Order And Wild said It was well Westminster-Hall Doors were open Kent versus Derby INdebitatus Assumpsit The Plaintiff declared that the Defendant being indebted to him in a certain sum pro diversis mercionis ante tunc venditis deliberatis ad requisitionem of the Defendant to a Stranger did promise to pay c. After Verdict for the Plaintiff it was moved in Arrest of Judgment that this was but a Collateral Promise and that no Indebitatus Assumpsit would lie for the Debt was from the person to whom the Goods were sold Wild and Jones held the Action well brought and cited an Action sur indebitatus Assumpsit lately in this Court against one for Money promised in Marriage with his Sister Vid. R. 120 122. Sed Rainsford Chief Justice contra But the Plaintiff had Judgment Termino Sanctae Trinitatis Anno 29 Car. II. In Banco Regis Howlet versus Carpenter THe case upon a Special Verdict in Ejectment was this a Copiholder of a Dean and Chapter levied a Fine with Proclamation and five years passed without any Seizure or Claim by him that was Dean at the time of the Fine levied and whether the succeeding Dean was barred was the question And the Court at the first opening held clearly that he was not for if so the Statutes 1 13 Eliz. which restrain the Alienation of the Church Revenue would be of small effect 11 Co. Magd. Colledge's Case The Company of Ironmongers versus Nailer IN Trespass upon Not guilty a Special Verdict was to this effect that Nailer being one of the Officers for Collecting of the Duty of Hearth Money distrained for a certain Sum accruing for the Chimneys of a new built House which had never been inhabited neither did it appear that there had been any account of the Chimney's thereof returned into the Exchequer There were made three questions First Whether any thing shall be paid for Chimneys in such new built Houses Secondly Whether the Distress can be for that Duty in other places than at such Houses Thirdly Whether there can be any Distress taken before such time as the account of the Chimneys be returned into the Exchequer As to the first the whole Court were clear of Opinion that such new Houses which were never inhabited were chargeable for the words of the first Act are express viz. That every Dwelling and other House and Edifice other than such as are after excepted shall pay And there is no exception that extends to such House altho' it were objected that the Proviso in the Act of 14 is that the Duty shall be chargeable only on the Occupier and every Clause in the Act runs upon Occupiers and the Act of 15 recites the Kings Revenue to have been much obstructed for want of just Accounts of Chimneys under the hands of the Occupiers and the Act of 16 charges the next Occupiers with the half years payment where the former Occupâ—er removed before it grew due which implies if an House stood empty for longer time it should not be paid Again it is appointed to be demanded at the House and in case of refusal to distrain which shews an intention that it should be inhabited But it was answered That the words before mentioned were so full as not to be avoided and that there were sundry Clauses also in the Act which did import an intention that empty Houses should pay and so hath been the practice ever since the Act and that there were no manner of difference between these Houses which were new built and other Houses that in case there was no Tenant the Owner was understood to be Occupier as if the Owner grants an House in his Occupation it would be well tho' he did not inhabit it himself if it were inhabited by no other The Act of the 13 and 14 appoints notice to be fixed upon the Door for an account to be given in case there be no Inhabitant and six days after such notice to enter and take account which shews they meant empty Houses should be chargeable and why not as well as for Chimneys whereof no use is made As to the second Point the Distress it well taken tho' it doth not appear to be after an account made into the Exchequer for the duty accrues before and that is provided only that the King might be apprized of the number of Chimneys and so there might be a check upon the Collectors when they make their Accounts neither is any Process appointed to go out upon such Return of the number of Chimneys The Statute of 21 Jac. appoints Informers to be Sworn but if an Informer be not Sworn 't is but a neglect in the Officer The Proceedings are notwithstanding sufficient Mo. 447. where 21 H. 8. appoints the Enrolments of Dispensations in Chancery yet if not done it does not invalidate the Dispensation Thirdly The Distress was resolved to be well taken being in the Kings Case for an Act of Parliament shall be expounded according to the reason of the Law