is to draw a Iudgment in question any other way then by Writ of Error or Attaint One would think this Statute so fully penned that there were no room for an evasion There was a temporary Statute which is at large in Rastall 31 H. 6. cap. 2. in which there is this clause viz. That no matter determinable at Common Law shall be heard elsewhere A fortiori no matter determined at Common Law shall be drawn in question elsewhere He cited 22 Ed. 4. 36. Sir Moyle Finch Throgmorton 2 Inst 335. and Glanvill Courtney's case He put them also in mind of the Article against Cardinal Woolsey in Coke's Jurisdiction of Courts tit Chancery So he prayed Iudgment for the Plaintiff Keeling It is fit that this cause be adjourned into the Exchequer-chamber for the Opinions of all the Iudges to be had in it We know what heats there were betwixt my Lord Coke Ellesmere which we ought to avoid Turner Benny A Writ of Error was brought to reverse a Iudgment in the Common Pleas in an Action upon the Case wherein the Plaintiff declared that it was agréeed betwéen himself and the Defendant that the Plaintiff should surrender to the use of the Defendant certain Copy-hold Lands and that the Defendant should pay for those Lands a certain sum of money and then he sets forth that he did surrender the said Lands into the hands of two Tenants of the Manor out of Court secundum consuetudinem c. Exception The promise is to surrender generally which must be understood of a surrender to the Lord or to his Steward and the Declaration sets forth a surrender to two Tenants which is an imperfect surrender 1 Cro. 299. Keeling But in that case there are not the words secundum consuetudinem as in this case Jones Hill 22 Car. 1. Rot. 1735. betwixt Treburn Purchas two points were adjudged 1. That when there is an agréement for a surrender generally then such a particular surrender is naught 2. That the alledging of a surrender secundum consuetudinem is not sufficient but it ought to be laid that there was such a Custom within the Manor and then that according to that Custom he surrendred into c. accordingly is 3 Cro. 385. Coleman contra We do say that we were to surrender generally and then we aver that actually we did surrender secundum consuetudinem and if we had said no more it had béen well enough Then the adding into the hands of two Tenants c. I take it that it shall not hurt Besides we need not to alledge a performance because it is a mutual promise and he cited Camphugh Brathwait's case Hob. Twisden I remember the case of Treborne he was my Clyent And the reason of the Iudgment is in Combe's case 9th Rep. because the Tenants are themselves but Attornies And they compared it to this case I am bound to levy a Fine it may be done either in Court or by Commission but I must go and know of the person to whom I am bound how he will have it and he must direct me In the principal case the Iudgment was affirm'd Nisi c. Turner Davies AUdita Querela The point was this viz. an Administrator recovers damages in an Action of Trover and Conversion for Goods of the Intestate taken out of the possession of the Administrator himself then his Administration is revoked and the question is whether he shall have Execution of the Iudgment notwithstanding the revocation of his Administration Saunders I conceive he cannot for the Administration being revoked his Authority is gone Doctor Druries case in the 8th Report is plain And there is a President in the new book of Entries 89. Barrell I conceive he may take our Execution for it is not in right of his Administration he lays the Conversion in his own time and he might in this case have declared in his own name and he cited and urged the reason of Pakman's case 6th Report 1 Cro. Keeling He might bring the Action in his own name but the Goods shall be Assets If Goods come to the possession of an Administrator and his Administration be repealed he shall be charged as Executor of his own wrong now in this case the Administration being repealed shall he sue Execution to subject himself to an Action when done Twisden I think it hath béen ruled that he cannot take out Execution because his Title is taken away Iudgment per Cur. versus Defendentem Jordan Martin EXception was taken to an Avowry for a Rent-charge that the Avowant having distrained the Beasts of a Stranger for his Rent does not say that they were levant couchant Coleman The Beasts of a Stranger are not liable to a Distress unless they be levant couchant Roll. Distress 668. 672. Reignold's case Twisd Where there is a Custom for the Lord to seize the best Beast for a Heriot and the Lord does seize the
best Beast upon the Tenancy it must come on the other side to shew that it was not the Tenants Beast Keel The Cattel of a Stranger cannot be distrained unless they were levant couchant but it must come on the other side to show that they were not so So Judic pro Quer ' Wayman Smith AProhibition was prayed to the Court of Bristol upon this suggestion viz. That the cause of Action did not arise within the Iurisdiction of the Court Winnington There was a case here between Smith Bond Hill 17 Car. 2. Rot. 501. a Prohibition to Marleborough the suggestion grounded on Westm 1. cap. 34. granted And there needs not a Plea in the Spiritual Court to the Iurisdiction for that he cited F. N. B. 49. But he said he had an Affidavit that the cause of Action did arise out of their Iurisdiction Twisden I doubt you must plead to the Iurisdiction of the Court I remember a case here wherein it was held so and that if they will not allow it then you must have a Prohibition Winnington Fitzherbert is full Ruled that the other side shall shew cause why a Prohibition should not go and things to stay Humlock Blacklow DEbt upon a Bond for performance of Covenants in Articles of agreement The Plaintiff covenanted with the Defendant to assign over his Trade to him and that he should not endeavour to take away any of his Customers and in consideration of the performance of these Covenants the Defendant did Covenant to pay the Plaintiff 60 l. per annum during his life Saunders The words in consideratione performationis make it a Condition precedent which must be averred 3 Leon. 219. and those Covenants must be actually performed Twisden How long must he stay then till he can be entitled to his Annuity as long as he lives for this Covenant may be broken at any time That 's an Exposition that corrupts the Text. Judic nisi c. It was moved by one Hunt that the Venue might be changed in an Action of Indebitat Assumpsit brought by Mr. Wingfield Jones I conceive it ought not to be changed being in the case of a Counsellor at Law by reason of his attendance at this Court. Twisd In Mr. Bacon's case of Grays-Inn they refused to change the Venue in the like case So not granted An Indictment against one Morris in Denbigh-shire for Murther was removed into the Kings Bench by Certiorari to prevent the Prisoners being acquitted at the Grand-Sessions and the Court directed to have an Indictment found against him in the next English County viz. at Shrewsbury Vide infra Taylor Rouse Church-wardens of Downham versus their Predecessors THe Action was to make them Account for a Bell. They plead that they delivered it to a Bell-founder to mend and that it is yet in his hands The Plaintiff demurs the cause of his Demurrer was that this was no good Plea in Bar of the Account though it might be a good Plea before Auditors 1 Roll 121. Pemberton I conceive it is a good Plea for wherever the matter or cause of the Account is taken off the Plea is good in Bar. But he urged that the Action was brought for taking away bona Ecclesiae and not bona Parochianorum as it ought to have been Court The Property is not well laid So ordered to mend all and plead de novo Term. Mich. 22 Car. II. 1670. in B. R. AN Inquisition was returned upon the Statute against pulling down Inclosures They took Issue as to the damages only It was moved that before the Trial for the damages there might be Iudgment given to have them set up again having been long down Twisden When you have Iudgment for the damages then one Distringas will serve for setting up the Inclosures and the damages too As in an Action where part goes by default and the other part is traversed you shall not take out Execution till that part which is traversed be tried Vpon a motion by Mr. Dolbin for an Attachment Twisden said if a man has a Suit depending in this Court and be coming to Town to prosecute or defend it here he cannot be sued elsewhere But if a man come hither as a Witness he is protected eundo redeundo Wootton Heal. AN Action of Covenant was brought upon a Warranty in a Fine a term for years being Evicted Saunders I acknowledge that an Action of Covenant does well lye in this case but the Plaintiff assigns his breach in this viz. that one Stowell habens legale jus titulum did enter upon him and evict him which perhaps he did by virtue of a title derived from the Plaintiff himself 2 Cro. 315. Kirby Hansaker Jones contra To suppose that Stowell claimed under the Plaintiff is a foreign intendment and it might as well come on the Defendants side to show it And since that case in 2 Crook the Statute of 21 Jac. and the late Act have much strengthned Verdicts Twisden The Statutes do not help when the Court cannot tell how to give Iudgment The Plaintiff ought to entitle himself to his Action and it is not enough if the Iury entitle him Jones You have waived the title here and relyed upon the Entry of the Issue only which is non intravit c. Cur. advisare vult Lassells Catterton AN Action of Covenant for further assurance the Covenant being to make such Conveyance c. as Counsel should advise they alledge for breach that they tendred such a Conveyance as was advised by Counsel viz. a Lease and Release and set it forth with all the usual Covenants Levings moved in Arrest of Iudgment I conceive they have tendred no such Conveyance as we are bound to execute for we are not obliged to Seal any Conveyance with Covenants nor with a Warranty Besides that which they have tendred has a Warranty not only against the Covenantor but one Wilson 2 Cro. 571. 1 Rolls 424. Again our Covenant is to convey all our Lands in Bomer and the Conveyance tendred is of all our Lands in the Lordship of Bomer Twisden For the last exception I think we shall intend them to be both one And I know it hath been held that if a man be bound to make any such reasonable assurance as Counsel shall advise usual Covenants may be put in for the Covenant shall be so understood But there must not be a Warranty in it though some have held that there may be a Warranty against himself but I question whether that will hold But Weston on the other side said that the Objection as to the Warranty was fatal and he would not make any defence The King versus Morris Vid. sup MR. Attorney Finch shewed cause why a Certiorari should not be granted to remove an Indictment of Murder out of Denbighshire in Wales Twisden In 2 Car. 8 Car. it was held that a Certiorari did lye into Wales Morton By 34 H. 8. the Iustices
enters Mr. Attorney Finch The first question will be whether this Proviso be a Condition or a Limitation 2. Whether notice be requisite in this case or not For the first I take it to be a Limitation and that it must so be expounded and not as a Condition Dyer 10 Eliz. 317. Plowd queres 108. Moor. 312. 29 Eliz. Com. Banc. 1 Leon. Plac. 383. 2 Leon. 581. Poph. 6 7. 1 Roll. Condition 411. and the same case is in Owen's Reports 112. In case of a Devise a Condition must be construed as a Limitation 3 Cro. 388. There seems to be an Authority against me in Mary Portingtons case 10 Rep. in a reason there given but it is an accumulative reason and does not come to the point adjudged I shall insist upon Wellock Hamond's case in Leon. it is reported likewise in Boraston's case 3 Rep. and my Lord Coke says that it doth resolve a Quaere in Dyer 327. so that express words of Condition may by construction in a Will amount to no more then a Limitation The second point is whether he shall be excused for breach of this Condition for want of notice First I shall consider it in respect of the person Secondly I respect of the grounds of notice in any case First in respect of the person now he may be considered in two capacities as an Infant and as a Devisée Now his Infancy cannot excuse him for the Condition was annexed to the Devise expresly because he was an Infant Secondly He is a Purchasor Now if an Infant purchase an Advowson and the Incumbent dye Laps shall incur though he had notice of the death of the Incumbent and there is the same reason in this case where he is Deviseé Thirdly An Infant is bound by all Conditions in Déed though not by Conditions in Law Com. 57. indeed 31 Ass 17. is against it but in Bro. Condition Plac. 114. that case is said to be no Law and Bro. agreeth with Plowd 375. Secondly Consider him as Devisée and then there will be less ground to excuse the want of notice I take it to be a good difference betwixt Lands devised to an Heir upon Condition and Lands devised to a Stranger upon Condition To the Heir notice must be given but not to a Stranger for the Heir is in by Descent and a Title by Law cast upon him And he may very well be supposed to take no notice of a Devise because the Law takes no notice of a Devise to him Now a Stranger as he must needs take notice of the Estate given so he may very well be obliged to take notice of the terms upon which it is given 4 Report 83. As for the grounds and reasons of the Law when notice in any case is requisite and when not First I take it for a rule that every man is bound to take notice when none is bound to give him notice 1 H. 7. 5. 13 H. 7. 9. 5 Rep. Sir Henry Constable's case 3 Leon. Burleigh's case in the Exchequer 1 Cro. 390. Rolls 856. Litt. Sect. 350. My second ground is that where persons are equally privy and concerned there needs no notice Mich. 1649. Leviston's case 1 Leon. 31. 7 Rep. 117. Mallorie's case 14 H. 7. 21. The third consideration ariseth from the circumstances and strict formality of all notice You must not give notice of a Will by word of mouth but you must leave a Copy of it compared 8 Rep. Fraunce's case Now the Infant in Remainder is incapable of observing these circumstances and they being both Strangers are both to take notice at their peril Now to answer Objections one is that the Condition is penal and inflicts a forfeiture of an Estate and that therefore notice ought to be given I say this is rather a declamation then an argument in Law I will put a case where he that is subject to a penalty must give notice to preserve himself Poph. 10. so that penalty or no penalty is not the business but privity or no privity guides the case And Fraunce's case 8 Report was ruled upon the privity not upon the penalty 2 Cro. 56. and a case adjudged in this Court betwixt Lee and Chamberlyne seem against me but they differ from ours and the 1 Cro. a case between Alford and the Communalty of London is an Authority for me Mr. Solicitor North pro Defendente I will not speak much to that point whether it be a Condition or a Limitation I shall relie for that upon Mary Portington's case that express words of Condition cannot be construed to be a Limitation Dyer 127. Now if this be a Condition then the Heir regularly ought to enter which he cannot do in this case because a Remainder is here limited over The Law does interpret Conditions according to the nature and circumstances of the thing and not strictly always according to the Letter I do not observe that in any case the Law suffers a man to incur a forfeiture where he hath not notice or is not in the Law supposed to have notice He cited 2 Cro. 144. Molineux Molineux and Fraunce's case 8 Report He said it was not the intention of the party that the Devisée should be strip'd of his Estate and be never the wiser Saunders Gerard's case is for me of which I have a private report He urged also the case of Curtis Wolverton Dyer 354. and Penant's case 4 Report It is objected That they that are to have the benefit of the Estate ought to take notice I answer the same Objection might be made in Fraunce's case Another reason given to excuse the not-giving of notice is that the Condition imports no more then Nature teacheth but I answer in case the Executor consent it is no matter whether the Grand-mother consent or not And for their Authorities I shall rely upon 1 Cro. 391. and upon Fraunce's case for answering them So he prayed Iudgment for the Defendant Hales All the difference betwixt this case and Fraunce's is that in that case there is an Heir at Law and not in this Now the Chancery is so just as to observe the Civil and Canon Law as to personal Legacies but not as to Land Anonymus AN Action upon the case upon a promise to pay money three months after upon a Bill of Exchange The Defendant pleads non Assumpsit infra sex annos urged that as this promise is laid he ought to have pleaded that the cause of Action did not accrue within six years Sympson Non Assumpsit infra sex annos relates to the time of payment as well as to the promise Hales That cannot be Twisden If I promise to do a thing upon request and the promise were made seven years ago and the request yesterday I cannot plead the Statute but if the request were six years ago it must be pleaded specially viz. that causa actionis was above six years since Bradcat Tower AN Action was brought upon a Charter-party And
out of it The Stat. de donis conditionalibus brought in a new Estate of Inheritance by way of entail now this Estate Tail in Gavelkind Lands hath been taken to descend to all the Brothers and the reason is because it is part of the Fee-simple though created de novo so Vses follow the nature of the Land The cases that have béen cited were not the Opinion of the Court but of them that argued Lamb. 47. saith that the Custom extends to Advowsons Commons Rent-charges as well as to Land It is objected that here must be a prescription I answer Gavel-kind Law is the Law of Kent and is never pleaded but presumed 7 Edw. 3. 38. Co. Litt. 175. 2 Edw. 4. 18. Co. Litt. 140. saith the Customs of Kent are of common right and if so then our Rent-charge will go of common right to all the Brothers Hales Rainsford and Wyld were of Opinion that the Rent ought to descend to all the Brothers according to the descent of the Land because the Rent is part of the profits of the Land and issues out of the Land and they gave Iudgment accordingly A man covenanted to stand seized to the use of the Heirs of his body Hales The Heir and the Ancestor are correlates and as one thing in the eye of the Law and that is the reason why a man shall not make his right Heir a Purchasor without putting the whole feé-simple out of himself If the Fathers Estate turns to an Estate for life there will be no question In the case of Bennet Mitford there did result an Estate for life to knit the Limitation to the original Estate Here 1. We are in the case of an Estate Tail and the Iudges use to go far in making such a Limitation good then 2. We are in the case of an Vse which is construed as favourably as may be to comply with the intention of the party This case is not as if he should have covenanted to stand seized to the use of the Heirs of the body of J. D. there the Covenantor would have had a Fee-simple in the mean time but the case is all one as if the Limitation had been to himself and the Heirs of his own body Vide the Earl of Bedford's case Twisden We must make it good if we can Cur ' advisare vult Austin Lippencott A Special Verdict Francis the Father was Tenant for life the Remainder in Fée to Francis the Son and by the Deed by which this Estate was thus settled 100 l. a year was appointed to be paid to Francis the Son during the Fathers life The Son releaseth to the Father all arrears of Rent Annuities Titles and Demands by virtue of that Indenture and the question was whether this Release passed the Inheritance as well as the Annuity Polynxfen I conceive this Release shall not pass any Estate in the Land and my reason is because there is no mention of the Land nor of any Estate therein The principal thing intended and expressed is the Annuity then the Release concludes to the day of the Release which doth manifest that he did not intend to Release any thing that was not to come to him till after the death of his Father It is true here is the word demand but that will not do it 3 Cro. 258. Then for the word Titles by Plowd 494. and 8 Rep. 153. it is where a man hath lawful cause to have that that another doth possess sometimes it is taken in a larger sense and then it doth include right Vpon construction of this Release I think it ought to be taken in the stricter sense and the intention of the party must guide the construction For where there are general words in the beginning and particular words afterwards the particular do restrain the general and so vice versa for enlargement he cited Hen Hanson's case 15 Car. 2. in this Court where a Release of all demands would not Release a Rent-charge by the Opinion of thrée Iudges against Twisden for that reason and because words in Deeds are to be taken according to common acceptation he cited 2 Rolls 409. In our case the general words of all Suits and Titles are limited and restrained to the Annuity and Title of that and shall not by a large construction be extended to any thing else Hales How hath the Inheritance gone Polynxfen The Grandchild has that Hales I think a Release of all demands will not extinguish a Rent but if it were all demands out of Land it were another thing It hath béen held over and over again that it does not extinguish and discharge a Covenant not broken But what say you to this Release of all Titles for it appears in express terms that the Son did not only release the arrears of the Annuity but the thing it self and not only so but all other Titles by virtue of that Deed suppose the case had been but thus the Father is Tenant for life the Remainder to the Son for Life the Son releaseth to his Father all the Title that he has by vertue of that Deed had not this passed the Sons Estate for life In the cases that you have cited it is allowed that a Release of all Titles will pass a right to Land He had a Title to the Annuity and a title to the Remainder now he releaseth the Annuity and all other Titles which he hath by that Deed or otherwise howsoever To hear Serjeant Maynard on the other side Wilson Robinson A Man deviseth all his Tenant-right Estate at Brickend and all that my Father and I took of Rowland Hobbs c. Levings I conceive that these words pass only an Estate for life for it is not mentioned what Estate he hath 1 Cro. 447 449. a Devise of all the rest of his Goods Chattels Leases Estates Mortgages Debts ready money c. and the Court held that no Fee passed and said it was a doubt whether any Estate would pass in that case but what was for years being coupled only with personal things Trin. 1649. Rot. 153. Jerman Johnson One devised all his Estate paying his Debts and Legacies now his personal Estate came but to 20 l. and his Debts were 100 l. there indeed all his real Estate passed because of the payment of his Debts And in our case the following particulars are but a description of the Land and contain no limitation of the Estate If a man deviseth black Acre to one and the Heirs of his body and also deviseth white Acre to the same person he hath but an Estate for life in white Acre though he hath a Fee-simple in the other for the word also is not so strong as if it had been in the same manner Moor 152. Yel 209. Weston contra I conceive an Estate of Inheritance doth pass for the word Estate comprehendeth all his Interest When a man deviseth all his Estate he leaves nothing in himself in that case