in such Cases Note Livesay the Secondary craved the Opinion of the Court whether he should tax treble Costs in this Case for the Act of 14 gives treble Costs where any person is prosecuted for what he should do in execution of that Act c. Now that Act appointed the Constables c. to Collect and Execute the Act. But now by vertue of the subsequent Acts for the Chimney Money the Collection c. is by other persons and the doubt is Whether they can have treble Costs by the Act of 13 and 14. But the Attorney General who was of Counsel with the Defendant said he would not insist upon treble Costs at this time because this Cause was brought on by consent for the determination of the doubt about new empty Houses paying but desired that it might be without prejudice Baker versus Bakers A Prohibition to the Delegates The case was that Administration had been granted to the Wife upon which an Appeal was brought by the Mother of the Intestate upon this Allegation in t ' al' That the Wife had Covenanted that she would not intermeddle in the Administration in regard she had been otherwise sufficiently provided for for it was said that the Ecclesiastical Judges had not to do with such matter But it was objected on the other side that it fell incidently into the principal matter whereof they had Conuzance but they might be prohibited if they judged the effect of it contrary to our Law neither did it appear that the Delegates would admit of this Allegation and there were no presidents for a Prohibition quia timer But on the other side it was said that there would go a Commission out to examin this matter of course before the Judges Delegates should sit to hear the merits of the case and that would take up so much time that many of the Goods being bona peritura would be lost but note the Ecclesiastical Judges may provide for the
an one carries an Evidence of fraud yet is not upon that account only always to be reckoned fraudulent or to be avoided by a Purchaser upon a valuable Consideration Thirdly Whereas it was objected That the Trust of the Term which was but a Chattel could not be Entailed and therefore the Term was liable to the Rent notwithstanding the Assignment of it and limiting the Trust as before It was answered and resolved by the Court that if it had béen a Term in Gross in F. D. the Trust of it could have been no more Entailed than the Term it self but F. D. having the Term in Point of Interest and at the same the Trust of the Inheritance might Entail the Trust of the Term to wait upon the Inheritance and that the Chancery does every day allow which they should take notice of But then it was objected that he ought to have limited the Trust of the Inheritance and of the Term both together but F. D. by a distinct Clause in the Deed limits the Trust of the Term which divides it and makes it independent upon the Inheritance the Trust of which he limits by another Clause To that it was said by the Court that tho' the Limitations were by several Clauses yet all must be taken as one entire Conveyance And Hale said that in 1646 a Lease for years was assigned and the Trust of it Entailed and two days after the Trust of the Inheritance Entailed in the same manner and it was held by the best Counsel then in England that tho' this were done by several Deeds and at several times yet being in pursuance of one Agreement that all was to be taken as one entire Act according to the Case of 17 Jac. where a Fine was levied to Lessee for years with an intent that he should suffer a Recovery which was had the Term following and resolved that his Term was not drowned The Jury hearing the Opinion of the Court found for the Plaintiff for all save a 12th part for so much was drowned and surrendred by the Assignment of F. D. to Sir W. S. one of the six Joynt-tenants of the Reversion Wood versus Coat AN Action for words That the Defendant being indicted of a forcible Entry at the Sessions and the Plaintiff produced as a Witness for the King and Swore nothing but what was true the Defendant after habens colloquium of the said Oath said The Plaintiff took a false Oath against me at the Sessions innuendo the said Oath c. After Verdict for the Plaintiff it was moved That the Action did not lye for the Defendant might mean an Extrajudicial Oath In Pritchards Case 2 Rolls where one said of him He took a false Oath against me at the Assizes It was held that the Action did not lye Sed non allocatur for in that case there was no colloquium laid which is alledged in this case and shews to what the words spoken did relate Bradnox Case A Habeas Corpus was brought to remove the Body of Broadnox who was taken by Process upon a Plaint exhibited in the Court of the Sheriffs in London and it was returned That time out of mind the Mayor Aldermen and Common Council of the City have had the Government and Regulation of Trade within the City and power to make By laws concerning the same and that they had made a By-law that there should be but 420 Carrs allowed to work within the City all which should be Licensed by the President of Christs Church Hospital and that there should be paid for the License of every Carr 1 l Fine and 17 s per annum to the said President to be employed for the use of the Poor within the Hospital and that none should use a Carr without such License under a certain penalty to be recovered c. Provided That all persons may send their own Carrs to the Wharfs c. and carry Goods in their own Carrs from Wharfs except such as shall be Traders or Retailers in Fuel That B. without such License wrought with a Carr pro lucro suo proprio and for the penalty forfeited thereupon a Plaint was levied against him c. It was prayed that there might be no Procedendo in this Case for tho' the By law should be admitted to be good having a Custom to warrant it as was ajudged in this Court 19 Car. nunc between Player and Jenkins yet it appears that the Plaint is insufficient for in that no Custom is alledged and in 1 Rolls 364. such a By-law to limit the number of Carrs was held void for there no Custom is alledged to ground it upon and then a By-law cannot restrain Trade Again 't is unreasonable that such as Trade in Fuel should not be permitted to bring home the Wood which they buy in the Country in their own Carts or to carry it out to their Customers for tho' they might limit the number of Carmen which in too great a multitude would be a Nusans and infest the Streets yet they cannot restrain a Man from using his own Carrs to carry his own Commodities As to the First The Court were of Opinion that it was not necessary to mention the Custom in the Plaint for 't is Lex loci and they take notice of their own Customs in their own Courts As in Norwich the Custom is that in Debt upon a Specialty the Debtor fatetur Scriptum sed petit quod inquiratur de debito and no Custom is set forth in the Record to warrant that But here in the Habeas Corpus they have returned the Custom which shews they had good cause to proceed upon their Plaint for it hath béen often resolved that Custom may create a Monopoly as the case in the Register is a Custom was that none should exercise the Trade of a Dier in Rippon without the Archbishop of Yorks License As to the Second the Court doubted whether this By-law could be adjudged reasonable or good because it would restrain the Woodmongers from bringing their Wood c. home in their own Carrs so that tho' they brought it in the Country Carts as far as the Liberties of the City they must then unload and put it in City Carrs which would be extreamly inconvenient and so it would be if they should send City Carrs to fetch it and tho' it might be reasonable to prohibit them carrying their Commodities out in their own Carrs that they might not have so great an opportunity to cheat in their Measures yet there could be no Colour to restrain them from bringing them in Et Adjornatur Cuts versus Pickering UPon a Trial at Bar one Baker who had been Solicitor for Pickering was produced as a Witness concerning the Razure of a Clause in a Will supposed to be done by Pickering The Court were moved Whether he could be Examined touching this because having been retained his Solicitor he should by reason of that be obliged to keep his Secrets But it
business to enquire of the Condition of her whom he will make his Wife Then the next thing to be considered is the Infancy of the Defendant and that is nothing in this Case Porter who was the probablest person to give notice is found to be an Infant too Conditions in Fact bind Infants Again the Condition here relates to an Act which she is capable of doing The Statute of Merton which Enacts Non currant usurae c. whereby Infants are exempted from Penalties yet in another Chapter gives the Forfeiture of the said double value to the Lord where his Ward Marries without his consent 'T is a restraint laid upon her in a matter proper for her Condition and with respect to her Condition that being and Infant she might advise with her Friends about her Marriage The Cases which have been objected do not come to this Case as the Opinion in Sanders and Carwells Case which might be good Law if it could be known what that case was for the words might either explicitly or implicitly require notice as if they were if he refused to pay c. or it may be no time might be set for payment for in Molineux Case there Rents were granted and after a Devise for the payment of them which naturally lie in demand Secondly There it concerned