proof upon them that claim liberam piscariam But in case of a River that flows and re-flows and is an Arm of the Sea there prima facie it is common to all and if any will appropriate a priviledge to himself the proof lyeth on his side for in case of an Action of Trespass brought for Fishing there it is prima facie a good justification to say that the locus in quo is brachium maris in quo unusquisque subjectus Domini Regis habet habere debet liberam piscariam In the Severne there are particular restraints as Gurgites c. but the Soil doth belong to the Lords on either side and a special sort of Fishing belongs to them likewise but the common sort of Fishing is common to all The Soil of the River of Thames is in the King and the Lord Mayor is Conservator of the River and it is common to all Fisher-men and therefore there is no such contradiction betwixt the Soil being in one and yet the River common for all Fishers c. Sedgewick Gofton HAles said That a Writ of Error in Parliament may be retorned ad prox Parliament such a day but if a particular day be not mentioned then it is naught and although there be a particular day expressed yet if that day be at two or thrée Terms distance the Court will adjudge it to be for delay and it shall be no Supersedeas And he said he had looked into the Books upon the point In the Register he said there is a Scire fac ad prox Parliament but not a Writ of Error Term. Pasch 26 Car. II. 1674. in B. R. Fountain Coke A Trial at Bar. Hales An Executor may be a witness in a cause concerning the Estate if he have not the Surplusage given him by the Will and so I have known it adjudged If a Lessee for years be made Tenant to the Praecipe for suffering a common Recovery that doth not extinguish his term because it was in him for another purpose which the whole Court agreed Jacob Aboab DEbt upon a Bond was brought against him by the name of Jacob and he pleaded that he was called and known by the name of Jaacob and not Jacob but it was over-ruled Sir John Thorowgood's Case IT was moved to quash an Indictment because it ran in detrimentum omnium inhabitantium c. Rolls 2 part 83. Wyld I have known it ruled naught for that cause So quashed Benson versus Hodson A Writ of Error of a Iudgment in the County Palatine of Lancaster in Replevin The Defendant makes Conusance as Bayliff to Ann Mosely The Lands were the Lands of Rowland Mosely and he covenanted to levy a Fine of them to the use of himself and the Heirs males of his body the remainder in Tail to several others the remainder to his own right Heirs Provided that if there shall be a failer of Issue Male of his body and Dame Elizabeth be dead and Ann Mosely be married or of the age of 21 years then she shall have 200 l. per annum for ten years Then Rowland dies leaving Issue Sir Edward Mosely Sir Edward makes a Lease for 1000 years then levies a Fine and suffers a Recovery Then dies without Issue Male And the Contingents did all happen The question is whether this Rent-charge of 200 l. per annum be barred by the Fine and Recovery and shall not operate upon the Lease Levings I conceive the Fine is not well pleaded for nothing is said of the Kings Silver and if that be not paid it is void Then they have pleaded a Common Recovery but not the Execution of it by Entry Now I conceive the Common Recovery doth destroy the Estate Tail but not the Rent The reason why a common Recovery is a Bar is because of the intended recompence Now that is a fictitious thing 9 Rep. Beamonts case 1 Cro. Stone and Newman Cuppledicks case Now this Rent is a meer possibility and hath no relation to the Estate of the Land Then again when the Recovery was suffered the Rent was not in being Now a Recovery will never bar but where the Estate is dependant upon it either in Reversion or Remainder For that case of Moor pl. 201. I conceive he is barred because the Reversion is barred by the Fine 3 Cro. 727. 792. White and Gerishe's case the same case 2 And. 190. Noy p. 9. Another reason is because the Rent remains in the same plight notwithstanding the Fine Another reason is it was a meer possibility at the time of the Fine and Recovery Pell and Brownes case is for me In our case is no Estate in esse to be barred Then this Estate is granted out of the Estate of the Feoffeés As in Whitlocks case 8 Rep. 71. the Estates for years which there is a power to make shall be said to precede all the Limitations There is no other way for securing younger Childrens Portions by the same Deéd but it may be done by another Déed as in Goodyer and Clarkes case Mr. Finch contra I conceive the Rent is barred upon the reason of Capells case They say not 1 Because it doth only charge the Remainder 2 The intended recompence doth not go to it 3 This Lease for 1000 years doth precede the Fine The Law will never invert the operation of a Conveyance but ut res magis valeat Bredon's case Then for the intended recompence that cannot be the reason of barring a Remainder for the Estate Tail was barred before 3 Leon. 157. But Moor fol. 73. saith it is the favour the Law hath for Recoveries And till the Reversion takes place in possession the Rent cannot arise out of the Reversion nor so long as this Lease is in being Hales You make two great points 1 Whether the Rent be barred by the Common Recovery 2 Whether the Rent-charge shall arise out of the Lease for years This is plain if Tenant in Tail grant a Rent-charge and suffer a Common Recovery the Rent-charge will not be avoided So that if Tenant in Tail grant a Rent a Recovery will not bar that though it doth a Reversion but the reason of these cases is because the Estate of him that suffers the Recovery is charged with the Rent Therefore if there be a Limitation of a Vse upon Condition and Cestui que use suffers a Recovery that will not destroy the Condition the Estate being charged with it for the Recoveror can have the Estate only as he that suffered the Recovery had it And therefore there is an Act of Parliament to enable Recoverors to distrein without Attornment Therefore so long as any one comes in by that Recovery he comes in in continuance of the Estate Tail and coming in so he is lyable to all the charges of Tenant in Tail Now what is the reason why Tenant in Tail suffering a Common Recovery a Rent by him in Remainder shall be barred The reason is because the Recoveror comes in
not Repair but if you will discharge your self you must do it by prescription or ratione tenurae and say that such an one ratione tenurae or such part of the Parish hath always used time out of mind c. Anonymus AN Action of Debt upon a Bond the Condition Whereas one Bardue did give by his Will so much if he should pay it such a day c. The Defendant pleads bene verum est he did give him so much by his Will and Testament but he revoked that and made another last Will. The Court said he was estopped to plead so Hales It doth not appear when the Bond was made and it shall be intended to be made after the parties death Iudgment pro Querente Deereing versus Farrington AN Action of Covenant declaring upon a Deed by which the Defendant assignavit transposuit all the money that should be allowed by any Order of a Forreign State to come to him in lieu of his share in a Ship Tompson moved that an Action of Covenant would not lye for it was neither an express nor implied Covenant 1 Leon. 179. Hales You should rather have applyed your self to this viz. whether it would not be a good Covenant against the party as If a man doth demise that is an implied Covenant but if there be a particular express Covenant that he shall quietly enjoy against all claiming under him that restrains the general implyed Covenant But it is a good Covenant against the party himself If I will make a Lease for years reserving Rent to a Stranger an Action of Covenant will lye by the party for to pay the Rent to the Stranger Then it was said it was an Assignment for maintenance Hales That ought to have been averred Then it was further said that an Assignment transferring when it cannot transfer signifies nothing Hales But it is a Covenant and then it is all one as if he had covenanted that he should have all the money that he should recover for his loss in such a Ship Twisd seemed to doubt But Iudgment Lord Mordant versus Earl of Peterborough TRial at Bar the question was Whether the Earl of Peterborough was Tenant for life only of the Mannor of Mayden The Defendant did not appear the Plaintiff thereupon desired to examine his Witnesses that so he might preserve their Evidence Twisd When they do not appear what good will that do you for they will say you set up a man of straw and pull him down again There was a former Deed of entail with a power of revocation in it and after the Deed exhibited was made whereby the Estate was otherwise settled and there was a Ioynture to the present Lady and done by persons of great Learning in the Law The Revocation was to be by Deed under my Lords Hand and Seal in the presence of thrée Witnesses Now the question was whether this second Deed was a revocation in Law and an Execution of that power And the Court told the Counsel they should find it specially if they would but they refused Hales In 16 Car. Snape and Sturts case If there be a power of revocation and a Lease for years is made it doth suspend quoad the term but after it is good Then it hath been questioned formerly if there be such a power and the person makes a Lease and Release whether it was a Revocation But shall we conceive the learned Counsel in this case would have ventured upon an implicit revocation and not have made an express revocation So that you must be non-suit or find it specially But the issue being If he wee only Tenant for life he said he must go back to the Chancery to amend it for by the Deéd produced he hath an Estate for life and the Reversion in Fee Burgis versus Burgis In Chancery A Man having a long Lease settled it in Trust upon himself for life the Remainder to his Wife for life the Remainder to the first Son of their two bodies the Remainder to the second Son and so to the tenth Son And if they should have no Son or Sons then the Remainder to such Daughter and Daughters of their bodies c. The man and his wife died and left only a Daughter who preferred her Bill against the Trustees for the executing of this Remainder to her The question is whether this Remainder be a good Remainder or whether it be void And the Lord Keeper Finch held it was a void Remainder because it doth depend upon so many and such remote Contingencies for otherwise it would be a perpetuity And he said he would allow one Contingency to be good viz. that to the first Son though the first Son was not in esse at the time of his decease And he said he did deny my Lord Cokes Opinion in Leon. Lovells case which saith that in case of a Lease settled to one and the heirs males of his body when he dies the Estate is determined for he said it shall go to his Executors And he said there was the same case with this in this Court Backhurst versus Bellingham And he said that the Common Law did complain that this Court did encroach upon them whereas they are beholding to this Court for their rules in Equity as Formerly when Ecclesiastical persons made Leases a misnosmer would avoid them but Elsmere in his time would notwithstanding the misnosmer make them good And he cited a case in Dyer and Matthew Mannings case Leon. Lovell and Lampetts case and Child and Bailies case Another case in Chancery One mortgaged Lands then confest a Iudgment and died The Mortgagée buys of the heir the Equity of Redemption for 200 l. The Bill was preferred by the Creditor by Iudgment against the Mortgagée and Heir either to be let in by paying the Mortgage money or else that the 200 l. received by the heir might be Assets And the Court said that the Mortgagees Estate should not be stirred But it was left by my Lord to be made a case whether the two hundred pounds should be Assets in the hands of the heir Mosedell the Marshal of the K. B's Case A Trial at Bar An Action of Debt brought against Mosedell for the escape of one Reynolds The Plaintiff said he could prove that he was at London three long Vacations Twisd It is hard to put three Escapes upon the Marshal for he may be provided only for one and he cannot give in Evidence a Fresh pursuit but it must be pleaded Hales I always let them give in evidence a Fresh suit upon a Nil debet And Wild said it was generally done So they gave evidence of an Habeas corp ad test ' and that the Prisoner went down too long before-hand and stayed too long after the Assizes were done at Wells in Somerset-shire and that he went back threescore miles beyond Wells before he retorned again for London Hales If an Habeas Corpus be granted to bring a person into
upon that reason the words themselves prove the contrary for the difference taken by all these books is between the buying and contract of the wife without the knowledge or consent of her husband and a buying or contract had by the wife with allowance or command of the husband In the first case the buying or contract is void in the other the allowance or command makes it good as the contract or bargain of the husband Besides weigh the inconveniencies which would follow if the Law were otherwise Iudges in their Iudgments ought to have a great regard to the generality of the cases of the Kings Subjects and to the inconveniencies which may ensue thereon by the one way or the other 1 Rep. 52. Altenwoods case Iudges in giving their resolutions in cases depending before them are to judge of inconveniencies as things illegal and an argument ab Inconventi is very strong to prove that it is against Law Plo. Com. 279. 379. then examine the inconveniencies which must ensue if the Law were according to my Brother Twisdens and Tyrrells Opinions If the contract or bargain of the wife made without the allowance or consent of the husband shall bind him upon pretence of necessary Apparel it will be in the power of the wife who by the Law of God and of the Land is put under the power of the husband and is bound to live in subjection unto him to rule over her husband and undo him maugre his head and it shall not be in the power of the husband to prevent it The wife shall be her own Carver and judge of the fitness of her Apparel of the time when 't is necessary for her to have new Cloathes and as often as she pleaseth without asking the advice or allowance of her husband And is such power suitable to the Iudgment of Almighty God inflicted upon woman for being first in the Transgression Thy desire shall be to thy husband and he shall rule over thee Will wives depend on the kindness and favours of their husbands or be observant towards them as they ought to be if such a power be put into their hands Secondly Admit that in truth the wife wants necessary Apparel Woollen and Lining thereupon she goes into Pater-Noster-Row to a Mercer and takes up Stuff and makes a contract for necessary Clothes thence goes up into Cheapside and takes up Lining there in like manner and also goes into a third Street and fits her self with Ribbonds and other necessaries suitable to her occasions and her husbands degree This done she goes away disposeth of the Commodities to furnish her self with money to go abroad to Hide-Park to score at Gleeke or the like Next morning this good woman goes abroad into some other part of London makes her necessity and want of Apparel known and takes more Wares upon trust as she had done the day before after the same manner she goes to a third and fourth place and makes new Contracts for fresh Wares none of these Tradesmen knowing or imagining she was formerly furnished by the other and each of them seeing and believing her to have great need of the Commodities sold her shall not the husband be chargeable and lyable to pay every one of these if the contract of the Wife doth bind him Certainly every one of these hath as just cause to sue the husband as the other and he is as lyable to the Action of the last as the first or second if the wives contract shall bind him and where this will end no man can divine or foresee As for my Brother Tyrrells saying we may not alter the Law because an inconvenience may follow thereon that is true but we ought to foresée and provide against such inconveniencies as may arise before we adjudge or declare the Law in a particular case in question whether the Law be so or not And that is the case here It is objected that the husband is bound of common right to provide for and maintain his wife and the Law having disabled the wife to bind her self by her contract therefore the burden shall rest upon the husband who by Law is bound to maintain her and he shall do it nolens volens generally the antecedent is most true for she is bone of his bone flesh of his flesh and no man did ever hate his own flesh so far as not to preserve it But apply this general proposition to our particular case and then see what Logick there is in the argument I am bound to maintain and provide for my wife therefore my wife departing from me against my will shall be her own Carver and take up what Apparel she pleaseth upon trust without my privity or allowance and I shall be bound to pay for it this is our case for there is not a word throughout the whole Verdict that the wife did want necessary Apparel that she ever acquainted her husband with any such matter that she ever desired the husband to supply her with money to buy it or otherwise to provide for her or that the husband did deny refuse or neglect to do it Besides although it be true that the husband is bound to maintain his wife yet that is with this limitation viz. so long as she keeps the station wherein the Law hath plac'd her so long as she continues a help meet unto him for if a woman of her own head without the allowance or Iudgment of the Church which hath united them in the holy State of Matrimony which only can separate that or dissolve this Vnion depart from her husband against his will be the pretence what it will she doth thereby put her self out of the husbands protection so that during this unlawful separation she is no part of her husbands care charge or family The King is the Head of the Common-wealth his Office is and he is bound of right to protect and preserve his Subjects in their Persons Goods and Estates And on that ground every Loyal Subject is said to be within the Kings Protection Plo. 315. Case of Mynes F. N. Br. 232. But a man may put himself out of the Kings Protection by his Offence as by forsaking his Allegiance to the King and owning or setting up any Forreign Iurisdiction and then every man may do unto him as to the Kings Enemy and he shall have no remedy or Recovery by the Kings Laws or Writs 27 E. 3. case the first The husband is head of the wife as fully as the King is Head of the Common-wealth and the wife by the Law is put sub potestate viri and under his protection although he hath not potestatem vitae necis over her as the King hath over his Subjects When the wife departs from her husband against his will she forsakes and deserts his Government she erects and sets up a new Iurisdiction and assumes to govern her self besides at least if not against the Law of God and of the Land
man be accursed barred of the Company or Society of Christians cut off from the body of Christ accounted as a Heathen and Publican for not allowing maintenance to his wife when the Church enjoyns him so to do and shall not this be accounted a sufficient remedy for the wife I fear it is the want of Religion and due credence to the Censures of the Church which occasions this Objection rather then real want of sufficient remedy in Law for her relief The last matter to be answered is rather the Opinion of my Brother Twisden and Tyrrell in their arguments then an Objection in this case namely if an Action upon the case doth not lye against the husband upon the Contract of the wife for necessary Apparel yet an Action of Trover and Conversion doth lye against him for the Stuff and so one way or other the husband must pay the reckoning If the Law should be so it were a Conversion with a witness for then the husband should seem to be sub potestate foeminae he might glory in the words of St. Paul I would have you know that the head of the woman is the man But if the wife shall set his cap or lay his headship in the Gaol it shall not be in the power of the husband to prevent or avoid it one kind of Divorce between husband and wife is when Action of Trespass is brought against them and the husband only appears and Process issue out against the wife until she be waived and outlawed she can never purchase her pardon or reverse the outlawry unless the husband will appear so that if the husband please he is divorced 14 H. 6. 14. a. If the wife be outlawed by erronious Process and the husband will not bring a Writ of Error he may by this way be rid of a Shrew and that doth countervail a Divorce 18 E. 4. 4. a. By these books it appears that the Law puts a power in the husband to be rid of his wife and provides a remedy to tame a Shrew but I never heard before that the Law hath left it in the power of the wife to do so by her husband and I do not remember that my Brothers did vouch any Authority or give any reason for maintenance of their Opinions and therefore I may with freedom deny the Law to be as they have said besides the nature of an Action of Trover proves that it lies not in this case The count is that the Plaintiff was possessed of such Goods and names them as of his own proper Goods and casually left them that the Goods came to the Defendants hands by finding yet he knowing them to belong to the Plaintiff refuseth to deliver them to him but hath converted them to his own use so that an Action is grounded upon a wrong supposed to be done by the Defendant in converting the Goods of the Plaintiff knowingly to his own use against the will of the Plaintiff and that is the reason why the Plaintiff in that Action must prove a demand of the Goods and an actual Conversion by the Defendant or else he fails in the Action In an Action of the Case for that the Defendant did find the Goods of the Plaintiff and delivered them to persons unknown Non deliberavit modo forma is no Plea without saying Not-guilty where the thing rests in Feasance and if the Action be that the Plaintiff was possessed Ut de bonis propriis and the Defendant did find and convert them to his own use It is no plea that the Plaintiff was not possessed Ut de bonis propriis but he must plead Not-guilty to the misdemeanour and give the other matter in Evidence 33 H. 8. Mar. Bro. Action sur le case In Trover the Plaintiff declares that he was possessed of such Goods and casually left them and the Defendant found them and converted them to his own use the Defendant did plead that the Plaintiff did gage the Goods unto him for 10 l. and that he detained the Goods for 10 l. this is no Plea but he ought to plead Not-guilty and give this matter in Evidence for the Action doth suppose a wrong which the Defendant ought to answer 4 E. 6. Action sur le case 113. What wrong is done to the Plaintiff in our case when he himself sells and delivers the Goods It is not like the case where two men by mutual consent Wrastle or play at Football together will an Action of Assault and Battery lye for the one against the other when the act is done by their mutual agreement before hand Put the case of Sale made to a man upon credit and the Vendee promiseth to pay for the Goods at Michaelmas but fails to pay the money accordingly shall the Salesman have Trover against the Vendee because he pays not the money at the day and will the Sale to this Feme Covert alter the case or the Law as to the Action its true that for a Conversion by the woman before Coverture or by the wife during the Coverture an Action of Trover lies against the husband and wife but that is for a Conversion by wrong when she takes the Goods and converts them against the will of the owner 1 Cro. 10. 254. Remis Humfrey's case as in case where a man comes to buy Goods and offers 10 l. for them and the owner agreés to accept the money whereupon the buyer takes the Goods away without payment or delivery by the owner there an Action of Trespass or Trover lies notwithstanding the bargain 21 H. 7. 6. otherwise it is if they agree upon a price and the Vendor takes the Vendee's word for payment and delivers the Goods unto him there the Vendor is put to his Action for the money upon the Contract and shall not bring Trover for the Goods 14 H. 8. 22. If an Infant give or sells Goods and delivers them with his own hand he shall have no Action of Trespass against the Donee or Vendee by reason of the delivery 21 H. 7. 39. 26 H. 8. 2. but if an Infant give or sell Goods and the Vendee or Donee takes them by force of the gift or sale the Infant may have an Action of Trespass against him So in our case If a Feme Covert takes Wares of a Shop-keeper against his will upon pretence of buying them an Action lies against the husband but if the owner sell the Goods to the wife upon trust and delivers the Goods unto her he shall not have an Action of Trespass against the husband by reason of this delivery If a man take my wife and cloath her this amounts unto a gift of the Apparel unto her 11 H. 4. 83. and I may take my wife with the Apparel and no Action lies against me by the same reason when a man delivers Stuff or other Wares to my wife knowing her to be a Femé Covert to make Apparel without my privity or allowance this shall be
the case for Wares sold unto him and ought to have declared specially according to the truth of his case for Wares sold to his wife for necessary Apparel In an Action of Battery against the Husband and Wife the Plaintiff counted that they both did Assault and beat him Vpon Not-guilty pleaded the Iury found that the Wife alone did make the Assault and not the Husband Yel 106. Darcy Deniers case and the Verdict was against the Plaintiff because now the Plaintiffs Action appeared to be false for the Husband ought not to be joined but for Conformity and there is a special Action for the Plaintiff in that case so this Verdict is against the case because it appears that the Action brought by him is false and that he ought to have brought another Action upon the special matter of his case if any such by Law lye for him Secondly The Iury find that the Defendants wife departed from him against his will and lived from him and that the Defendant before the Wares were sold to his wife did forbid the Plaintiff to trust his wife with any Wares And that the Plaintiff contrary to his Prohibition did sell and deliver those Wares to the wife upon credit and I conceive that this Prohibition doth so far bar or bind the Plaintiff that he shall never have any Action against the Defendant for Wares sold and delivered to his wife after he was prohibited by the husband It is agreéd by all that a Feme Covert cannot generally make any Contract which shall charge or discharge her husband without the authority or consent of the husband precedent or subsequent so that the authority or consent of the husband is the foundation or ground which makes the contract good against him but when the husband forbids a particular person to trust his wife this Prohibition is an absolute Revocation or Countermand as to the person of the general authority which the wife had before and puts him in the same plight as if the wife had never any authority given her It is said by my Brother Twisden and Tyrrell that the Prohibition of the husband is void for says Tyrrell the husband is bound to maintain his wife notwithstanding her departure from him and therefore he cannot prohibit others to do it And Twisden says it is a right vested in her by the Law and therefore the Prohibition of the husband shall not devest or take it away from her I have already answered and disproved these reasons on which they ground their Opinions and will not repeat them here again but admit that the husband were by Law bound to maintain his wife notwithstanding her departure from him against his will and that the Law doth give her or vest a right in the wife to bind or charge the husband by her Contract for necessary Apparel will this be a good consequence thereupon Therefore the husband cannot forbid this or that particular person to trust his wife A man makes a Feoffment in Fée upon condition that the Feoffee shall not Alien this Condition is void Litt. Sect. 360. Were it not a strange conclusion to say thereupon If a man maks a Feoffment in Fée upon Condition that the Feoffee shall not Alien to J. S. that this Condition is likewise void The reason given by Littleton why the Condition is void in the former and not in the later part of this second case is applicable to our case namely the Condition in the first case ousts the Feoffee of all the power which the Law gives unto him which should be against reason and therefore the same is void but in the latter case the Condition doth not take away all the power of Aliening from the Feoffee and therefore it is good so in our case if the Prohibition were so general that the wife were thereby disabled altogether to Cloath her self peradventeur it might be reasonable to say that the Prohibition was void but it being a restriction only to one particular person there is no colour to say that it is not good 'T is true as my Brother Tyrrell says that I cannot discharge others to deal with my wife although I may forbid my wife to deal with them but it follows not thereupon but that my Prohibition to a particular person doth make his dealing with or trusting my wife to be at his own peril so that he shall not charge me thereby in an Action as in case of a Servant who buys Provision for my Houshold by my allowance If I forbid a Butcher or other Victualler to sell to my Servant without ready money and he delivers meat to my Servant afterwards upon trust it is at his peril he shall have no Action against me for it It appears not by this Declaration or Verdict that the Defendants Wife did want Apparel that she ever desired her husband to supply her therewith that he refused to allow her what was fit that the Wares sold to her by the Plaintiff were for necessary Apparel or of what nature or price the Wares were so that the Court may Iudge of the necessity or fitness thereof but only that the Plaintiff did sell and deliver upon credit divers of the Wares mentioned in the Declaration unto the wife whereas none are mentioned therein for 43 l. that this was a reasonable price for these Wares and the same Wares were necessary for her and suitable to the degree of her husband and for these reasons the Defendant ought to have Iudgment in this particular case against the Plaintiff be the Law what it will in general I will conclude all as the seven Princes of Persia who knew Law and Iudgments did in the case of Queen Vasthi Esther 1 Ca. This Deed that this woman hath done in departing from her husband against his will and taking of Clothes upon trust contrary to his Prohibition shall come abroad to all women and if it shall be repeated that her husband by the Opinion of the Judges must pay for the Wares which she so took up whilst she lived from him then shall their husbands be despised in their Eyes But when it shall be known throughout the Realm that the Law doth not charge the husband in this case all the Wives shall give to their Husbands honour both great and small Iudgment for the Defendant Tyrrell Twisden and Mallett dissenting Term. Trin. 29 Car. II. 1677. in B. R. The Earl of Shaftsbury's Case HE was brought to the Bar upon the Retorn of an Habeas Corpus directed to the Constable of the Tower of London The effect of the Retorn was that Anthony Earl of Shaftesbury in the Writ mentioned was committed to the Tower of London 16 Feb. 1676. by virtue of an Order of the Lords Spiritual and Temporal in Parliament assembled The tenour of which Order followeth in these words Ordered by the Lords Spiritual and Temporal in Parliament assembled That the Constable of His Majesties Tower of London his Deputy or Deputies shall
pleasure of the Lords no doubt that would have been an illegal Commitment against Magna Charta and the Petition of Right There the Commitment had been expresly illegal and it may be this Commitment is no less For if it had been expresly shewn and he be remanded he is committed by this Court who are to answer for his Imprisonment But secondly The duration of the Imprisonment during the pleasure of the King and of the House is illegal and uncertain for since it ought to determine in two Courts it can have no certain period A Commitment until he shall be discharged by the Courts of Kings-Bench and Common-Pleas is illegal for the Prisoner cannot apply himself in such manner as to obtain a discharge If a man be committed till further Order he is bailable presently for that imports till he shall be delivered by due course of Law and if this Commitment have not that sense it is illegal for the pleasure of the King is that which shall be determined according to Law in his Courts as where the Statute of Westm ' 1. cap. 15. declares that he is not replevisable who is taken by command of the King it ought to extend to an extrajudicial command not in his Courts of Iustice to which all matters of Iudicature are delegated and distributed 2 Inst 186 187. Wallop to the same purpose he cited Bushells case Vaughan's Rep. 137. that the general Retorn for high Contempts was not sufficient and the Court that made the Commitment in this case makes no difference for otherwise one may be imprisoned by the House of Peers unjustly for a matter relievable here and yet shall be out of all relief by such a Retorn for upon a supposition that this Court ought not to meddle where the person is committed by the Peers then any person at any time and for any cause is to be subject to perpetual Imprisonment at the pleasure of the Lords But the Law is otherwise for the House of Lords is the supream Court yet their Iurisdiction is limited by the Common and Statute Law and their excesses are examinable in this Court for there is great difference betwéen the errors and excesses of a Court betwéen an erroneous proceéding and a proceeding without Iurisdiction which is void and a meer nullity 4 H. 7. 18. In the Parliament the King would have one Attaint of Treason and lose his Lands and the Lords assented but nothing was said of the Commons wherefore all the Iustices held that it was no Act and he was restored to his Land and without doubt in the same case if the party had been imprisoned the Iustices must have made the like resolution that he ought to have been discharged It is a Sollecism that a man shall be imprisoned by a limited Iurisdiction and it shall not be examinable whether the cause were within their Iurisdiction or no. If the Lords without the Commons should grant a Tax and one that refused to pay it should be imprisoned the Tax is void but by a general Commitment the party shall be remediless So if the Lords shall award a Capias for Treason or Felony By these instances it appears that their Iurisdiction was restrained by the Common Law and it is likewise restrained by divers Acts of Parliament 1 H. 4. cap. 14. No Appeals shall be made or any way pursued in Parliament And when a Statute is made a power is implicitely given to this Court by the fundamental constitution which makes the Iudges Expositors of Acts of Parliament And peradventure if all this case appeared upon the Retorn this might be a case in which they were restrained by the Statute 4 H. 8. cap. 8. That all Suits Accusements Condemnations Punishments Corrections c. at any time from henceforth to be put or had upon any Member for any Bill speaking or reasoning of any matters concerning the Parliament to be communed or treated of shall be utterly void and of none effect Now it doth not appear but this is a correction or punishment imposed upon the Earl contrary to the Statute There is no question made now of the power of the Lords but it is only urged that it is necessary for them to declare by virtue of what power they proceed otherwise the Liberty of every Englishman shall be subject to the Lords whereof they may deprive any of them against an Act of Parliament but no usage can justifie such a proceeding Ellismeres case of the Post-nati 19. The Duke of Suffolk was impeached by the Commons of High Treason and Misdemeanors the Lords were in doubt whether they would proceed on such general Impeachment to imprison the Duke And the advice of the Iudges being demanded and their resolutions given in the negative the Lords were satisfied This case is mentioned with design to shew the respect given to the Iudges and that the Iudges have determined the highest matters in Parliament At a conference between the Lords and Commons 3 Aprilis Car. 1. concerning the Rights and Priviledges of the Subject It was declared and agreed that no Freeman ought to be restrained or committed by command of the King or Privy-Council or any other in which the House of Lords are included unless some cause of the Commitment Restraint or Deteynor be set forth for which by Law he ought to be committed c. Now if the King who is the Head of the Parliament or his Privy Council which is the Court of State ought therefore to proceed in a legal manner this solemn resolution ought to end all Debates of this matter It is true 1 Roll 129. in Russells case Coke is of Opinion that the Privy-Council may commit without shewing cause but in his more mature age he was of another Opinion And accordingly the Law is declared in the Petition of Right and no inconvenience will ensue to the Lords by making their Warrants more certain Smith argued to the same purpose and said That a Iudge cannot make a Iudgment unless the Fact appears to him on a Habeas Corpus the Iudge can only take notice of the Fact retorned It is lawful for any Subject that finds himself agrieved by any Sentence or Iudgment to Petition the King in an humble manner for Redress And where the Subject is restrained of his liberty the proper place for him to apply himself to is this Court which hath the supreme power as to this purpose over all other Courts and an Habeas Corpus issuing here the King ought to have an accompt of his Subjects Roll tit Habeas Corp. 69. Wetherlies case And also the Commitment was by the Lords yet if it be illegal this Court is obliged to discharge the Prisoner as well as if he had been illegally imprisoned by any other Court The House of Peers is an high Court but the Kings-Bench hath ever been entrusted with the Liberty of the Subject and if it were otherwise in case of Imprisonment by the Peers the power of the King were
this whole Court in the case of Barnadiston and Soames that the Action for the double Retorn could not be brought in this Court before the Parliament had determined the right of the Election lest there should be a difference between the Iudgments of the two Courts When a Iudgment of the Lords comes into this Court though it be of the reversal of a Iudgment of this Court this Court is obliged to execute it but the Iudgment was never examined or corrected here In the case of my Lord Hollis it was resolved that this Court hath no Iurisdiction of a misdemeanour commited in the Parliament when the Parliament is determined the Iudges are Expositors of the Acts and are intrusted with the lives liberties and fortunes of the Subjects And if the Sessions were determined the Earl might apply himself to this Court for the Subject shall not be without place where he may resort for the recovery of his liberty but this Session is not determined For the most part the Royal Assent is given the last day of Parliament as saith Plow Partridges case Yet the giving of the Royal Assent doth not make it the last day of the Parliament without a subsequent Dissolution or Prorogation And the Court Iudicially takes notice of Prorogations or Adjournments of Parliament Cro. Jac. 111. Ford versus Hunter And by consequence by the last Adjournment no Order is discontinued but remains as if the Parliament were actually assembled Cro. Jac. 342. Sir Charles Heydon's case so that the Earl ought to apply himself to the Lords who are his proper Iudges It ought to be observed that these Attempts are primae Impressionis and though Imprisonments for Contempts have been frequent by the one and the other House till now no person ever sought enlargement here The Court was obliged in Iustice to grant the Habeas Corpus but when the whole matter being disclosed it appears upon the Return that the case belongs ad aliud examen they ought to remand the party As to the limitation of the Imprisonment the King may determine his pleasure by Pardon under the Great Seal or Warrant for his discharge under the Privy Seal as in the case of Reniger Fogassa Plow 20. As to the Exception that no Commitment is returned the Constable can only shew what concerns himself which is the Warrant to him directed and the Writ doth not require him to return any thing else As to the Exception that he is otherwise named in the Commitment then in the Writ the Writ requires the body of Anthony Earl of Shaftesbury quocunque nomine Censeatur in the Commitment The Court delivered their Opinion and first Sir Thomas Jones Justice said such a Retorn made by an ordinary Court of Iustice would have been ill and uncertain but the case is different when it comes from this high Court to which so great respect hath been paid by our Predecessors that they deferred the determination of doubts conceived in an Act of Parliament until they had received the advice of the Lords in Parliament But now instead thereof it is demanded of us to comptroll the Iudgment of all the Peers given on a Member of their own House and during the continuance of the Session The cases where the Courts of Westminster have taken cognizance of Priviledge differ from this case for in those it was only an incident to a case before them which was of their cognizance but the direct point of the matter now is the Iudgment of the Lords The course of all Courts ought to be considered for that is the Law of the Court Lane's case 2 Rep. And it hath not been affirmed that the usage of the House of Lords hath been to express the matter more punctually on Commitments for Contempts And therefore I shall take it to be according to the course of Parliament 4 Inst 50. it is said that the Iudges are Assistants to the Lords to inform them of the Common Law but they ought not to judge of any Law Custom or usage of Parliament The objection as to the continuance of the Imprisonment hath received a plain answer for it shall be determined by the pleasure of the King or of the Lords and if it were otherwise yet the King could pardon the Contempt under the Great Seal or discharge the Imprisonment under the Privy Seal I shall not say what would be the consequence as to this Imprisonment if the Session were determined for that is not the present case but as the case is this Court can neither Bail nor discharge the Earl Wyld Justice The Retorn no doubt is illegal but the question is on a point of Iurisdiction whether it may be examined here this Court cannot intermeddle with the transactions of the high Court of Peers in Parliament during the Session which is not determined and therefore the certainty or uncertainty of the Retorn is not material for it is not examinable here but if the Session had béen determined I should be of Opinion that he ought to be discharged Rainsford Chief Justice This Court hath no Iurisdiction of the cause and therefore the form of the Retorn is not considerable we ought not to extend our Iurisdiction beyond its due limits and the Actions of our Predecessors will not warrant us in such Attempts The consequence would be very mischievous if this Court should deliver the Members of the Houses of Peers and Commons who are committed for thereby the business of the Parliament may be retarded for perhaps the Commitment was for evil behaviour or undecent Reflections on the Members to the disturbance of the affairs of Parliament The Commitment in this case is not for safe custody but he is in Execution on the Iudgment given by the Lords for the Contempt and therefore if he be bailed he will be delivered out of Execution because for a Contempt in facie Curiae there is no other Iudgment or Execution This Court hath no Iurisdiction of the matter and therefore he ought to be remanded And I deliver no Opinion if it would be otherwise in case of Prorogation Twisden Justice was absent but he desired Justice Jones to declare that his Opinion was that the party ought to be remanded And so he was remanded by the Court. Term. Trin. 26 Car. II. 1674. in B. R. Pybus versus Mitford ante 121. THis case having been several times argued at the Bar received Iudgment this Term. The case was Michael Mitford was seised of the Lands in question in Fee and had Issue by his second wife Ralph Mitford and 23. Jan ' 21 Jac. by Indenture made betwéen the said Michael of the one part and Sir Ralph Dalivell and others of the other part he covenanted to stand immediately seised after the date of the said Indenture amongst others of the Lands in question by these words viz. To the use of the Heirs Males of the said Michael Mitford begotten or to be begotten on the body of Jane his wife the