the younger Children to give notice for the Rents were not only to be paid to them but upon failer of payment the Land was Devised to them So that was a Concurrence of concern in them as to the performance of the Condition and the Estate they should acquire by the Breach Whereas the Plaintiff in this Case is not concerned in the performance of the Condition Thirdly The penning of the Condition were quite differs for 't is upon default of payment which implies notice must be first had In Frances Case there would have been no need of notice if the Devise had not béen to the Heir which is the only thing wherein it differs materially from this Case In Alfords Case the debate was occasioned by the special penning for it was thus that if thorough Obliviousness the Trusts should not happen to be performed Now there could be no Oblivion of that they never knew therefore there is some Opinion there that the Mayor and Citizens of L. ought to have had a precedent notice yet the Judgment is contrary for they could not have been barred by the Fine and Non-claim if notice had been necessary to the Commencement of their Title and 't is not found whether those to whom the Estate was devised before had notice so that this cause proves rather that there needs no notice in this case than otherwise Wherefore the Plaintiff must have his Judgment When my Lord Chief Justice had concluded Rainsford said he had spoken with Justice Moreton who declared to him that he was of the same Opinion Fitzgerald versus Marshall ERror of a Judgment given in the Kings Bench in Ireland in affirmance of a Judgment removed thither by Error out of the Common Pleas in Ireland By the Record it appeared that the Writ of Error to the Common Bench was directed Rob. Booth Militi Socijs suis quia in Recordo processu ac in redditione Judicij loquelae quae suit coram vobis Socijs vestris And the Judgment certified appeared to be in an Action commenced in the time of Sir R. Smith who died and Sir R. Booth made Chief Justice in his place before Judgment given And the Court here were of Opinion that the Record was not well removed into the Kings Bench there by that Writ which commanded them to remove Recordum loquelae coram R. Booth whereas the loquela commenced before R. Smith and the Titling of the Record is in such case placita coram R. Smith c. tho' some of the Continuances might be entred coram R. Booth and the Judgment given in his time and for this Cause the Judgment given in affirmance in the Kings Bench there was reversed Sir Samuel Sterling versus Turner ERror of a Judgment in the Common Bench in an Action upon the Case where the Plaintiff declared upon the Custom of London of Electing of two Men in the Office of Bridge-masters every year by the Citizens assembled in a Common Hall and a Custom that if two be Competitors he that is chosen by the greatest number of Votes is duely Elected and that if one in such case desire the Polls to be numbred the Mayor ought to grant the Poll. And shews that there was a Common Hall assembled the 18 of October 22. Regis nunc Sterling being Mayor and that then the Plaintiff and one Allet stood as Competitors to be chosen to that Office and avers that he had the greatest number of Voices and that he affirmed then and there that he had the greatest number which the other denying he requested the Mayor that according to the Custom they might go to the Poll and the Defendant not minding the Execution of his Office but violating the Law and Custom of the City then and there did maliciously refuse the numbering of the Polls but immediately made Proclamation and dismissed the Court by which he lost the Fees and Profits of the Place which he averred belonged unto it Vpon Not guilty pleaded and Verdict for the Plaintiff after it had béen several times argued in Arrest of Judgment that this Action did not lie it was adjudged for the Plaintiff by Tyrrel Archer and Wyld Vaughan dissenting And now Error was brought and assigned in the matter of Law and argued for that it was incertain whether the Plaintiff should have been Elected and that he could not bring an Action for a possibility of damage and this was no more not being decided who had the greatest number of Voices But the Court were clear of Opinion that the Judgment should be affirmed for the Defendant deprived the Plaintiff of the means whereby it should appear whether he had the greatest number of Electors or no. And Hale said it was a very good President and so it was adjudged by both Courts One D. of Bedfordshire Esquire was indicted of High Treason for coyning a great number of counterfeit pieces of Guinnies of Gold 23 Regis nunc and being Arraigned at the Bar he pleaded the Kings Pardon which was of all Treasons and of this in particluar but did not mention that he stood indicted Twisden said that my Lord Keeling was of Opinion that such a Pardon was not good But Hale said it might be well enough in this case but in case of Murther it is necessary to recite it because of the Statute of 27 E. 3. 2. vid. 10 E. 3. 2. 14 E. 3. 15. and so it was allowed The Lady Chesters Case A Prohibition was prayed to the Prerogative Court of Canterbury Sir Henry Wood having devised the Guardianship of his Daughter by his Will in VVriting according to the Act of this King to the Lady Chester his