Reversion to his own right Heirs after which Michael dyed leaving Issue Robert his Son and Heir by a first Venter and the said Ralph by Jane his second wife after the death of Michael Robert entred and from Robert by divers Mesne Conveyances a Title was deduced to the Heir of the Plaintiff Ralph had Issue Robert the Defendant And in this special Verdict the question was If any Vse did arise to Ralph by this Indenture 23 Jan ' 21 Jac ' Hales Rainsford and Wyld against the Opinion of Twisden Michael Mitford took an Estate for life by implication and consequence and so had an Estate Tail Hales 1 said it were clear if an Estate for life had been limited to Michael and to the Heirs males of the body of Michael to be begotten on the body of his second wife that had been an Estate Tail 2 Which way soever it be the Estate is lodged in Michael during his life 3 There is a great difference between Estates to be conveyeyed by the rules of the Common Law and Estates conveyed by way of Vse for he may mould the Vse in himself in what estate he will These things being premised he said This Estate being turned by operation of Law into an Estate in Michael is as strong as if he had limited an Estate to himself for life 2 A Limitation to the Heirs of his body is in effect a Limitation to the Vse of himself for his Heirs are included in himself 3 It is perfectly according to the intention of the party which was that his eldest Son should not take but that the Issue of the second wife should take His intent appears to be 1 Object that it should take effect as a future use When a man limits a Vse to commence in futuro Respons and there is such a descendible quality left in him that his Heirs may take in the mean time there it shall operate solely by way of future Vse as if a man Covenant to stand seized to the use of J. S. after the expiration of 40 years or after the death of J. D. there no present alteration of the Estate is made but it is only a future use because the Father or the Ancestor had such an Interest left in him which might descend to his Heir viz. during the years or during the life of J. D. But when no Estate may by reason of the Limitation descend to the Heir until the Contingency happen there the Estate of the Covenantor is moulded to an Estate for life This would be to create an Estate by implication 2 Object We are not here to create an Estate Respons but only to qualifie an Estate which was in the Ancestor before That the old Fee-simple shall be left in him 3 Object Yet the Covenantor had qualified this Estate Respons and converted it into an Estate Tail viz. part of the old Estate That the intention of the parties appears that it should operate by way of future use 4 Object for that of other Lands he covenanted to stand seised to the use of himself and his Heirs of his body It is not the intention of the party that shall comptroll the operation of Law Respons and to the case 1 Inst 22. though it be objected that it was not necessary at the Law to raise an Estate for life by implication yet my Lord Coke hath taken notice what he had said in the case of Parnell and Fenn Roll Rep. 240. if a man make a Feoffment to the use of the Heirs of his body that is an Estate for life in the Feoffor and in Englefields case as it is reported in Moore 303. it is agreed that if a man Covenant to stand seised to an use to commence after his death that the Covenantor thereby is become seised for life As to the second point Twisden Rainsford and Wyld held that no future use would arise to Ralph because he is not heir at Common Law and none can purchase by the name of heir unless he be heir at Common Law But Hales was against them in this point and he held that it Ralph could not take by descent yet he might well take by purchase 1 Because before the St ' de Donis a limitation might be made to this heir and so he was a special heir at Common Law 2 It is apparent that he had taken notice that he had an heir at the Common Law Litt. Sect. 35. 1 Inst 22. So his intent is evident that the heir at the Common Law should not take But on the first point Iudgment was given for the Defendant Term. Mich. 25 Car. II. in Communi Banco Anonymus IF a man be lyable to pay a yearly sum as Treasurer to a Church or the like to a Sub-treasurer or any other and dies the money being in arrear an Action of Assumpsit cannot be maintained against his Executors for these arrears For although according to the resolution in Slade's case 4 Report which Vaughan Chief Iustice said was a strange resolution an Assumpsit or an Action of Debt is maintainable upon a Contract at the parties Election yet where there is no Contract nor any personal privity as in this case there is not an Assumpsit will not lye And in an Action of Debt for these Arrears the Plaintiff must aver that there is so much money in the Treasury as he demands and in this case of an Action against Executors that there was so much at the time of the Testators death c. for the money is due from him as Treasurer and not to be paid out of his own Estate As in an Action against the Kings Receiver the Plaintiff must set forth that he has so much money of the Kings in his Coffers Magdalen Colledge Case INdebitat ' Assumpsit against the President and Scholars of Magdalen Colledge in Oxford for thréescore pounds due for Butter and Cheese sold to the Colledge The Chancellor of the Vniversity demanded Conisance by virtue of Charters of Priviledges granted to the Vniversity by the Kings Progenitors and confirm'd by Act of Parliament whereby amongst other things power is given them to hold plea in personal Actions wherein Scholars or other priviledged persons are concerned and concludes with an express demand of Conisance in this particular cause Baldw. Their priviledge extends not to this case for a Corporation is Defendant and their Charters mention priviledged persons only Their Charters are in derogation of the Common Law and must be taken strictly They make this demand upon Charters confirm'd by Act of Parliament and they have a Charter granted by King Henry 8. which is confirm'd by an Act in the Queens time but the Charter of 11 Car. 1. which is the only Charter that mentions Corporations is not confirm'd by any Act of Parliament and consequently is not material as to this demand For a demand of Conisance is stricti Juris But admitting it material the Kings Patent
cannot deprive us of the benefit of the Common Law and in the Vice-Chancellors Court they proceed by the Civil Law If you allow this demand there will be a failer of Justice for the Defendants being a Corporation cannot be arrested they can make no stipulation the Vice-Chancellors Court cannot issue Distringas's against there Lands nor can they be excommunicated Presidents we find of Corporations suing there as Plaintiffs in which case the afore-mentioned inconvenience does not ensue but none of Actions brought against Corporations Maynard contra Servants to Colledges and Officers of Corporations have been allowed the priviledge of the Vniversity which they could not have in their own right and if in their Masters right a fortiori their Masters shall enjoy it The word persona in the demand will include a Corporation well enough Vaughan Chief Justice Perhaps the words atque confirmat ' c. in the demand of Conisance are not material for the priviledges of the Vniversity are grounded on their Patents which are good in Law whether confirm'd by Parliament or not The word persona does include Corporations 2 Inst 536. per Coke upon the Statute of 31 Eliz. cap. 7. of Cottages and Inmates A demand of Conisance is not in derogation of the Common Law for the King may by Law grant tenere placita though it may fall out to be in derogation of Westminster-Hall Nor will there be a failer of Justice for when a Corporation is Defendant they make them give Bond and put in Stipulators that they will satisfie the Iudgment and if they do not perform the Condition of their Bond they commit their Bail They have enjoyed these priviledges some hundreds of years ago The rest of the Iudges agreed that the Vniversity ought to have Conisance But Atkyns objected against the form of the demand that the word persona privilegiata cannot comprehend a Corporation in a demand of Conisance howsoever the sense may carry it in an Act of Parliament Ellis Wyndham If neither Schollars nor priviledged persons had been mentioned but an express demand made of Conisance in this particular cause it had then been sufficient and then a fault if it be one in Surplusage and a matter that comes in by way of Preface shall not hurt Atkyns It is not a Preface they lay it as the foundation and ground of their claim The demand was allowed as to matter and form Rogers Danvers DEbt against S. Danvers and D. Danvers Executors of G. Danvers upon a Bond of 100 l. entred into by the Testator The Defendants pleaded that G. Danvers the Testator had acknowledged a Recognisance in the nature of a Statute Staple of 1200 l. to J. S. and that they have no assets ultra c. The Plaintiff replied that D. Danvers one of the Defendants was bound together with the Testator in that Statute to which the Defendants demur Baldwin pro Defendente If this plea were not good we might be doubly charged It is true one of us acknowledged the Statute likewise but in this Action we are sued as Executors And this Statute of 1200 l. was joynt and several so that the Conisee may at his Election either sue the surviving Conisor or the Executors of him that is dead so that the Testators Goods that are in our hands are lyable to this Statute It runs concesserunt se utrumque eorum if it were joynt the charge would survive and then it were against us It is common for Executors upon pleinment administer pleaded to give in Evidence payment of Bonds in which themselves were bound with the Testator and sometimes such persons are made Executors for their security The Opinion of the Court was against the Plaintiff whereupon he prayed leave to discontinue and had it Amie Andrews ASsumpsit The Plaintiff declares that whereas the Father of the Defendant was endebted to him in 20 l. for Malt sold and promised to pay it that the Defendant in consideration that the Plaintiff would bring two Witnesses before a Iustice of Peace who upon their Oaths should depose that the Defendants Father was so endebted to the Plaintiff and promised payment assumed and promised to pay the money then avers that he did bring two Witnesses c. who did swear c. The Defendant pleaded non Assumpsit which being found against him he moved by Sergeant Baldwin in Arrest of Iudgment that the consideration was not lawful because a Iustice of Peace not having power to administer an Oath in this case it is an extrajudicial Oath and consequently unlawful And Vaughan was of Opinion that every Oath not legally administred and taken is within the Statute against prophane swearing And he said it would be of dangerous consequence to countenance these extrajudicial Oaths for that it would tend to the overthrowing of Legal proofs Wyndham Atkins thought it was not a prophane Oath nor within the Statute of King James because it tended to the determining of a controversie And accordingly the Plaintiff had Iudgment Horton Wilson A Prohibition was prayed to stay a Suit in the Spiritual Court commenced by a Proctor for his Fees Vaughan Wyndham No Court can better judge of the Fees that have been due and usual there then themselves Most of their Fees are appointed by constitutions Provincial and they prove them by them A Proctor lately libell'd in the Spiritual Court for his Fees and amongst other things demanded a groat for every Instrument that had been read in the cause the Client pretended that he ought to have but 4 d. for all They gave Sentence for the Defendant the Plaintiff appealed and then a Prohibition was prayed in the Court of Kings Bench. The Opinion of the Court was that the Libell for his Fees was most proper for the Spiritual Court but that because the Plaintiff there demanded a customary Fee that it ought to be determin'd by Law whether such a Fee were customary or no and accordingly they granted a Prohibition in that case It is like the case of a modus for Tythes for whatever ariseth out of the custom of the Kingdom is properly determinable at Common Law But in this case they were of Opinion that the Spiritual Court ought not to be prohibited and therefore granted a Prohibition quoad some other particulars in the Libell which were of temporal cognisance but not as to the suit for Fees Wyndham said if there had been an actual Contract upon the Retainer the Plaintiff ought to have sued at Law Atkyns thought a Prohibition ought to go for the whole Fées he said had no relation to the Iurisdiction of the Spiritual Court nor to the cause in which the Proctor was retain'd No Suit ought to be suffered in the Spiritual Court when the Plaintiff has a remedy at Law as here he might in an Action upon the case for the Retainer is an implied Contract A difference about the grant of the Office of Register in a Bishops Court shall be
tried at Common Law though the Subjectum circa quod be Spiritual 2 Rolls 285. placito 45. 2 Rolls 283. Wadworth Andrewes Shall a six-Clark prefer a Bill in Equity for his Fees But a Prohibition was granted quoad c. Glever versus Hynde alios GLever brought an Action of Trespass of Assault and Battery against Elizabeth Hynde and six others for that they at York-Castle in the County of York him the said Plaintiff with force and arms did Assault beat and evil entreat to his damage of 100 l. The Defendants plead to the Vi armis not-guilty to the Assault beating and evil entreating they say that at such a place in the County of Lancaster one _____ Jackson a Curate was performing the Rites and Funeral obsequies according to the usage of the Church of England over the body of _____ there lying dead and ready to be buried and that then and there the Plaintiff did maliciously disturb him that they the Defendants required him to desist and because he would not that they to remove him and for the preventing of further disturbance molliter ei manus imposuerunt c. quae est eadem transgressio absque hoc that they were guilty of any Assault c. within the County of York or any where else extra Comitatum Lancastriae The Plaintiff demurs Turner pro Querente The Defendants do not show that they had any Authority to lay hands on the Plaintiff as that they were Constables Church-wardens or any Officers nor do they justifie by the Authority of any that were If they had pleaded that they laid hands on him to carry him before a Iustice of Peace perhaps it might have alter'd the case The Plaintiff here if he be faulty is lyable to Ecclesiastical Censure and the Statute of Ph. Ma. ann 1. cap. 3. provides a remedy in such cases Jones contra If the Statute of Ph. Ma. did extend to this case yet it does not restrain other ways that the Law allows to punish the Plaintiff or keep him quiet Our Saviour himself has given us a President he whipt buyers and sellers out of the Temple which act of buying and selling was not so great an impiety as to disturb the worship of God in the very act and exercise of it Court The St. of 1 Ph. Ma. concerns Preachers only but there is another Act made 1 Eliz. that extends to all men in Orders that perform any part of publick Service But neither of these Statutes take away the Common Law And at the Common Law any person there present might have removed the Plaintiff for they were all concern'd in the Service of God that was then performing so that the Plaintiff in disturbing it was a Nusance to them all and might be removed by the same rule of Law that allows a man to abate a Nusance Whereupon Iudgment was given for the Defendant Nisi causa c. Anonymus ACtion sur le Case The Plaintiff declares that whereas the Testator of the Defendant was endebted to the Plaintiff at the time of his death in the sum of 12 l. 10 s. that the Defendant in consideration of forbearance promised to pay him 5 l. at such a time and 5 l. more at such a time after and the other 50 shillings when he should have received money then avers that he did forbear c. and saith that the Defendant paid the two five pounds but for the 50 shilllings residue that he hath received money but hath not paid it The Defendant pleaded non Assumpsit which was found against him Wilmot moved in arrest of Iudgment that the Plaintiff doth not set forth how much money the Defendant had received who perhaps had not received so much as 50 shillings he said though the promise was general yet the breach ought to be laid so as to be adequate to the consideration And secondly that the Plaintiff ought to have set forth of whom the Defendant received the money and when and where because the receit was traversable The Court agreed that there was good cause to demur to the Declaration but after a Verdict they would intend that the Defendant had received 50 shillings because else the Iury would not have given so much in damages and for the other exception they held that the Defendant having taken the general issue had waived the benefit thereof Alford Tatnell GRegory Melchisedec Alford were bound joyntly to Tatnell in a Bond of 700 l. the Obligee brought several Actions and obtained two several Iudgments in this Court against the Obligors and sued both to an Outlawry And in Mich. Term. 18 Car. 2. both were returned outlawed In Hill Term following Gregory Alford was taken upon a Cap. utlagatum by Browne Sheriff of Dorset-shire who voluntarily suffered him to escape Tatnell brought an Action of Debt upon this escape against Browne and recover'd and receiv'd satisfaction notwithstanding which he proceeded to take Melchisedec Alford who brought an Audita querela and set forth all this matter in his Declaration but upon a demurrer the Opinion of the Court was against the Plaintiff for a fault in the Declaration viz. because the satisfaction made to the Plaintiff by the Sheriff was not specially pleaded viz. time and place alledged where it was made for it is issuable and for ought appears by the Declaration it was made after the Writ of Audita querela purchased and before the Declaration The Court said if Tatnell had only brought an Action on the case against the Sheriff and recovered damages for the escape though he had had the damages paid that would not have béen sufficient ground for the Plaintiff here to bring an Audita querela but in this case he recovered his Original debt in an Action of debt grounded upon the escape which is a sufficient ground of Action if he had declared well They gave day to show cause why the Declaration should not be amended paying Costs Anonymus AN Action of False Imprisonment The Defendants justifie by vertue of a Warrant out of a Court within the County Palatine of Durham to which the Plaintiff demur'd The material part of the Plea was That there was antiqua Curia tent coram Vicecomite Comitatus c. vocat The County Court which was accustomed to be held de 15 diebus in 15 dies and that there was a Custom that upon a Writ of questus est nobis issuing out of the County Palatine of Durham and delivered to the Sheriff c. that upon the Plaintiffs affirming quandam querelam against such person or persons against whom the questus est nobis issued the Sheriff used to make out a Writ in the nature of a cap. ad satisfac against him or them c. that such a Writ of questus est nobis issued ex Cur ' Cancellarii Dunelm which was delivered to the Sheriff who thereupon made a precept to his Bayliffs to take the Plaintiff who thereupon was arrested which
Defendants as Executors also they pleaded severally plene administravit Vpon one of the Issues a Special Verdict was found viz. that the said Defendant being Executor durante min ' aetate of an Infant had paid such and such Debts and Legacies and had delivered over totum residuum status personalis of the Testator to the Infant Executor when he came of Age. Iustice Atkyns This special Verdict does not maintain the Defendants plea of fully administred for that cannot be pleaded unless all Debts c. are discharged as far as the Assets will reach which is not done here for residuum status personalis is delivered over c. and that residuum is lyable to the payment of this Debt which is yet undischarged But Vaughan Wyndham and Ellis held that however an Executor dischargeth himself of the Estate that was the Testators he may plead fully administred and that it is his safest plea. It was found by the same Verdict that the Testator left a personal Estate to the value of 2000 l. that there were owing by him 500 l. in Debts upon specialties 500 l. more upon simple Contracts and that he had disposed of 400 l. in Legacies and that this Defendant was Executor durante minor ' of the Testators Son that he had paid 1400 l. in discharge of the Debts and Legacies aforesaid and had accounted with the Infant Executor when he came of age and that upon the payment of 91 l. to him the Infant Executor released to him all Actions c. and whether upon this whole matter this Defendant should be said to have administred was the question Vaughan When an Infant Executor comes of age the power of an Executor durante minore aetate ceaseth and the new Executor is then lyable to all Actions if the former Executor wasted the new one hath his remedy against him but he is not lyable to other mens Suits Nor is there any inconvenience in this for still here is a person lyable to all Actions It is objected that possibly the new Executor is not of ability to satisfie I answer if in some particular case it fall out to be so that is by accident and to argue from the possibility of such an accident is to suppose the Law fitted to answer all emergencies Atkyns accorded Vaughan It is said that here are 1500 l. lyable to pay this Debt for to pay debts upon simple Contracts or Legacies before it is a devastavit especially the Defendant having notice of this debt which was also found That is a mistake upon which some books run but it is certainly no Law Debts upon simple Contracts may be paid before Bonds unless the Executors have timely notice given them of those Bonds and that notice must be by Action Atkyns and Ellis agréed with Vaughan Wyndham dubitabat The case was put off to be argued next Trinity Term but in the mean time the Plaint discontinued Scudamore Crossing Exch. Chamber EJectione firmae A special Verdict it was found that a man by Deed did give and grant bargain and sell alien enfeoff and confirm to his daughter certain Lands but no consideration of money is mention'd nor is the Deed enroll'd there is likewise no consideration of natural Affection expressed other then what 's implyed in naming the Grantee his daughter there is no Livery endorsed nor any found to have been made nor was the daughter in possession at the time of the Deed made The question was whether this were a void Deed or had any operation at all in the Law and what was wrought by it In the Kings Bench it was adjudged by the whole Court to be a good Deed and that it carried the Estate to the daughter by way of covenant to stand seized Vpon a Writ of Error before the Iustices of the Common-Pleas and the Barons of the Exchequer the case was argued at Sergeants-Inn by Sir William Jones against the Deed aud by Sir Francis Winnington in maintenance of it Jones Before the Statute of Vses a man might either have retained the possession and have departed with the use or he might have departed with the possession and have retained the use or he might have departed with them both together The Statute unites the possession to the use but leaves men at liberty to convey their Estates by putting the possession out of themselves and limiting an use or by raising an use and let the possession follow that Now how shall it be known when an Estate must pass one of these ways and when the other That must appear by the intention of the party expressed in the Deed. Some Conveyances contain words that look both ways some one way and some another If the words look both ways then has he to whom the Estate is intended to be conveyed election to take it whether way he likes best Sir Rowland Heyward's case 2 Rep. Adams Steer 2 Cr. 210. so in Mich. 9 Jacob. a man in consideration of money did grant enfeoff bargain and sell and in the deed there was a Letter of Attorney to make Livery resolved to be a good Conveyance by way of bargain and sale if the deed were enrolled Rolls second part 787. Where the words are only proper to pass an Estate by way of use there you shall never take an Estate at Common Law Cr. Jac. 210. in Adams Steer's case Denton Fettyplace's case 30 Eliz. is there cited that by the words of bargain and sale without attornment a Reversion passeth not Vide ibid. 50. Dr. Atkyns case The King bargains and sells c. no use can rise because the King cannot stand seized to an use Moor 113. On the other side where the words are proper to pass the Estate at Common Law there nothing shall pass by way of use Dyer 302. b. a quaere is there made whether or no if a man in consideration of natural affection c. release to his brother who is not in possession whether an use hereby ariseth to the relessee but this Quaere is resolved in a manuscript Report that I have of that case viz. That no use does arise He cited Ward Lambert's case Cr. Eliz. 394. Osburn Churchman's case Cr. Jac. 127. which is the case in question In Rolls second part fol. a man in consideration of marriage did give and grant to his wife after his decease to her and the heirs of her body c. and it was resolved that nothing passed This case is much stronger then ours for there is but one way to make this good viz. by raising an use for as a Conveyance at Common Law it cannot be good because a Freé-hold cannot be granted to commence in futuro and yet rather then recede from the words of the party the deed was adjudged to be void He cited Foster Foster's case Trin. 1659. which himself had argued In the deed here in question there are words proper to pass an Estate in possession give and
grant There is likewise a clause of warranty of which the Grantee should lose the benefit in a great measure if he were in the Post for then he shall not vouch and there are Opinions that he cannot rebut as in Spirt Bence's case There is also a Covenant that after the sealing and delivery and due execution of c. the party shall quietly enjoy c. now what execution can be meant but by Livery of seisin Foxe's case 8 Rep. has been objected in which it is resolved that the Reversion in that case should pass by way of bargain and sale though the words of grant were demise grant set and to Farm let all words proper to a Common-Law-Conveyance I answer the consideration of money there expressed is so strong a consideration as to carry it that way but the consideration of natural Affection is not so strong and so the cases are not alike the consideration of money has been held so strong as to carry an Estate of Fee-simple in an use without words of Inheritance Winnington contra He insisted upon the intention of the party the consideration of blood and natural affection and the necessity of making this deed good by way of Covenant to stand seized because it could not take effect any other way The clause of warranty and covenant for quiet enjoyment he said were but forms of Conveyances and words of Clerks but the effectual words are those that contain the inducement of the party to make the Conveyance and the words that pass the Estate he cited Plowd queries placito 305. Rolls 2 part 787. placito 25. 1 Inst 49. Poph. 49. in Fosters case which had been cited against him he said the deed was as unformal to pass the Estate one way as another In Osburn Churchman's case he said this point was started but that the resolution was not upon this point it came in question neither upon a special Verdict nor a demurrer Tibs Purplewell's case 40 41 Eliz. Rolls 2 part 786 787. answers all Objections against our case and is in form and substance the same with it He cited one Saunders Savin's case adjudged in the late times in the Common-Pleas viz. That where a man seiz'd in Fee of a Rent-charge granted it to a Kinsman for life and the grantor dyed before attornment it was resolved that upon the sealing and delivery of the deed an use arose Wherefore he prayed that the Iudgment might be affirmed Turner Chief Baron of the Exchequer Turner and Littleton Barons and Atkyns Wyndham and Ellis Iustices of the Court of Common-Pleas were for affirming the Iudgment Vaughan Chief Iustice of the Common Pleas and Thurland puisne Baron contra The six Iudges argued 1. That in a Covenant to stand seized those words of covenanting to stand seized to the use of c. are not absolutely necessary and that it is sufficient if there are words that are tantamount 2. That no Conveyance admits of such variety of words as does this of a Covenant to stand seized 3. That Iudges have always endeavoured to support Deeds ut res magis valeat c. 4. That the grantor in this case by putting in plenty of words shews that he did not intend to tye himself up to any one sort of Conveyance 5. That if the words give and grant had been alone in the deed there would have been no question and that if so then utile per inutile non vitiatur 6. That every mans deed must be taken most strongly against himself 7. That the words give and grant enure sometimes as a grant sometimes as a Covenant sometimes as a Release and must be taken in that sense which will best support the intent of the party 8. That the very point of this case has received two full determinations upon debate and that it were a thing of ill consequence to admit of so great an uncertainty in the Law as now to alter it 9. That there is here a clear intent that the daughter should have this Estate a Deed a good consideration to raise an use and words that are tantamount to a Covenant to stand seized Wherefore the Iudgment was affirm'd Thurland said The intention of the party was not a sure rule to construe deeds by that if Lands were given in connubio soluto ab omni servitio the intent of the giver is to make a gift in Frank-marriage but the Common Law that delights in certainty will not understand his words so because he does not say in libero maritagio In our case the first intent of the Father was to settle the Land upon his Daughter his second intent was to do it by such or such a Conveyance what Conveyance he meant to do it by we must know by his words the words give and grant do generally and naturally work upon something in esse strained constructions are not favoured in the Law Nor ought Heirs to be disinherited by forced and strained constructions If this Deed shall work as a Covenant to stand seized it will be in vain to study forms of Conveyances it is but throwing in words enough and if the Lands pass not one way they will another He cited Crook 279. Blitheman Blitheman's case And 34 35 Dyer 55 he said Pitfield Pierce's case in March was later then that of Tibs Purplewell and of better Authority Vaughan accordant It is not clear that the words give and grant are sufficient to raise an use but supposing that they are by a forced Exposition when nothing appears to the contrary will it thence follow that they may be taken in a sense directly contrary to their proper and genuine sense in such a place as this where all the other parts of the deed are wholly inconsistent with and will not by any possibility admit of such a construction he mentioned several clauses in the deed which he said were proper only to a Conveyance at Common Law He appealed to the Law before the Statute of Vses and said that where an use would not rise by the Common Law there the Statute executes no possession and that by such a deed as this no use would have risen at the Common Law but the Iudgment was affirmed Gabriel Miles his Case HE and his Wife recovered in an Action of Debt against one Cogan 200 l. and 70 l. damages the Wife dies and the Husband prays to have Execution upon this Iudgment The Court upon the first motion enclin'd that it should not survive to the Husband but that Administration ought to be committed of it as a thing in Action but this Term they agreed that the Husband might take out Excution and that by the Iudgment it became his own debt due to him in his own right And accordingly he took out a Scire facias Beaumond Long 's case Cr. Car. 208. was cited Anonymus THe Plaintiff in an Ejectione firmae declared upon a Lease made the tenth day of October habend '
from the 20th of November for five years And the question upon a special Verdict was whether this were a good or a void Lease Serjeant Jones There are many cases in which the Law rejects the limitation of the commencement of a Lease if it be impossible as from the 31st of September or the like now this being altogether uncertain and since there is nothing to determine your Iudgments what November he meant whether last-past or next-ensuing it amounts to an impossible limitation Rolls tit Estate placito 7. 849. ibid. placito 10. betwixt Elmes Leaves Baldwin contra The Law will reject an impossible limitation but not an uncertain limitation Vaughan Atkyns The Law rejects an impossible limitation because it cannot be any part of the parties agreement but an uncertain limitation vitiates the Lease because it was part of the agreement but we cannot determine it not knowing how the Contract was There are many examples of Leases being void for uncertainty of commencements which could not have béen adjudged void if the limitation in this case were good Wyndham Ellis contra And that it should begin from the time of the delivery It was moved afterward and Ellis being absent it was ruled by Vaughan Atkyns against Wyndham's Opinion and Iudgment was arrested Fowle Doble's Case FOrmedon in the Remainder The case was thus There were three Sisters the eldest was Tenant in Tail of a fourth part of 140 Acres c. in thrée Villes A. B. C. the Remainder in Fee-simple to the other two the Tenant in Tail takes Husband Dr. Doble the Defendant The Husband and Wife levy a Fine sur conisance de droit to the use of them two and the heirs of the body of the Wife the Remainder in Fee to the right Heirs of the Husband and this Fine was with warranty against them and the heits of the wife The wife dies without issue living the Husband against whom Lucy and Ruth the other two Sisters to whom the Remainder in Feé was limited bring a Formedon in the Remainder The Defendant as to part of the Lands in demand viz. 100 Acres pleaded Non-tenure and that such a one was Tenant To that plea the Plaintiff demurred As to the rest of the Lands he pleaded this Fine with warranty The Plaintiffs made a frivolous replication to which the Defendants demurred The Plaintiffs Councel excepted to the Defendants plea of Non-tenure 1. That he does not express in which of the Villes the 100 Acres lie 5 Ed. 3. 140. in the old Print 184. 33 H. 6. 51. Sir John Stanley's case But this was over-ruled for the Formedon being of so many several Acres he is not obliged to shew where those lie that he pleads Non-tenure of he tells the Plaintiff who is the Tenant which is enough for him 2. Because he that pleads Non-tenure in abatement ought to set forth who was Tenant die impetrationis brevis orig c. But this was over-ruled also for he says that himself was not Tenant die impetrationis brevis origin but that such another eodem die was Tenant which is certain enough When the Tenant pleads Non-tenure to the whole he needs not set forth who is Tenant otherwise when he pleads Non-tenure of part 11 H. 4. 15. 33 H. 6. 51. At the Common Law if the Tenant had pleaded Non-tenure as to part it would have abated all the Writ 36 H. 6. 6. but by the Statute of the 25 Ed. 3. cap. 16. it was enacted that by the exception of Non-tenure of parcel no Writ should be abated but only for that parcel whereof the Non-tenure was alledged A third exception was taken to the pleading of the Fine viz. because he pleaded a Fine levied of a fourth part without saying in how many parts to be divided This was also over-ruled and 1 Leon. 114. was cited where a difference is taken betwixt a Writ and a Fine and in a Fine it is said to be good that being but a common assurance aliter in a Writ 19 Ed. 3. Fitz. br̄e 244. This exception seems level'd against the Plaintiffs own Writ in which he demands a fourth part without saying in how many parts to be divided The matter in Law was whether or no this warranty being against the husband and wife and the heirs of the wife were a bar to the Plaintiffs or survived to the Husband and it was resolved to be a bar for this warranty as to the Husband was destroyed as soon as it was created the same breath that created it put an end to it for the Husband warranted during his life only and took back as large an Estate as he warranted which destroys his warranty and this is Littleton's Text if a man make a feoffment in Feé with warranty and take back an Estate in Fee the warranty is gone But the destruction of the husbands warranty does not affect the wives 20 H. 7. 1. and Sym's case upon which Ellis said he much relyed Herberts case 3 Rep. can give no rule here for that here the husband is seiz'd only in right of the wife Vaughan said That if the Fine in this case had beén levied to a stranger for life or in Fée who had béen impleaded by another stranger that in that case the Tenant ought to have vouched the surviving husband as well as the heir of the wife or else he would have lost his warranty 2. He said if the Fine had been levied to the use of a stranger who had been impleaded by the heirs of the wife he questioned whether or no the Tenant could have rebutted them for any more then a moity and he questioned the resolution of Sym's case 8 Rep. there is a Case cited in Symme's case out of the 45 Edw. 3. 23. which is expresly against the resolution of the case it is said in the Reports that no Iudgment was given in that case which is false and that the case is not well abridged by Brook which is also false If in case of a voucher a man loseth his warranty that does not vouch all that are bound why should not one that 's rebutted have the like advantage There is a resolution quoted in Sym's case out of 5 Edw. 2. Fitz. tit garranty 78 upon which the Iudgment is said to be founded being as is there said a case in point but he conceived not for Harvey that gave the rule said le tenant poit barrer vous touts ergo un sole in the case there were several co-heirs and if all were demandants all might have been barred and if one be demandant there 's no question but she may be rebutted for her part But Sym's case is quite otherwise for there one person is co-heir to the garranty that is not heir to any part of the Land In 6 Ed. 3. 50. there is a case resolved upon the ground and reason of the 45 Ed. 3. for these reasons he said he could not rely upon Sym's case He agreed
2. Suppose the Defendant had taken issue upon the Statutes being burnt and it had been found to have béen burnt and yet had been found afterwards the Defendant could not have any benefit of this Verdict He said it was a proper case for Equity Slater Carew DEbt upon a Bond. The Condition was that if the Obligor his heirs Executors c. do yearly and every year pay or cause to be paid to Tho. and Dor. his wife during their two lives that then c. the Husband dies and the question was whether or no the payment should continue to the Wife Serjeant Baldwin argued that the money is payable during their lives and the longer liver of them he cited Brudnel's case 5 Rep. and 1 Inst 219. b. that whenever an Interest is secured for lives it is for the lives of them and the longer liver of them and Hill's case adjudged Pasch 4 Jac. Rot. 112. in Warburton's Reports Seyse contra The interest of this Bond is in the Obligee the Husband and Wife are strangers and therefore the payment ceaseth upon the death of either of them and of that Opinion was the whole Court and grounded themselves upon that distinction in Brudnel's case betwixt where the Cestuy que vies have an interest and the cases of collateral limitations They said also that in some cases an interest would not survive as if an Office were granted to two and one of them dyed unless there were words of Survivorship in the Grant So the Plaintiff was barred Term. Mich. 26 Car. II. in Communi Banco Farrer Brooks Administrat of Jo. Brooks THe Plaintiff had Iudgment in Debt against John Brooks the intestate and took out a Fieri facias bearing teste the last day of Trin. Term de bonis catallis of John Brooks before the Execution of which Writ John Brooks dies and Eliz. Brooks administers the Sheriffs Bayliff executes the Writ upon the Intestates Goods in her hands Vpon this Serjeant Baldwin moved the Court for Restitution for that a Fieri facias is a Commission and must be strictly pursued Now the words of the Writ are de bonis of John Brooks and by his death they cease to be his Goods The Plaintiff will be at no prejudice the Goods will still remain lyable to the Iudgment only let the Execution be renewed by Scire facias to which the Administratress may plead somewhat Wyndham The property of the Goods is so bound by the Teste of the Writ as that a Sale made of them bona fide shall be avoided which is a stronger case And since the Intestate himself could not have any plea why should we take care that the Administrator should have time to plead And of that Opinion was all the Court after they had advised with the Iudges of the Kings Bench who informed them that their practice was accordingly But Vaughan faid that in his Opinion it was clearly against the rules of Law But they said there were cases to this purpose in Cr. Car. Rolls Moor c. Liefe Saltingstone's Case EJect ' firmae The case upon a special Verdict was thus viz. Sir Rich. Saltingstone being seized in Fee of Rees-Farm on the 17th day of Febr ' in the 19th year of the King made his Will in writing in which were these words viz. for Rees-Farm in such a place I will and bequeath it to my Wife during her natural life and by her to be disposed of to such of my Children as she shall think fit Sir Richard dyed his Wife entred and sealed such a Writing as this viz. Omnibus Christi fidelibus c. Noveritis that whereas my Husband Sir Richard Salting-stone c. reciting that clause in the Will I do dispose the same in manner following that is to say I dispose it after my decease to my Son Philip and his heirs for ever The Wife died and Philip entred and dyed and left the Lessor of the Plaintiff his Son and heir The question was what Estate Philip took or what Estate the Testator intended should pass out of him This case was argued in Easter-Term last past by Serjeant Scroggs for the Plaintiff and by Serjeant Waller for the Defendant and in Trinity-Term by Serjeant Baldwin for the Plaintiff and Serjeant Newdigate for the Defendant They for the Plaintiff insisted upon the word dispose that when a man deviseth his Land to be disposed by a stranger it has been always held to be a bequeathing of a Feé-simple or at least a power to dispose of the Fee-simple 19 H. 8. 10. Moor 5 Eliz. 57. per Dyer Weston Welshe but they chiefly relyed on Daniel Uply's case in Latch The Defendants Councel urged that the heir at Law ought not to be disinherited without very express words That if the Devisor himself had said in his Will I dispose Rees-Farm to Philip that Philip would have had no more then an Estate for life and what reason is there that the disposal being limited to another should carry a larger Interest then if it had been executed by the Testator himself This Term it was argued at the Bench and by the Iudgments of Ellis Wyndham Atkyns Iustices the Plaintiff had Iudgment they agreed that the Wife took by the Will an Estate for her own life with a power to dispose of the Fee She cannot take a larger Estate to her self by implication then an Estate for life because an Estate for life is given to her by express limitation 1 Bulst 219 220. Whiting Wilkins case For cases resembling the case in question were cited 7 Ed. 6. Brook tit Devise 39. 1 Leon. 159. Daniel Uply's case Clayton's case in Latch It is objected that in Daniel Uply's case there are these words at her will and pleasure to which they answered that if she have a power to dispose according to her discretion and as she her self pleaseth and then expressio eorum quae tacite insunt nihil operatur If I devise that J. S. shall sell my Land he shall sell the Inheritance Kelloway 43 44. 19 H. 8. fol. 9. Where the Devisor gives to another a power to dispose he gives to that person the same power that himself had Vaughan Chief Justice differed in Opinion he said it is plain that the word dispose does not signifie to give for if so then it is evident that the Lessor of the Plaintiff cannot have any title for if the Wife were to give then were the Estate to pass out of her which could not be by such an appointment as she makes here but must be by a legal Conveyance Besides she cannot give what she has not and she has but an Estate for life If then it does not signifie to give what does it signifie let us a little turn the words and a plain certain signification will appear I will and bequeath Rees-Farm to such of my Children as my Wife shall think fit at her disposal at this rate
Man brings an Action of Debt against B. Sheriff of the County Palatine of Lancaster and sues him to an Outlawry upon mean Process and has a Capias directed to the Chancery of the County Palatine who makes a Precept to the Coroners of the County being six in all to take his body and have him before the Kings Iustices of the Court of Common-Pleas at Westminster such a day One of the Coroners being in sight of the Defendant and having a fair opportunity to Arrest him doth it not but they all return non est inventus though he were easie to be found and might have been taken every day Hereupon the Plaintiff brings an Action against the Coroners and lays his Action in Middlesex and has a Verdict for 100 l. Serj. Baldwin moved in Arrest of Iudgment that the Action ought to have been brought in Lancaster he agreed to the cases put in Bulwer's case 7 Rep. where the cause of Action arises equally in two Counties but here all that the Coroners do subsists and determines in the County Palatine of Lancaster for they make a Return to the Chancery of the County Palatine only and it is he that makes the Return to the Court He insisted upon Dyer 38 39 40. Husse Gibbs 2. He said this Action is grounded upon two wrongs one the not arresting him when he was in sight the other for returning non est inventus when he might easily have been taken now for the wrong of one all are charged and entire damages given He said two Sheriffs make but one Officer but the case of Coroners is different each of them is responsible for himself only and not for his Companion Serjeant Turner Pemberton contra They said the Action was well brought in Middlesex because the Plaintiffs damage arose here viz. by not having the body here at the day They cited Bulwer's case Dyer 159. b. the Chancery returns to the Court the same answer that the Coroners return to him so that their false Return is the cause of prejudice that accrues to the Plaintiff here The ground of this Action is the return of non est inventus which is the act of them all that one of them saw him and might have arrested him and that the Defendant was daily to be found c. are but mentioned as arguments to prove the false Return And they conceived an Action would not lie against one Coroner no more then against one Sheriff in London York Norwich c. But to the first exception taken by Baldwin they said admitting the Action laid in another County then where it ought yet after Verdict it is aided by the Statute of 16 17 Car. 2. if the Ven. come from any place of the County where the Action is laid it is not said in any place of the County where the cause of Action ariseth now this Action is laid in Middlesex and so the Trial by a Middlesex Iury good let the cause of Action arise where it will Cur̄ That Statute doth not help your case for it is to be intended when the Action is laid in the proper County where it ought to be laid which the word proper County implies But they inclined to give Iudgment for the Plaintiff upon the reasons given by Turner Pemberton Adjornatur Bird Kirke IT was resolved in this case by the whole Court 1. That if there be Tenant for life the Remainder for life of a Copy-hold and the Remainder-man for life enter upon the Tenant for life in possession and make a surrender that nothing at all passeth hereby for by his entry he is a Disseisor and has no customary Estate in him whereof to make a surrender 2. That when Tenant for life of a Copy-hold suffers a Recovery as Tenant in Fee that this is no forfeiture of his Estate for the Free-hold not being concern'd and it being in a Court-Baron where there is no Estoppell and the Lord that is to take advantage of it if it be a forfeiture being party to it it is not to be resembled to the forfeiture of a Free-Tenant that Customary Estates have not such accidental qualities as Estates at Common Law have unless by special Custom 3. That if it were a forfeiture of this and all other forfeitures committed by Copy-holders the Lord only and not any of those in Remainder ought to take advantage And they gave Iudgment accordingly North Chief Justice said that where it is said in King Lord's case in Cr. Car. that when Tenant for life of a Copy-hold surrenders c. that no use is left in him but whosoever is afterward admitted comes in under the Lord that that is to be understood of Copy-holds in such Mannors where the Custom warrants only Customary Estates for life and is not applicable to Copy-holds granted for life with a Remainder in Fee Anonymus A Writ of Annuity was brought upon a Prescription against the Rector of the Parish Church of St. Peter in c. the Defendant pleads that the Church is overflown with the Sea c. the Plaintiff demurs Serjeant Nudigate pro Querente The Declaration is good for a Writ of Annuity lies upon a prescription against a Parson but not against an heir F. N. B. 152. Rastall 32. the plea of the Church being drowned is not good at best it is no more then if he had said that part of the Glebe was drowned it is not the building of the Church nor the consecrated ground in respect whereof the Parson is charged but the profits of the Tythes and the Glebe Though the Church be down one may be presented to the Rectory 21 H. 7. 1. 10. H. 7. 13. 16 H. 7. 9. Luttrel's case 4 Rep. Wilmote contra The Parson is charged as Parson of the Church of St. Peter we plead in effect that there is no such Church and he confesseth it 21 Ed. 4. 83. Br. Annuity 39. 21 Ed. 4. 20. 11 H. 4. 49. we plead that the Church is submersa obruta c. which is as much a dissolution of the Rectory as the death of all the Monks is a dissolution of an Abbathie It may be objected that the Defendant has admitted himself Rector by pleading to it but I answer 1. An Estoppel is not taken notice of unless relyed on in pleading 2. The Plaintiff by his demurrer has confessed the Fact of our plea. By which mean the matter is set at large though we were estopped The Court was clearly of opinion for the Plaintiff The Church is the Cure of Souls and the right of Tythes If the material Fabrick of the Parish-Church be down another may be built and ought to be Judicium pro Quer ' nisi c. Term. Trin. 27 Car. II. in Communi Banco Vaughton versus Atwood alios TRespass for taking away some Flesh-meat from the Plaintiff being a Butcher The Defendant justifies by virtue of a Custom of the Mannor of c. that the Homage used