of Wood he hath the effect of his Grant But Trees differ in value exceedingly from each other Bolton versus Cannon IN Debt against an Executor for Rent Arrere in his own time in the debet detinet The Defendant pleads that the Rent is more worth than the Land and that he tendred a Surrender before the time for which the Rent is demanded and that the Plaintiff refused to accept the Surrender and that he had fully administred and so demands Iudgment of the Action The Plaintiff replies that there was Rent Arrear to him and that therefore he was not bound to accept of the Surrender and to this the Defendant Demurrs The Court said First That an Executor that does intermeddle cannot wave a Lease or any other part of the Testators Estate for he cannot assume the Executorship for part and refuse for part Secondly That in case the Land be not more worth than the Rent it is a good Plea to an Action of Debt in the debet and detinet for he is to be charged in the detinet only tho' where the Rent is of less value he may be charged in the debet detinet for that which is accrued in his own time according to Hargraves Case 5 Co. Thirdly The doubt here is that the Defendant having waved the material part of his Plea viz. That the Rent exceeded the value of the Land and relied upon his tender of a Surrender which is nothing to the purpose whether Judgment can be here for him and that otherwise his Plea is double but because the Plaintiff hath not demurred to that but answered only to one part of it the Defendant might well Demurr upon the Replication because it does not answer all contained in the Plea for unless the party Demurrs for doubleness he is bound to answer all the matters alledged Et Adjornatur But being this Term moved again Iudgment was given for the Plaintiff because the Defendant relinquished the material part of his Bar and offered matter meerly frivolous Cartwright versus Pinkney TEnant for years Surrenders to the Lessor reserving a Rent the question was Whether it was a good Reservation And held that it was upon the Contract and that Debt lay after the first day was incurred wherein it was reserved to be paid for it was in the nature of a Rent and not of a Sum in Gross Ante Wilson and Pinckney Anonymus IN Trespass for Fishing in his several Fishery pisces cepit After a Verdict for the Plaintiff it was moved in Arrest of Judgment that the Plaintiff ought to have alledged what kind of Fishes and the number of them as in Playters Case 5 Co. is But for that it was said on the other side that at that time they were more strict in the certainty of pleading than since for now and indebitat ' Assumpsit for Work done or Goods sold is allowed without further certainty And that however the Oxford Act 15 Car. 2. here helped it for tho' this be none of the defects there enumerated yet the words of the Act being That Judgment shall not be arrested for any other exception that doth not alter the nature of the Action or Tryal of the Issue shall extend to this Case But the Court were of Opinion that none of the Acts had aided this Case in regard that there was not so much as the number of the Fishes expressed as if a Man should bring Trespass for taking of his Beasts and not say what But Hale said Trover for a Ship cum velis had been allowed because all made but one aggregate Body both the Ship and Sails But Trover pro velis would not be good Vid. 2 Cro. 435. Trespass quare clausum fregit Spinas cepit and 3 Cro. 553. Child and Greenhills Case Dr. Webb versus Batchelour al' IN Trespass for taking so many Cowes upon Not guilty a Special Verdict was found That an Act of this King for repairing of the High-ways appoints that such persons as keep Carts and Horses c. should send them at certain times to assist in the repairing of the Ways not having a reasonable excuse and that warning was given to the Parishioners of the Parish whereof the Plaintiff was Parson to send in their Carts and that the Plaintiff omitting to do it a Justice of Peace made a Warrant to the Defendant to distrain him according to the Authority given by the Act c. It was alledged for the Plaintiff First That Clergymen were not obliged by