also for that they sued the Plaintiff in another Court knowing that he was an Attorney of the Common-Pleas and priviledged there Per tot ' Cur ' there is no cause of Action For put the case as strong as you will suppose a man be retained as an Attorney to sue for a debt which he knows to be released and that himself were a witness to the Release yet the Court held that the Action would not lye for that what he does is only as Servant to another and in the way of his Calling and Profession And for suing an Attorney in an inferiour Court that they said was no cause of Action for who knows whether he will insist upon his priviledge or not and if he does he may plead it and have it allowed Fits al. versus Freestone IN an Action grounded upon a promise in Law payment before the Action brought is allowed to be given in Evidence upon non Assumpsit But where the Action is grounded upon a special promise there payment or any other legal discharge must be pleaded Bringloe versus Morrice IN Trespass for immoderately riding the Plaintiffs Mare the Defendant pleaded that the Plaintiff lent to him the said Mare licentiam dedit eidem aequitare upon the said Mare and that by virtue of this Licence the Defendant and his Servant alternatim had rid upon the Mare The Plaintiff demurs Serj. Skipwith pro Quer ' The Licence is personal and incommunicable as 12 H. 7. 25. 13 H. 7. 13. the Dutchess of Norfolk's case 18 Ed. 4. 14. Serj. Nudigate contra This Licence is given by the party and not created by Law wherefore no Trespass lyeth 8 Rep. 146 147. per Cur ' the Licence is annexed to the person and cannot be communicated to another for this riding is matter of pleasure North took a difference where a certain time is limited for the Loan of the Horse and where not In the first case the party to whom the Horse is lent hath an interest in the Horse during that time and in that case his Servant may ride but in the other case not A difference was taken betwixt hiring a Horse to go to York and borrowing a Horse in the first place the party may set his Servant up in the second not Term. Pasch 28 Car. II. in Communi Banco Anonymus A Man upon marriage Covenants with his Wives relations to let her make a Will of such and such Goods she made a Will accordingly by her husbands consent and dyed After her death her Will being brought to the Prerogative Court to be proved a Prohibition was prayed by the Husband upon this suggestion that the Testatrix was foemina viro cooperta and so disabled by the Law to make a Will Cur ' Let a Prohibition go Nisi causa c. North. When a question ariseth concerning the Iurisdiction of the Spiritual Court as whether they ought to have the Probate of such a Will whether such a disposition of a personal Estate be a Will or not whether such a Will ought to be proved before a peculiar or before the Ordinary whether by the Archbishop of one Province or another or both and what shall be bona notabilia in these and the like cases the Common Law retains the Iurisdiction of determining there is no question but that here is a good surmise for a Prohibition to wit that the woman was a person disabled by the Law to make a Will the Husband may by Covenant depart with his right and suffer his Wife to make a Will but whether he hath done so here or not shall be determined by the Law we will not leave it to their decision it is too great an invasion upon the right of the Husband In this case the Spiritual Court has no Iurisdiction at all they have the Probate of Wills but a Feme-covert cannot make a Will If she disposeth of any thing by her Husbands consent the property of what she so disposeth passeth from him to her Legatee and it is the gift of the husband If the Goods were given into anothers hands in trust for the wife still her Will is but a Declaration of the trust and not a Will properly so called But of things in Action and things that a Feme-Covert hath as Executrix she may make a Will by her Husbands consent and such a Will being properly a Will in Law ought to be proved in the Spiritual Court. In the case in question a Prohibition was granted against the Hambrough Company THe Plaintiff brought an Action of Debt in London against the Hambrough-Company who not appearing upon Summons and a Nihil being returned against them an Attachment was granted to attach Debts owing to the Company in the hands of 14 several persons by Certiorari the cause was removed into this Court and whether a Procedendo should be granted or not was the question Serjeant Goodfellow Baldwin and Barrell argued that a debt owing to a Corporation is not attachable Serjeant Maynard Scroggs contra Cur ' We are not Iudges of the Customs of London nor do we take upon us to determine whether a debt owing to a Corporation be within the Custom of forrein Attachment or not This we judge and agree in that it is not unreasonable that a Corporation's debts should be attached If we had judged the Custom unreasonable we could and would have retained the cause For we can over-rule a Custom though it be one of the Customs of London that are confirmed by Act of Parliament if it be against natural reason But because in this Custom we find no such thing we will return the cause Let them proceed according to the Custom at their peril If there be no such Custom they that are aggrieved may take their remedy at Law We do not dread the consequences of it It does but tend to the advancement of Iustice and accordingly a Procedendo was granted per North Chief Justice Wyndham Ellis Atkyns aberat Anonymus PEr Cur ' if a man is indicted upon the Statute of Recusancy Conformity is a good plea but not if an Action of Debt be brought Parten Baseden's Case PArten brought an Action of Debt in this Court against the Testator of Baseden the now Defendant aâ—d had Iudgment After whose death there was a devastavit returned against the Defendant Baseden his Executor he appeared to it and pleaded and a special Verdict was found to this effect viz. that the Defendant Baseden was made Executor by the Will and dwelt in the same house in which the Testator lived and died and that before Probate of the Will he possest himself of the Goods of the Testator prized them inventoried them and sold part of them and paid a Debt and converted the value of the residue to his own use that afterwards before the Ordinary he refused and that upon his refusal administration was committed to the Widow of the deceased And the question was whether or no the
custodiend dies suos in talibus locis prout praedict brevia billae sive warranta requirerent tali persona sive personis quae fuit vel forent in eorum custodia per condemnation execution cap. utlagatum sive excommunicat pro securitate pacis omnibus talibus personis quae forent Commiss ad custod per speciale mandatum aliquorum Justiciariorum vagrantibus recusantibus ad serviendum secundum firmam Statuti de laboratoribus tantummodo exceptis prout per actum praedictum plenius apparet iidem Henricus Robertus ulterius dicunt quod ipsi decimo quarto die Julii anno Regni dicti Dni Regis nunc c. vicesimo sexto supradict in dicta narratione superius specificat iisdem Henr. Roberto tunc Vicecom ' Com' praed existentibus apud Parochiam S. Clementis Dacorum in Com praed ceperunt arrestaverunt praedictum Samuelem Wadham virtute praecepti praedicti in narratione praedict superius specificat ac ipsum ad prisonam dicti Dom. Regis sub custodia Vicecom Com. praed tunc existent tunc ibidem commiserunt praedictoque Samuele sub custodia praedict Henr. Roberti existent pro eadem causa pro nulla alia causa praedict Sam. Wadham postea ante return praecepti illius scil praedicto decimo quarto die Julii anno vicesimo sexto supradicto apud paroch praedict ' in Com' praedict ' invenit obtulit praedict ' Henrico Roberto adtunc Vicecom ' Com' praedict ' existentibus rationabilem securitatem sufficentium personarum habentium sufficiens infra Com' praedict ' Middlesex ad servandum diem suum praedict ' in praecepto praedict ' superius specificat ad rndum praefato Tho. de placito transgressionis ac etiam billae ipsius Tho. versus praefatum Samuelem pro triginta quatuor libris super assumptioem secundum consuetudinem Cur ipsius Dni Regis coram ipso Rege exhibend ' secundum exigentiam praecepti illius viz. Willielmus King de paroch Sancti Martini in campis in Com' Middlesex Generos Tho. Williams de eadem paroch in Com praedict Taylor qui quidem Willielmus King Tho. Williams eundem Samuelem ad tunc manucapere obtulerunt quod ipse idem Sam. Wadham compareret coram dicto Dno Rege apud Westmon die veneris prox ' post tres septimanas Sancti Mich. prox ' sequent ad respondend praefat Tho. Page de placito transgressionis billae praedict in narratione praedict superius specificat secundum formam effectum actus praedicti iidem Henr. Robertus ulterius dicunt quod postea ante returnum praecepti praedicti scil praedicto decimo quarto die Julii ann vicesimo sexto supradicto iisd ' Henr Roberto tunc Vicecom Com praed existent apud paroch Sancti Clementis Danor praed ' vigore Statut. praed cep de praefat ' Samuele rationabilem securitatem praedict ' viz. Willielmum King Tho. Williams qui quidem Willielmus King Tho. Williams iisdem die anno apud paroch praedict ' Sancti Clementis Danor in Com praedict per quoddam Scriptum suum obligatorium subsigill praedictor Willielmi King Tho. Williams cujus dat est decimo quarto die Jul. ann vicesimo sexto supradict concessissent quilibet eorum concessit se teneri praefato Henric. Robert ut Vicecom Com praed ' in summa 70 librar bonae legalis monetae Angliae cum conditione eidem Script Obligator subscript quod praedict Samuel compareret coram dicto Dom Rege apud Westmonast praedict die veneris prox ' post tres septimanas Sancti Michaelis prox ' sequent ad respondend ' praefato Tho. Page de placit ' transgressionis billae praedict ' secundum exigentiam praecepti praedicti superinde ad tunc ibid ' emiserunt praefat ' Sam extra prisonam praedict ' secundum formam Statuti praedict ' ut eis bene licuit quae est eadem ad largum ire permssio praedict ' unde praed ' Tho. Page superius versus eos queritur ulterius iidem Henr. Robert dicunt quod ipsi postea scil ad diem returni ejusdem praecepti coram dicto Dno Rege apud Westmonast ' praedict iisdem Henr Robert tum Vicecom Com praed existent returnaverunt praeceptum praedictum quod ipsi virtute praecepti praedicti cepissent praefatum Samuelem cujus corpus coram dicto Dom Rege ad diem locum in eodem praecept content parat habuerunt prout per idem praecept praecipiebatur hoc parati sunt verificare unde petunt judicium damna sua occasione praedict sibi adjudicand ' Et praedict Tho Page dicit quod ipse per aliqua per praedict Henric. Robert superius placitando allegat ab actione sua praedict versus praed Henr. Robert habend praecludi non debet quia protestando quod praedict Henr. Robert non ceperunt securitatem sufficientium personarum pro comparentia praedict Samuelis ad diem locum in praecepto praed superius specificat prout praed Henr. Robert superius placitando allegaverunt pro placito idem Thom. dicit quod iidem Henr Robert corpus praefati Samuelis ad diem locum in praecept praed content cor dicto Dno Rege non parat habuerunt juxta exigentiam praecepti praedict returnum suum praedict hoc paratus est verificare unde petit judicium damna sua occasione praemissorum sibi adjudicari The Defendants demur to this replication and the Plaintiff joins in demurrer Serjeant Strode pro Defendente Before the Statute of Westm 2. cap. 10. no man could make an Attorney without the Kings Writ de Attornato faciendo and there was no other return at the Common Law then cepi corpus or non est inventus Vide 32 H. 6. 28. The Statute of 32 H. 6. doth not alter the Return The design of that Statute is only to provide for the Defendants ease and against the extortion of Sheriffs and their Officers so that the Sheriff being obliged to return a Cepi and yet to let the Defendant to bail there can be do reason why he should be charged for not having the body at the day He cited Langton Gardners case Cr. Eliz. 460. Barton Aldworth Cr. Eliz. 624. in Bowles Lassel's case ibid. 852. The Sheriff took bail according to this Statute and returned a languidus in prisona though the Defendant was at large resolved that no Action lay against the Sheriff Trin. 13 Jac. Rolls Abr. 1. part 92. no Action lies against the Sheriff for not having the body at the day because he is compellable by the Statute to let him to bail and so he said it was resolved in a case between Francklyn Andrews Br. 24 Car. 1. but adjudged for the Plaintiff upon the insufficiency of the pleading Serjeant Conyers for the Plaintiff I agrée that an Action of Escape will not lie against
the Sheriff because he is compellable to let him to bail but this is an Action at the Common Law for a false Return which if it should not be maintainable the design of the Statute would be defrauded for the Plaintiff cannot controll the Sheriff in his taking bail but he may take what persons and what bail he pleaseth and if he should not be chargeable in an Action for not having the body ready the Plaintiff could never have the effect of his Suit and although the Sheriff be chargeable he will be at no prejudice for he may repair his loss by the bail-bond and it is his own fault if he takes not security sufficient to answer the Debt The last clause in the Statute is That if any Sheriff return a Cepi corpus or reddidit se he shall be chargeable to have the body at the day of the Return as he was before c. that if implies a Liberty in the Sheriff not to return a Cepi corpus or reddidit se But notwithstanding by the opinion of North Chief Justice Wyndham Atkyns Justice the Plaintiff was barred Bowles Lassel's case they said was a strong case to govern the point and the return of paratum habeo is in effect no more then if he had the body ready to bring into Court when the Court should command him and it is the common practice only to amerce the Sheriff till he does bring in the body and therefore no Action lies against him for it is not reasonable that he should be twice punished for one Offence and that against the Court only Scroggs delivered no Opinion but Iudgment was given ut sup Cockram Welby ACtion upon the Case against a Sheriff for that he levied such a sum of money upon a Fieri facias at the Suit of the Plaintiff and did not bring the money into Court at the day of the return of the Writ Per quod deterioratus est dampnum habet c. the Defendant pleads the Statute of 21 Jac. of Limitations To which the Plaintiff demurs Serjeant Barrell This Action is within the Statute It ariseth ex quasi contractu Hob. 206. Speak Richard's case It is not grounded on a Record for then nullum tale Recordum would be a good plea which it is not it lies against the Executors of a Sheriff which it would not do if it arose ex maleficio Pemberton This Action is not brought upon the Contract if we had brought an Indebitatus Assumpsit which perhaps would lie then indeed we had grounded our selves upon the Contract and there had been more colour to bring us within the Statute but we have brought an Action upon the case for not having our money here at the day Per quod c. North. An Indebitatus Assumpsit would lie in this case against the Sheriff or his Executor and then the Statute would be pleadable I have known it resolved that the Statute of Limitations is not a good plea against an Attorny that brings an Action for his Fees because they depend upon a Record here and are certain Next Trinity Term the matter being moved again the Court gave Iudgment for the Plaintiff Nisi causa c. if the Fieri facias had been returned then the Action would have beén grounded upon the Record and it is the Sheriffs fault that the Writ is not returned but however the Iudgment in this Court is the foundation of the Action Debt upon the Stat. of 2 Edw. 6. for not setting out Tythes is not within the Stat. for oritur ex maleficio so the ground of this Action is maleficium and the Iudgment here given In both which respects it is not within the Statute of Limitations Barrow Parrot PArrot had married one Judith Barrow an Heiress Sir Herbert Parrot his Father and an ignorant Carpenter by vertue of a dedimus potestatem to them directed took the conusance of a Fine of the said Judith being under age and by Indenture the use was limited to Mr. Parrot and his wife for their two lives the remainder to the Heirs of the Survivor about two years after the wife died without issue and Barrow as heir to her prayed the relief of the Court. Vpon examination it appear'd that Sir Herbert did examine the woman whether she were willing to levy the fine and asked the husband and her whether she were of age or not both answered that she was She afterwards being privately examin'd touching her consent answered as before and that she had no constraint upon her by her husband but she was not there question'd concerning her age Sir Herbert Parrot was not examined in Court upon Oath because he was accused and North said this Court could no more administer an Oath ex Officio then the Spiritual Court could North Wyndham There is a great trust reposed in the Commissioners and they are to inform themselves of the parties age and a voluntary ignorance will not excuse them But Atkyns opposed his being fined he cited Hungates case Mich. 12 Jac. Cam. Stell 12. Cook 122 123. where a Fine by Dedimus was taken of an Infant and because it was not apparent to the Commissioners that the Infant was within age they were in that Court acquitted But North Wyndham Scroggs agreed that the Son should be fined for that he could not possibly be presumed to be ignorant of his Wifes age Atkyns contra But they all agreed that there was no way to set the Fine aside Term. Trin. 29 Car. II. in Communi Banco Searle Long. QUare Impedit against two one of the Defendants appears the other casts an essoyn wherefore he that appear'd had idem dies then he that was essoyn'd appears and the other casts an essoyne Afterward an issued for their not Attachment appearing at the day and so Process continued to the great distress which being return'd and no appearance Iudgment final was ordered to be entred according to the Statute of Marlebr cap. 12. It was moved to have this rule discharged because the party was not summoned neither upon the Attachment nor the great distress and the Sureties returned upon the Process were John Doo Richard Roo an Affidavit was produced of Non-summons and that the Defendant had not put in any Sureties nor knew any such person as John Doo Richard Roo It was objected on the other side that they had notice of the suit for they appeared to the Summons and it appeared that they were guilty of a voluntary delay in that they forched in essoyne and the Stat. of Marlebr is peremptory wherefore they prayed Iudgment Serjeant Maynard for the Defendants If Iudgment be entred against us we have no remedy but by a Writ of Deceit Now in a Writ of Deceit the Sumners and veyors are to be examin'd in Court and this is the Trial in that Action but feigned persons cannot be examined It is a great abuse in the Officers to return such
But the Law in many cases takes notice of Parishes in civil affairs and Custom having by degrees introduced it we may allow of it in a Recovery as well as in a Fine Scroggs accordant If an Infant levy a Fine when he becomes of full age he shall be bound by the Deed that leads the Vses of the Fine as well as by the Fine it self because the Law looks upon both as one assurance So the Court was of Opinion that the Lands did pass It was then suggested that Iudgment ought not to be given notwithstanding for that the Plaintiff was dead But they said they would not stay Iudgment for that as this case was For between the Lessor of the Plaintiff and the Defendant there was another cause depending and tryed at the same Assizes when this issue was tryed and by agreément between the parties the Verdict in that cause was not drawn up but agreed that it should ensue the determination of this Verdict and the title to go accordingly Now the submission to this Rule was an implicite agreement not to take advantage of such occurrences as the death of the Plaintiff in an Ejectione firmae whom we know to be no wise concerned in point of interest and many times but an imaginary person It was said also to have Iudgment that there lived in the County where the Lands in question are a man of the same name with him that was made Plaintiff This the Court said was sufficient and that were there any of that name in rerum natura they would intend that he was the Plaintiff Cur̄ We take notice judicially that the Lessor of the Plaintiff is the person interested and therefore we punish the Plaintiff if he release the Action or release the damages Accordingly Iudgment was given Anonymus DEbt upon an Obligation was brought against the Heir of the Obligor hanging which Action another Action was brought against the same Heir upon another Obligation of his Ancestor Iudgment is given for the Plaintiffs in both Actions but the Plaintiff in the second Action obtains Iudgment first And which should be first satisfied was the question Barrel He shall be first satisfied that brought the first Action North. It is very clear That he for whom the first Iudgment was given shall be first satisfied For the Land is not bound till Iudgment be given But if the Heir after the first Action brought had aliened the Land which he had by descent and the Plaintiff in the second Action commenced after such alienation had obtained Iudgment and afterward the Plaintiff in the first Action had Iudgment likewise in that case the Plaintiff in the first Action should be satisfied and he in the second Action not at all What if the Sheriff return in such a case that the Defendant has Lands by descent which indeed are of his own purchase North. If the Sheriffs return cannot be traversed at least the party shall be relieved in an Ejectione firmae Dominus Rex versus Thorneborough Studly THe King brought a Quare Impedit against the Bishop of _____ and Thorneborough and Studly and declares That Queen Elizabeth was seised in see of the Advowson of Redriff in the County of Surrey and presented J. S. that the Quéen died and the Advowson descended to King James who died seized c. and so brings down the Advowson by descent to the King that now is Thorneborough the Patron pleads a Plea in Bar upon which the King demurs Studly the Incumbent pleads confessing Queen Elizabeths seisin in feé in right of her Crown but says that she in the second year of her Reign granted the Advowson to one Bosbill who granted to Ludwell who granted to Danson who granted to Hurlestone who granted to Thorneborough who presented the Defendant Studly and traverseth absque hoc that Queen Elizabeth died seized The Defendants Council produced the Letters Patents of secundo Reginae to Bosbill and his Heirs The King's Council give in evidence a Presentation made by Queen Elizabeth by usurpation anno 34 Regni sui of one Rider by which Presentation the Advowson was vested again in the Crown The Presentation was read in Court wherein the Queen recited that the Church was void and that it appertained to her to present North Chief Justice Is not the Queen deceived in this Presentation for she recites that it belongs to her to present which is not true If the Queen had intended to make an usurpation and her Clerk had been instituted she had gained the Fee-simple but here she recites that she had right Maynard When the King recites a particular Title and has no such Title his Presentation is void but not when his recital is general as it is here And this difference was agreed to in the Kings Bench in the Case of one Erasmus Dryden The Defendants Council shewed a Iudgment in a Quare Impedit against the same Rider at the suit of one Wingate in Queen Elizabeths time whereupon the Plaintiff had a writ to the Bishop and Rider was ousted Wingate claimed under the Letters Patents of the Second of the Queen viz. by a Grant of one Adie to himself to which Adie one Ludwell granted it anno 33 Eliz. Baldwin It appears by the Record of this Iudgment that a writ to the Bishop was awarded but no final Iudgment is given which ought to be after the three points of the writ enquired North. What is it that you call the final Iudgment there are two Iudgments in a Quare Impedit one that the Plaintiff shall have a writ to the Bishop and that is the final Iudgment that goes to the right betwixt the parties And the Iudgment at the Common Law There in another Iudgment to be given for Damages since the Stat. of West 2. cap. 5. after the points of the writ are enquired of Which Iudgment is not to be given but at the instance of the party Pemberton This Wingate that recovered was a stranger and had no title to have a Quare Impedit Now I take this difference where the King has a good Title no recovery against his Clerk shall affect the King's Title he shall not be prejudiced by a Recovery to which he is no party If the King have a defeasible Title as in our case by Vsurpation there if the rightful Patron recover against the King's Incumbent the King's Title shall be bound though he be not a party for his Title having no other Foundation than a Presentation when that is once avoided the Kings Title falls together with it But though the Kings Title be only by Vsurpation yet a Recovery against his Clerk by a stranger that has nothing to do with it shall not predudice the King covin may be betwixt them and the King be tried Now Wingate had no Right for he claimed by Grant from one Adie to whom Ludwell granted ann 33 Eliz. But we can prove this Grant by Ludwell to have been void for in the 29th of the