this Act for Ecclesiastical Persons have always had immunities from such charges as Pontage Murage c. and shall not be comprehended in the general words Parishioners Secondly That in regard the Act allows an excuse the Justice of the Peace ought to have caused the Plaintiff to have appeared before him to have seen whether he had an excuse before he could have made his Warrant and tho' the Officer that executes the Process of a Court of Record be indemnified where the proceeding is Erroneous yet 't is not so where the proceeding is not of Record as the 10 Co. in the case of the Marshalsey 3 Cro. 394. Nicholls versus Walker and Carter Where a Warrant was made by a Justice of the Peace to distrain for a Poors Rate Trespass was maintained against the Officer that executed the VVarrant because the Plaintiff was not chargeable as an Inhabitant of the Parish for whose Poor the Rate was made Curia contra 1. The Clergy are liable to all publick charges imposed by Act of Parliament and that hath been resolved as Hale said upon debate before all the Judges 2. The Officer that executes the VVarrant though unduely made for the cause alledged is not answerable for he is not to judge but to execute the matter it being within the Jurisdiction of the Justice of the Peace and 't is not like the Case in the 3 Cro. for there the Churchwardens And Overseers of one Parish distrained in another Parish which was out of the limits of their Authority but in 14 H. 8. 16. where a Justice of the Peace made a VVarrant to Arrest a Man for Felony which in those times was held beyond his power tho' otherwise since unless there had been some Indictment of Record yet 't is there held the Officer that executes such VVarrant is not punishable Wherefore Judgment was given here for the Defendants Termino Sanctae Michaelis Anno 27 Car. II. In Banco Regis Anonymus A Judgment was removed by Error into this Court and affirmed the Capias that is Awarded thereupon must mention it and not be general as upon a Judgment originally in this Court and if such a Writ issues out the Court will upon motion grant a Supersedeas and there needs no Writ of Error in Adjudicatione Executionis tho' it was taken out in a former Term. Anonymus LIbel was by the Churchwardens of c. in the Ecclesiastical Court for 1 l 6 s 8 d upon a Custom
Trover inter al' de uno Instrumento ferreo Anglicè an Iron Range After Verdict for the Plaintiff it was moved in Arrest of Judgment that Instrumentum ferreum was too uncertain and that a Range was the same with a Grate for which Crates was a proper Latin word Sed non allocatur For Crates is such a Grate as is before a Prison But a Fire Range was not in use in the Romans time and therefore Instrumentum ferreum is well enough with the Anglicè Twisden said Trover de septem libris has been held good without saying what they were Blackman's Case IT was assigned for Error that the Venire was to Summon probos legales homines instead of liberos and so a material Variance and alledged that many Judgments had been Reversed for it But the Court here being informed that the Presidents were generally probos instead of liberos would not allow the Exception The King versus Armstrong Harrison al' c. THey and others were Indicted for Conspiring to Charge one with the Keeping of a Bastard Child and thereby also to bring him to Disgrace After Verdict for the King it was moved in Arrest of Judgment that the bare Conspiring without Executing of it by some Overt act was not subject to Indictment according to the Poulterers Case in the 9 Co. And it doth not appear that he was actually Charged with the Keeping of a Child nay 't is alledged 't was but a pretended Child neither was he by Warrant brought before a Justice of Peace upon such an account but only that they went and affirmed it to the party himself intending to obtain Money from him that it might be no further disclosed Sed non allocatur For there was as much Overt act as the nature and design of this Conspiracy did admit in regard there was no Child really but only a Contrivance to Defame the Person and Cheat him of his Money which was a Crime of a very heinous nature Then it was alledged That this was tryed at the Old-Baily commonly called Justice-Hall in London and the Jury came de Warda de Faringdon extra London which appeared to be out of the Iurisdiction Sed non allocatur For the Name of the Ward is Faringdon extra to distinguish it from Faringdon infra but both are known to be in London Whereupon Judgment was Entred up against them and Armstrong which appeared to be the principal Offender was Fined 50 l and the other 30 l Burrough's Case HE and others were Indicted for that they being Church-wardens Overseers of the Poor and a Constable did