naught for the cause of their justification is that what they did was in executing a Sequestration whereby they were authorized to take into their hands the profits of the Rectory for the reparation of the Chancel Now they ought to avert that they did not take into their hands more than was sufficient for the reparation thereof North. If the Law come to be taken as my Brothers are of Opinion it will make a great step to the giving Ordinaries power to encrease Vicarages For the Parishioners have a right to a Maintenance for one to preach to them Adjornatur Edwards Weeks ACtion upon the case The Plaintiff declares that the Defendant in consideration that the Plaintiff would deliver unto him such a Horse promised to deliver to the Plaintiff in lieu thereof another Horse or five pounds upon request and avers that the Plaintiff had delivered to the Defendant the said Horse and had requested him c. The Defendant pleads that the Plaintiff before the Action brought discharged him of that promise but says not how To which the Plaintiff demurred Strode If he had pleaded a discharge before the request made the plea had been good without shewing how he discharged him but after the request once made a verbal request is not sufficient Cr. Car. Langden Stokes 384. 22 Ed. 4. 40. b. Cur̄ acc ' Et judicium pro querente Nisi causa c. Barker Keate EJectione firmae of Land in Castle-acre in Com̄ Norff. The Defendant pleaded not guilty and the issue was found as to part and for the residue there was a special Verdict viz. That Edm Hudson was seized to him and the heirs males of his body the remainder to William Hudson his Brother and the heirs males of his body That Edm. Hudson by Indenture betwixt himself and Thom. Peeps demised to Thom. Peeps from the Feast of St. Michael then last past for six months rendring a Pepper-corn Rent and that afterwards by another Indenture between himself on the one part and Thom. Peeps Edw. Bromley on the other part reciting the said Lease he bargained and sold the Reversion to Tho. Peeps his heirs and assigns to the intent to make him Tenant to the Praecipe in order to the suffering of a Common Recovery in which Edm̄ Bromley was to be the Recoveror and himself the said Edw. Hudson the Vouchee and that this Recovery was to be to the use of Edm̄ Hudson and his heirs c. and the Iury made a special conclusion viz. That if the Court should adjudge that in this Recovery there were a good Tenant to the Praecipe then they found for the Plaintiff if otherwise for the Defendant Serjeant Waller argued that there was no good Tenant to the Praecipe for that Tho. Peeps never was in possession by vertue of the Lease for six months No Entry is found nor no consideration to raise an use All the consideration mentioned is the reservation of a Pepper-corn which is not sufficient for it is to be paid out of the profits of the Land He compared it to Colyer's case 6 Rep. where a sum in gross appointed to be paid by the Devisee gave him an Estate in Fee-simple but a sum to be paid out of the profits of the Land not He cited the Lord Pagett's case Moor. 343. Dyer 10. placito 31. Besides the consideration in our case is a thing of no value being but a single Pepper-corn If an Infant make a Lease for years rendring Rent the Lease is but voidable but if an Infant make a Lease for years rendring a Rose or a Pepper-corn or any such like trifle the Lease is void He cited Fitzherb tit Entry congeable 26. North. When a Tenant for life or years assigns his Estate there needs no consideration in such case the tenure and attendance and the being subject to the ancient forfeiture and the payment of Rent if there were any is sufficient to vest the use in the Assignee but otherwise in case of a Fee-simple When a man is seised in Fee and makes a Lease for years unless he give possession and that the Lessee enter he must raise an Vse But in our case the reservation seems not sufficient to raise an Vse for an Vse must be raised and the Land united to it before a Rent can result out of it Wyndham It being in the case of a common Recovery we must support it if it be possible In Sutton's Hospital's case 10 Rep. 34. a. it is said that the reservation of 12 d. Rent was a sufficient consideration to vest an Vse in the Hospital and a Rent of 12 d. is as inconsiderable a matter in consideration of a great Estate as a Pepper-corn in our case The case in Dyer that has been cited is made a Quaere in the book I think the reservation of a Rent would have changed an Vse at the Common Law and will raise an Vse at this day If a Feoffee to an Vse had made a Feoffment in Fee rendring Rent the feoffment I conceive would have been to the use of the second feoffée and the first Vse destroyed The other two Iustices delivered no Opinion At another day the cause being moved again North said he had looked upon the President quoted out of Sutton's Hospitals case and that there the reservation of a Rent was mentioned in the Deed as a consideration to raise an Vse which he said would perchance make a difference betwixt that case and this But the Court would advise further Bassett Bassett AN Action of Debt upon an Obligation of 600 l. penalty the Condition was That if the above-bounden John Bassett his Heirs or Assigns shall within six months after the death of Mary Bassett his Mother settle upon and assure unto Hopton Bassett as the Council of the said Hopton Bassett learned in the Law shall advise at the Costs and charges of the said Hopton Bassett an Annuity or Rent-charge of twenty pounds per annum payable half-yearly by equal portions from the death of the said Mary during Hopton Bassett's life if he the said Hopton Bassett require the same at the dwelling house of the said John Bassett or if he shall not grant the same if then the said John Bassett shall pay unto Hopton Bassett within the time aforementioned 300 l. then the Obligation to be void The Defendant pleaded that the Plaintiff to wit the said Hopton Bassett had not tendred any Grant of an Annuity within the time of six months after the death of his Mother according to c. the Plaintiff replyed and the Defendant rejoyned But the Council of both sides and the Court agreed that the whole question arose upon the plea in bar Strode for the Defendant The Plaintiff ought to have tendred us a grant of Annuity to be sealed within six months c. and having neglected that he has dispensed with the whole Condition For 1. This is not a dis-junctive Condition but the payment of
300 l. is as a penalty imposed upon him if he refuse to make such a Grant And if he shall not c. instead of the word not put the words refuse to c. and the case will be out of doubt Besides the annuity to be granted is but 20 l. per annum for a life and 300 l. in money is more then the value of it so that it cannot be intended a sum to be paid in lieu or recompence of it but must be taken for a penalty But suppose it to be a dis-junctive Condition then we ought to have an Election whether we would do but as this case is the Plaintiff by his negligence has deprived us of our Election For Authorities he cited Gerningham Ewer's case Cr. Eliz. 396. 539. 4 H. 7. fol. 4. 5 Co. 21. b. Laughter's case Warner Whyte's case resolved the day before in the Kings Bench. There is a rule laid down in Morecomb's case in Moors Reports 645. which makes against me but the resolution of that case is Law and there needed no such rule That case goes upon the reason of Lambs case 5 Rep. when a man is obliged to pay such a sum as J. S. shall assess J. S. being a meer stranger the Obligor takes upon him that J. S. shall assess a sum in certain and he must procure him to do it or he forfeits his Obligation But in our case nothing is to be done but by the Obligee himself Pemberton contra He argued that the Obligors Election is not taken away for though no Deed were tendred him he might have got one made and the tender of that would have discharged the Condition of his Bond. Indeed this will put him to charge but he may have an Action of Debt for what he lays out He cited the cases cited by Walmesley in Moor 645. betwixt Milles Wood 41 Eliz. Gowers case 38 39 Eliz. c. North. The case of Warner White adjudged yesterday in the Court of Kings Bench is according to Law the condition there was that J. S. should pay such a sum upon the 25th of December or should appear in Hillary Term after in the Court of Kings Bench. J. S. died after the 25th day of Dec ' and before Hill Term and had paid nothing upon the 25th of December In that case the Condition was not broken by the non-payment and the other part is become impossible by the act of God But I think that if the first part of a Condition be rendred impossible by the act of God that the Obligor is bound to perform the other part But in the case at the bar the Obligors Election is taken away by the act of the Obligee himself And I see no difference betwixt this case and that of Gerningham Ewer in Cr. Eliz. if the Condition of an Obligation be single to make such assurance as shall be advised by the Council of the Obligee there concilium non dedit advisamentum is a good plea and the Obligor is not bound to make an assurance of his own head no more shall he be bound to do it when the Condition is in the dis-junctive to save his Bond. In both cases the Condition refers to the manner of the assurance and it must be made in such manner as the words of the Condition import So he said he was of Opinion against the Plaintiff Wyndham Where the Condition of an Obligation is in the disjunctive the Obligor must have his Election But in this case there is no such thing as a disjunctive till such time as there be a request made to seal a Deed of Annuity and then the Obligor will have an Election either to execute the assurance or to pay the 300 l. but no such request being made it should seem that the Obligor must pay the 300 l. at his peril Atkyns agreed with the Chief Iustice and so did Scroggs wherefore Iudgment was ordered to be entred against the Plaintiff Nisi causa c. within a week Quare impedit The Plaintiff declared upon a grant of the Advowson to his Ancestor and in his Declaration says hic in Cur̄ prolat ' but indéed had not the Deed to shew Serjeant Baldwin brought an Affidavit into Court that the Defendant had gotten the Deéd into his hands and prayed that the Plaintiff may take advantage of a Copy thereof which appear'd in an Inquisition found temp Edw. 6. Cur̄ When an Action of Debt is brought upon a Bond to perform Covenants in a Deed and the Defendant cannot plead Covenants perform'd without the Deed because the Plaintiff has the original deed and perhaps the Defendant took not a Counterpart of it we use to grant imparlances till the Plaintiff bring in the deed And upon Evidence if it be proved that the other party has the deed we admit Copies to be given in Evidence But here the Law requires that the deed be produced you have your remedy for the deed at Law We cannot alter the Law nor ought to grant an emparlance Stead Perryer EJectione firmae A man has a Son called Robert Robert has likewise a Son called Robert The Grandfather deviseth the Land in question to his Son Robert and his heirs Robert the deviseé dies in the devisors life time Afterwards the devisor makes a new publication of the same Will and declares it to be his intention that Robert the Grand-child should take the Land in question per eandem voluntatem instead of his Father and dyed And all this was found by special Verdict upon a Trial betwixt Robert the Grand-child and a Daughter of the elder Brother of Robert the first devisee Pemberton The Land does not pass by this Will the devise to Robert became void by his death and cannot be made good by a republication A publication cannot alter the words of a Will so as to put a new sense upon them Land must pass by Will in writing Robert the Grand-son is not within this Will in writing The Grandfathers intention is not considerable in the case Skipwith contra I agree the case between Brett Rygden in the Commentaries to be Law but there are two great diversities between this case and that 1. There was no new publication 2. In this case Robert the Father and Robert the Son are cognominous He cited Dyer 142 143. Trevilians case Fuller Fuller Cr. Eliz. 422. Moor 353. Cr Eliz. 493. North Atkyns Without question Robert the Grand-child shall take by this Will If he never had had a Son called Robert or if Robert the Son had been dead at the time of making the Will the Grand-child would then without dispute have taken by these words Now a new publication is equivolent to a new writing The Grand-child is not directly within the words of the Will but they are applicable to him He is a Son though he be not begotten by the body of the devisor himself He is a Son with
not bind an Infant neither by Common Law nor 5 Eliz. 1. Cr. 170. yet by this custom it shall in Pasch 21 Jac. B. R. Cole versus Holme there was such an Action against an Apprentice the Defendant pleaded Nonage the Plaintiff replyed the custom of London and that the Indenture of Apprentiship was inrolled as it ought to be c. and this was certified by the Recorder Serjeant Finch to be the custom and thereupon Iudgment was against the Defendant it is a Manuscript Jones The custom ought to have been alledged that he should have an Action of Covenant against him which is not done here and customs shall be taken strictly not by implication Moreover the Plaintiff declares for a loss not yet sustained the term not being ended Cur. The custom is sufficiently alledged to give and make good an Action of Covenant Tale remedium implies it Those words are applicable to all things relating to this matter viz. That the Master may correct him may go to a Iustice of Peace And also may have an Action of Covenant against him V. Hutt 63. 4. as against a man of full age Winch. 63. 4. And though by Common Law or the Statute his Covenant shall not bind him yet by the custom it shall But Twisden desired to sée Offley's Report As to the declaring for the loss of the term part whereof is unexpired though it has beén adjudged to be naught after a Verdict yet in this Case which is upon demurrer it may be helped For the Plaintiff may take damages for the departure only not the loss of service during the term and then it will be well enough Judgment nisi c. Jones versus Powel WOrds spoken of an Attorney Thou canst not read a Declaration per quod c. Cur. The words are actionable though there had been no special damages For they speak him to be ignorant in his Profession and we shall not intend that he had a distemper in his eyes c. Judic pro querente Anonymus THe Defendant in an Action of false Imprisonment justified the taking and imprisoning the Plaintiff by vertue of an Order of Chancery that he should be committed to the Fleet and the Plea judged naught because an Order is not sufficient It ought to have beén an Attachment he should have pleaded Quoddam breve de attachamento c. Osborne versus Walleeden REplevin The Defendant avows in right of his Wife for a Rent-charge devised to her for life by her former Husband But in the Will there was this Clause viz. If she shall marry c. he the Executor shall pay her 100 l. and the rent shall cease and return to the Executor She doth marry and the Executor does not pay the 100 l. The question was Whether the rent should cease before the 100 l. be paid Jones for the Plaintiff the rent ceaseth immediately upon her Marriage and she shall have remedy for the 100 l. in the Spiritual Court If the words had been He shall pay her 100 l. and from that time the rent shall cease It had been otherwise if she had died presently after the marriage her Executor should have had the 100 l. Brewer and Sanders for the Defendant she hath not a present interest in the 100 l. In this very Case the Common Pleas delivered their Opinion That this 100 l. ought to be paid before the rent should cease But for imperfection in the pleading we could not have Iudgment there Roll. She has no present interest in the 100 l. nor can her Executors have any and the rent shall not cease till the payment of it For first It is devised to her for life not during her Widowhood Secondly The rent issues out of the Inheritance and by the construction of the Will it shall go to the Executor for by cease in the Will is meant cease as to the Wife and the Executor is in nature of Purchasor and ought to pay the money before he has the rent and he ought to pay it out of his own Estate if he will have the rent For otherwise if it be lookt upon as a Legacy if he have no Assets she shall be immediately stript of her rent and have nothing Twisden I think the Divisors meaning was to give her a present interest in the 100 l. and if so the rent must cease presently upon the marriage But since it is to be issuing out of the Inheritance it is doubtful And since my Brothers are both of Opinion for the Avowant let him have Iudgment Then it was Objected That the Avowry was ill For it ought to have been in the Wifes name as well as the Husbands and alledged that Roll. 1 part 318. N. num 2. makes a Quaere and séems to be of opinion that Wise versus Bellent which is to the contrary is not Law V. 2 Cr. 442. 3. Twisd That was his Opinion it may be when he was a Student You have in that Work of his a common place which you stand too much upon I value him where he reports Iudgments and Resolutions But otherwise it is nothing but a Collection of Year-Books and little things noted when he made his Common Place Books His private opinion must not warrant or controul us here It has béen adjudged That the Husband alone may avow in right of his Wife Delaval versus Maschall DEbt upon a Bond the Condition whereof was That if J. S. and J. D. Arbitrators did make an Award on or before the 19. of February and if the Defendant should perform it then the Obligation should be void and then follow these words And if they do not make an Award before the 19. of February then I impower them to choose an Umpire and by these Presents bind my self to perform his Award The Defendant pleads That they did not make an Award The Plaintiff replies and sets forth an Award made upon the said 19. of February by an Vmpire chosen by the Arbitrators and alledges a breach thereof The Defendant demurs Sanders for the Defendant Here is no breach of the Condition of the Bond. For that which relates to the performing the Vmpires Award it following those words Then the Obligation shall be void is no part of the Condition and if any Action is to be brought upon that part it ought to be Covenant 2. The Award made by the Vmpire is void because made the 19. of February which was within the time limited to the Arbitrators for their power and the Vmpire could not make an award within that time because their power was not then determined as was lately adjudged in Copping versus Hornar Jones for the Plaintiff The Condition is good as to this part It is all but one Condition A man may make several Defeasances or Conditions to defeat the same Obligation Brook Condition 66. There is a continuance of this Condition It is said I bind my self by these presents which refers to the Lien before in the
Title has closed up the King so as that he ought to take issue and maintain his own Title V. 2 Cr. 651. I say therefore That the Kings declining his own Title and falling upon the others is a departure which is matter of substance and it would make pleading infinite therefore the demurrer in this Case is good 1 Cr. 105. is in point and so is Hobart's Opinion in Digby versus Fitzherbert 103. 104. and though the Iudges are two and two in that Case as it is there reported yet the whole Court agreed it afterwards So that were this a common persons Case I suppose it would be agreed on all hands But it is insisted that this is one of the Kings Prerogatives that when his Title is traversed by the party he may either maintain his own Title against the traverse of the party or traverse the affirmative of the party Pasch pr. C. 243. a. c. Answer It is true this is there reckoned up among many other Prerogatives of the King But first with reverence several of them are judged no Law as that if the King have Title by Lapse and he suffer another to present an Incumbent who dies the King shall yet present is counter-judged 3 Cr. 44. and both that and the next following point too 7 Co. 28. a. Secondly In the same Case fol. 236. there is a good Rule given which we may make use of in our Case viz. the Common Law doth so admeasure the Kings Title and Prerogatives as that they shall not take away nor prejudice any mans Inheritance V. 19 E. 4. 9. 11 H. 4. 37. 13 E. 4. 8. 28 H. 6. 2. 9 H. 4. 6. F. N. B. 152. Now my Brother Wild hath given the true Answer that when the Kings Title appears to the Court upon Record that Record so intitles the King that by his Prerogative he may either defend his own or fall upon the other's Title For in all Cases where the King either by traverse as 24 E. 3. 30. pl. 27. Keil 172. 192. or otherwise as by special demurrer E. 3. Fitz. monst de Faits 172. falls upon a Defendants Title It must be understood that the King is intitled by Record and sometimes it is remembred and mentioned in the Case Fitz. 34. That the King is in as by Office c. But Br. Preg 116. the Kings Attorney doth confess the Law to be so expresly that the King has not this Prerogative but where he is entitled by matter of Record Before 21 Jac. cap. 2. when the Kings Titles was found by any Inquisition or Presentment by virtue of Commissions to find out concealments defective Titles c. he exercised this Prerogative of falling upon and traversing the parties Titles and much to the prejudice of the Subjects whose Titles are often so ancient and obscure as they could not well be made out Now that Statute was made to cure this defect and took away the severity of that Prerogative Ordaining that the King should not sue or impeach any person for his Lands c. unless the Kings Titles had béen duly in charge to that King or Queen Eliz. or had stood insuper of Record within 30 years before the beginning of that Parliament c. Hob. 118. 9. the King takes Issue upon the Defendants Traverse of his Title and could the King do otherwise the mischief would be very great as my Brother observed both to the Patron and Incumbent The Law takes notice of this and had a jealousie that false Titles would be set on foot for the King and therefore 25 Edw. 3. St. 3. Car. 7. 13 R. 2. Car. 1. 4 H. 4. Ca. 22. enables the Ordinary and Incumbent to counterplead the Kings Title and to defend sue and recover against it But a fortiori at Common Law the Patron who by his Endowment had this Inheritance might controvert and Traverse the Kings Title and it is unreasonable and mischievous that the Crowns possessions by Lapse or it may be the meer suggesting a Title for the King should put the Patron to shew and maintain his Title when perhaps his Title is very long consisting of 20 mesne Conveyances and the King may Traverse any one of them Keilway 192. b. Pl. 3. I conclude I think the King ought to have taken Issue and he not doing it the Demurrer is good and that the Defendant ought to have Iudgment Tyrrell contra I am not satisfied but here is a Discontinuance For the Defendant pleads the Appendency of the Church only not the Chappel It is true he traverseth that the Queen was not seized of both I deny what is affirmed that the King by his Presentation of Timothy White and the present Incumbent is out of possession By the Iudgment of reversal 2 Cr. 123. 4. the Law at this day is that he cannot be put out of possession of an Advowson by 20 usurpations A Quare Impedit is an Action of Possession and if he were out of possession how could he bring it As to this Traverse It is a common Erudition that a party shall not depart and that there shall not be a Traverse upon a Traverse But the King is excepted 5 Co. 104. Pl. C. 243. a Br. Petition 22. Prerogatives 59 60 69. 116. It is agreéd where the King is in possession and where he is intitled by matter of Record he may take a Traverse upon a Traverse And there is no Book says that where he is in by matter of Fact he cannot do it Indeed there is some kind of pregnancy at least in the last of those Authorities But I will cite two cases on which I will rely viz. 19 E. 3. Fitz monstr de faits 172. which is our case The King in a Quare Impedit makes Title by reason of Awardship whereby he had the custody of the Mannor to which the Advowson belonged and that the Father dyed seised thereof c. and there is not a word that his Tytle was by matter of Record The Defendant pleads that the Father of a Ward made a Feoffment of the Mannor to him for life and afterwards released all his right c. so that the Father had nothing therein at the time of his death and that after his death he the Defendant enfeoffed two men c. and took back an Estate to himself for 10 years which term yet continues and so it belongs to him to present But he did not shew the release but demurred in Iudgment upon this that he ought not to shew the release and the King departs from his Count and insists upon that which the Defendant had confessed that he had made a Feoffmēt which he having not shewn by the release as he ought to make himself more then Tenant for life was a Forfeiture and therefore the heir had cause to enter and the King in his right and thereupon prays Iudgment and has a Writ to the Bishop Cook 86. 7. 1 Inst 304. b. The other case
against the Infant Sir Heneage Finch Solicitor General The Witnesses who swear that the Earl said He would give the Estate to her prove nothing to the purpose For he did so but upon a condition That they did not hear The after-consent of the Earls or the Countess ought not to make it good which consent at last perhaps was extorted by importunity or compassion For at first they disapproved the Marriage Marrying without consent and dying without issue are coupled in the same Line and the Estate shall as effectually pass over to the Defendant upon the one Limitation as the other For such consent is matter ex post facto and suspitiously to be scan'd For we ought in this Case by Law to proceéd strictly and not derogate from my Lord Newport's intent which plainly appears by the letter of his Will that his Grand-Child should ask consent of such he had thereby appointed to consent before her Marriage were solemnized the actual solemnization of which was an act so permanent that it would admit of no alteration or dissolution An act of such force and efficacy tending clearly and immediatly to the ruine of their Right and Title to the Estate in question and rendring it wholly uncapable of Reviver by any other means than what the Common and Civil Laws of this Realm do permit The post-consent therefore will not avail the Plaintiffs in this Court. Otherwise the Defendant claiming by this Limitation should have indeéd advantage but such as is inconsiderable being liable to alteration by the pleasure of this Court. And for a strict observation of the Testators words the same ought to be in Equity as well as at Law What great respect the old Heathens paid to the Wills of deceased persons may appear in these following Verses Sed Legum Servanda fides suprema voluntas Quod mandat fierique jubet parere necesse est The Countess saying likely in passion That she might marry whom she would c. did not amount to a dormant Warrant to her to marry without consent I am upon Conjecture still that the Plaintiff will insist upon these particulars for it looks as if they would because they read them Doubtless the primary intention of the Clause was in terrorem But the Secondary was that if she offended she should undergo the penalty His intention is to be gathered out of the words only and what ever they say the Earl intended does not press the Question Our Frée-hold is setled in us by vertue of an Act of Parliament I lay it down for a Foundation That a Father may settle his Estate so as that the Issue shall be deprived of it for Disobedience and not be relievable in Equity And now 't is not possible that any Council could advise a man to do it stronger than it is done in this Case And shall a Child break these Bonds and look Disobedience in the face here V. 1 Cr. 476. post 694. 696. If it had been only provided that she should marry with the consent c. and no further it might have been somewhat But since he goes on and makes a Limitation over c. he becomes his own Chancellour and upon this difference are all the Presidents and even those of devising portions viz. devising them over or not as I have understood Infancy can be no excuse in case of the breach of a condition of an Estate in which the Infant is a Purchasor So that nothing rests now in this Case but the point of Notice And why should not the Infant be bound to take notice in this Case as he is to take notice in case of a Remainder wherein he is a Purchasor But if notice be necessary it is not to be tried here now If we had brought an Ejectment and supposing notice had been necessary we had failed in the proof thereof should we have beén har'd for ever as by this perpetual Injunction we should be and shall it be done now without proof If we are not bound to prove Notice at Law much less are we bound to prove it here This Case is Epidemical and concerns all the Parents of England that have or shall have Children that the Obligations which they lay upon their Children may not be cancelled wholly and this Court under colour of Equity protect them in it and be a City of Refuge for relief of such the foulness of whose actions deny them a Sanctuary Pecke If Infancy would excuse such a Clause would signifie nothing For most persons especially of that Sex marry before full age The Lords give no reason why they changed their Opinions Serjeant Fountain Yelverton's Case in 36 Eliz. is a President in the Point for us and Shipdam's Case is much like it This being of a devise Land and that of Money which if it were paid the Land was to go over The grand Objection is That here is an Estate vested by a settlement which is not to be avoided or defeated But I doubt whether a man can lay such a Restraint that there shall not be Relief in any case of Emergency and Contingency Part 712. 3. V. in Leo. 37. It is a part of the fundamental Iustice of the Nation that men should not make Limitations wholly unalterable as by the Common Law men cannot make a Feé unalienable You give relief every day where there are express Clauses that there shall be no relief in Law or Equity where a thing is appointed to be c. without relief in Law or Equity you relieve against them and look upon them to be void In our Case suppose she had married a great Lord or suppose a person had brought notice of the Trustees consent would you not have given relief But secondly I deny the Assumption This Case is not so I agrée it had been well done if they had askt my Lady Newports consent But is there a word in the Will that if the Plaintiff did not he should have no relief in Equity The Estate was devised to my Lady Newport during her life so that the Plaintiff could not be in possession and she might have lived till the Plaintiff was 21 years old Could not my Lady Newport have said Have a care how you marry for you forfeit the Estate if you marry without the consent of two of us three All Ingredients and Circumstances must be taken in a matter of Equity Is it an argument to say He has no Estate therefore take away his Wifes Estate then there will be nothing to maintain her It is agréed That if the Approbation had been precedent it had been well Now she had no notice before the Marriage that it was necessary and when she had that notice she got the approbation and that though subsequent is good enough because it was askt and gotten as soon as she had Notice that she ought to have it The Will is hereby sufficiently observed for the intent of the Will was that she should have such an
tail and the remainder over is so too and both these parties are in aequali gradu to the Devisor and therefore their being both in a parity it would be hard to take the Estate from him to whom and in whose Scale the Law hath thrown the advantage 3 It appears by the body of the Will that the Earl did as really intend it should go over if she married without consent as if she died without Issue for they are both in the same clause There may be as much reason to turn it into a Fee-simple in case as she had died without Issue as in this case For so I doubt the penning of this decretal Order does And 4 I rest upon this It is a Case without a President I remember after that Lanyett's Case had been adjudged that 6 Car. there was a Case I suppose Saunders versus Cornish of a Limitation in Tail Cro 3 part fo 230 it was of a Lease for years and so was adjudged void and then a devise over and it was adjudged void And the Iudges said so far it is gone and we will go no further because we do not know where it will rest I know there is no intrinsical difference in Cases by Presidents But there is a great difference in a Case wherein a man is to make and where a man sees and is to follow a President in the one Case a man is more strictly bound up but in the other he may take a greater liberty and Latitude For if a man be in doubt in aequilibrio concerning a Case whether it be equitable or no in prudence he will determine according as the Presidents have been especially if they have been made by men of good authority for Learning c. and have been continued and pursued Here must be some boundary or we shall go we know not whither It were hard a Court of Equity should do that that is not fit to be done in any Court below a Parliament The Presidents do not come home to the Case Most of them are in case of money Legacies and in some of those Cases we may give allowance in respect of the Law of another forum to which they belong But this is in case of Land only vid ' Swynborne 4. Co. 12. chap. indeed he is no authority but there is a very good Exemplification of this matter 5 I shall consider the allays and circumstances which are observed and offered to qualifie this Case and induce relief 1 'T is said that this clause was only in terrorem and some Witnesses have been examined to prove it But I am not satisfied how collateral averments can be admitted in this case For then how can there be any certainty 2 Cro 145. A Will will be any thing every thing nothing The Statute appointed the Will should be in writing to make a certainty and shall we admit collateral averments and proofs and make it utterly uncertain 2 'T is said in this Case the effect of the Proviso has beén obtained for the Trustees have now declared their consent I must say it is not full for they do not say they would have consented but that possibly such reasons might have been offered as they should have done it And possibly I say not They like good men have only declined the shewing an ineffectual contradicting of a thing which is done and cannot now be recalled undone or altered Besides if there had been but a circumstantial variation the consent afterwards might have been somewhat But here it is in the very substance In the Case before cited at the Bar by Mr. Serjeant Ellis where the consent was to be had in writing and it was had only by Paroll there was great Equity that it should be relieved because it was only a provident circumstance and wisdom of the Devisor viz. for the more firme obliging the party to ask consent which the Devisor considered might be pretended to be had by slight words in ordinary and not solemn Communication or else in passion and heat as in this case when the Plaintiff would not consent to the approved Marriage with the Lord Morpeth the Countess said she might marry where she would Which words imported a neglect of care for the future over the Plaintiff because she would not be ruled by the Countess in accepting the tender of so commendable a Marriage as also for the benefit of the Devisee in the Case aforesaid That in case the Devisee did marry with the consent of the Trustee he might not after through prejudice c. avoid it by denial of such consent and so defeat or perplex the Devisee for want of proof of such his consent 3 'T is said the party is an Infant Why an Infant is bound by a Condition in Fact by Law 't is true we are now in Equity But in Equity since this refers to an Act which she though an Infant is capable of doing viz. to marry it were unreasonable that she should be able to do the Act and not be obliged by Equity to observe the Conditions and Terms which concern and relate to that Act. So that it is all one as if she had been of full age The Statute of Merton cap. 5. provides that Usury shall not run against Infants and yet the same Statute cap. 6. appoints That if an Infant marry without the Licence of his Lord c. he shall forfeit double the value of his Marriage and it is reasonable because Marriage is an Act which he may do by Law while he is under age 4 As to the point of Notice 1 Whether Notice be requisite or no in point of Law I will not determine But I must needs say that it must be referred to Law But 2 If it be not requisite in Law how far a Court of Equity might relieve for want of it I will not now take upon me to determine I will not trench upon matters Gratis of which I know not what will be the consequence But I conceive in this case the Fact is not yet settled whether there were notice or not and it were a hard matter That because no Notice is here proved it should be taken for granted there was none For here are several circumstances that seem to shew there might be Notice and a publick voice in the House or an accidental Intimation c. may possibly be sufficient Notice I shall therefore leave it as a fit thing to be tryed and till that the case in my understanding is not ripe And therefore I will add no more I think this Decree ought to be altered if not set aside But as this Case is there ought to be no relief Vaughan Chief Justice I shall conclude as my Lord Chief Baron did That as this case is there ought to be no relief I will single out this case from several things not material to it as my Lord Chief Baron did c. I think if Land be devised on Condition to pay
in the Mannor 232 R. Recovery sc Common Recovery VIde Gardian Whether can an Infant that suffers a Common Recovery reverse it when he comes of age 49 What shall be bar'd by a Common Recovery and what not 108 109 c. A Common Recovery suffered of Lands in Shrewsbury and the Liberties thereof good to pass Lands in the Liberties of Shrewsbury though lying out of the Town of Shrewsbury 206 The pleading of a Common Recovery V. 218 219 There are two Parishes adjoyning Rippon and Kirby-Marstone and within those two Parishes are two Towns of the same names A man has Lands within the Parishes but not within those Towns and suffers a recovery of Lands in Rippon and Kirby-Marstone generally but the Deed to lead the Uses mentions the Lands as lying in the Parishes of Rippon and Kirby-Marstone 250 c. Recusance and Recusancy An Information for not coming to Church may be brought upon the Stat. of 23 Eliz. reciting the clause in it that refers to 1 Eliz. 191 To an Endictment for Recusancy Conformity is a good Plea but not to an Action of Debt 213 Reddendo singula singulis V. 33. Release A man makes a Release of all Demands and Titles quid operatur 99 100 Reparations of Churches Parishioners how compellable to repair their Parish-Church 194 236 237 The greater part of the Parish shall conclude the Lesser for enlarging the Church as well as repairing it 236 237 The Chancel of a Parish-Church whereof the Rectory is Impropriate is out of repair Whether can the Ordinary sequester the Tythes 258 259 c. Request An Action for keeping a passage stopt up so that the Plaintiff could not come to cleanse his gutter ought the Plaintiff to lay a Request 27 Reservation A Heriot or 40 s. reserved to the Lessor and his Assigns at the Election of the Lessor his Heirs and Assigns yet cannot the Devisee of the Lessor have either the Heriot or 40 s. 216 217 Return false Return Action upon the Case against a Sheriff for that he arrested such a one at the Plaintiffs Suit and suffered him to go at large and at the day of the return of the Writ returned that he had his body ready The Defendant demurs generally 57 In a like Action the Defendant pleads the Stat. of 23 H. 6. cap. 10. and adjudged against the Plaintiff 239 240 V. Action upon the Case Robbery An Action lies against the Hundred upon the Statute of Winchester though the Robbery were not committed in the High-way 221 S. Scandalum Magnatum MY Lord _____ is an unworthy person and does things against Law and Reason Actionable 232 233 c. Scire Facias Scire facias upon a Recognizance in Chancery there is a demurrer to part and issue upon part Judgment must be given in the Court of Kings Bench upon the whole Record 29 Scias facias against Executors to have execution of a Judgment obtained against their Testator they plead That a Ca. Sa. issued against him upon which he was taken and that he paid the money to the Warden of the Fleet who suffered him to go at large This held to be no plea. 194 Seal Whether does the Seals being broken off invalidate a Deed c. given in Evidence 11 Seisin of an Office What shall be a Seisin of an Office and what not 122 123 Serjeants at Law What Serjeants Rings ought to weigh 9 Priviledge of Serjeants 226 Statute-Merchant and Staple V. Administrators Summons V. 197. Supersedeas The very sealing a Writ of Error is a Supersedeas to the Execution 28 The Stat. of 13 Eliz. cap. 9. where it is said there shall be no Supersedeas c. hath no reference to the Court of Kings Bench but only to the Chancery 45 A Writ of Error in Parliament in what Cases is it a Supersedeas and in what Cases not 106 285 V. 112 Whether is a Sheriff obliged at his years end to deliver a Writ of Supersedeas over to the new Sheriff 222 Survivor The Condition of a Bond is That if the Obligor shall pay yearly a sum of money to two strangers during their two lives that then c. Resolved that the payment is to cease upon the death of either of them 187 T. Tenant in Common TEnant in Common sues without his Companion 102 Tender and Refusal Where ever Payment will do Tender and Refusal will do 77 78 Toll Toll-thorough 47 48 V. Prescription Toll-thorough and Toll-traverse 231 232 Trespass Justification in Trespass 75 Whether does an Action of Trespass lie for immoderately riding a lent Mare 210 In an Action of Trespass it appears upon Evidence that the Fact if true was Felony yet does not this Evidence destroy the Plaintiffs Action Otherwise if it had appear'd upon the Declaration 282 283 Trover and Conversion A Sheriff may have an Action of Trover and Conversion for Goods taken by himself in Execution upon a Fieri facias 30 31 Trover and Conversion decem paririum tegularum valorum Angl. of ten pair of Curtains and Vallance held good 46 47 V. 135 136 c. many Cases of Trover and Conversion and of pleading in that Action Trover and Conversion de tribus struibus foeni 289 290 Trial. Motion for a new Trial. 2 An Action of Covenant is laid at York issue is joyn'd upon a matter in Barwick where shall the Trial be 36 37 c. Tythes Turfe Gravel and Chalk not tythable 35 If the Endowment of the Vicarage be lost small Tythes must be paid according to Prescription 50 Tythes of Cattel feeding in a Common where the Parish is not certainly known 216 A modus to the Rector is a good Discharge against the Vicar ibid. A Parson shall not have Tythe both of Corn and of Sheep taken in pro melioratione agriculturae infra terras arabiles c. ibid. V. tit Custom V. Venire Facias A Venire Facias returnable coram nobis apud Westm held good 81 Venue A Venue refused to be changed because the Plaintiff was a Counsellor at Law 64 Verdict When a Declaration will bear two Constructions and one will make it good and the other bad the Court after a Verdict will take it in the better sense 42 43 Matters helpt after Verdict 70 74 75 V. tit Jeofails View A Jury never ordered to View before their appearance but in an Assize 41 Ville What makes a Ville in Law 78 117 118 Visitation of Churches What Ecclesiastical Persons are visitable and what not 11 12 Vniversity Indebitat assumpsit against a Colledge in Oxford the Chancellor of the University demands Conusance whether is his Cause within the Priviledge of the University or not 163 164 Voluntary Conveyance What shall be said to be a Voluntary Conveyance within the Statute of Bankrupts and what not 76 Voucher A Tenant in an Assize avoucheth out of the line is it peremptory or not 7 8 Vses V. Covenant to stand seised V. 175 176 c. A man granted a Rent to one to the use of another and Covenants with the Grantee to pay the Rent to him to the use of the Cestuy que use The Grantee brings an Action of Covenant 223 Whether is the reservation of a Pepper-Corn a sufficient Consideration to raise an Use or not 262 263 Vsury V. 69. W. Wages IF a Mariner or Ship-Carpenter run away he looseth his Wages due 93 Warrant of Attorney Judgment enter'd of another Term than is expressed in the Warrant of Atturney 1 Warranty Feme Tenant in tail remainder to her Sisters in Fee the Tenant in tail and her Husband levy a Fine to the use of them two and the Heirs of the body of the Wife the remainder to the right Heirs of the Husband with Warranty against them and the Heirs of the Wife The Wife dies without issue 181 He that comes to Land by the limitation of an Use may rebut 192 193 Waste What is Waste and what not 94 95 Will. A Will drawn in the form of a Deed. 117 Whether must the Will of a Feme Covert be proved 211 The pleading of a Will of Land 217 Witnesses Who are good Witnesses and who are not 21 73 74 107 283 FINIS