contemptuously and voluntarily neglect to Execute diversa Praecepta Watranta directed to them by the Bayliffs of Ipswich being Justices of the Peace under their Hands and Seals c. It was moved to quash it for that the nature and tenour of the Warrants were not expressed in the Indictment For unless the parties know particularly what they are charged with they cannot tell how to make their Defence And for that Reason it was quashed by the Court. Note The Court never gives Costs for not Executing of a Writ of Enquiry of Damages tho' Notice be given Anonymus AN Indictment of Forcible Entry into certain Lands in the possession of J.S. was quashed for not shewing what Estate J.S. had and tho' the word Disseisivit were in the Court held that tho' that might be taken to imply a Freehold yet it was not sufficient Vid. Mo. 481. And another was quashed because it was said possessed pro termino But the Court held that if it had been pro termino annorum tho' not said for how many years it had been well Note A Bayliff caught one by the Hand whom he had a Warrant to Arrest as he held it out of a Window And the Court said that this was such a Taking of him that the Bayliff might justifie the breaking open of the House to Carry him away Kent versus Harpool AN Ejectment The Case came hither by a Writ of Error out of the Kings-Bench in Ireland and divers Points were in it which concerned the Act for Settlement of Lands in Ireland But the Case was as to the great Point at Common Law to this effect Father Tenant for Life Remainder to the Son for Life Remainder to first Son of that Son who was not born Remainder to the Heirs of the Body of the Father the Father died before the first Son was born and Whether the Descent of the Entail to the Son did prevent the Contingent Remainder was the Question It was Argued that it did not because the Inheritance came to the Son by Act in Law And the Opinion in Cordal's Case in the 1 Cro. 315. was cited the great Reason in Chudley's Case and other Cases wherein Contingent Remainders have been held to be destroyed was for the preventing of Perpetuities which would have been let in if Contingent Remainders had been preserved whatever Act had been done by those which had the Actual Estate But there is no such necessity of making the life Construction upon Acts in Law If Lessee for years makes the Lessor Executor the Term is not drowned But if the Executor that hath a Lease purchases the Inheritance the Term is gone because it is his own act but in the other Case the Law shall not work that which must be construed a Devastavit In Lewis Bowles's Case in the 11 Co. and Co. Litt. where there is an Estate for Life Remainder to the first Son Remainder in Fee to the Tenant for Life the Estates at first close and open again upon the Birth of the first Son which should take the Remainder And so it may be here But the Court seemed to be of Opinion that the Contingent Remainder was destroyed by the Descent of the Estate Tail And Rainsford Chief Justice relyed upon Wood and Ingersol's Case in the 2 Cro. 260. where a Devise was to the first Son for Life Remainder to the Son which should survive and there three Judges against one held that the descent of the Fee upon the first Son prevented the Contingent Remainder to the Survivor Et Adjornatur Note In Lewis Bowle's Case the Estates were united at the first upon making of the Conveyance Smith versus Tracy IN a Prohibition the Case was One died Intestate and whether his Brother of the Half-blood should come in for Distribution upon the new Statute of 22 23 Car. 2. cap. 10. was the Question It was Argued that the Half blood should have no share for the Words are The next of Kindred to the Dead person in equal Degree which the Half-blood is not The Words likewise are Those which legally represent their Stocks and that must be intended in an Act of Parliament such as the Common Law makes to be Representatives and not the Civil Law For then it would be that the Bastard eigne should come in for Distribution For their Rule is that subsequens matrimonium facit
he had a way over the place where it is not material to the justification whither it leads it being after a Verdict when the right of the case is tried And it is aided at last by the Statute of Oxford 16 Car. And so Twysden said it was the Opinion of all the Iudges at Serjeants Inn he putting the Case to them at Dinner Norris and Cuffuil IN an Action upon the Case the Plaintiff declared That the Defendant in consideration of six pence paid in hand the 13 of Jan. 17 Car. and that the Plaintiff would pay him 20 s a Month he promised to serve him in his Glass-house after the first Iourny of Glass and sets forth quod primum iter vitrij tunc prox sequens aggreamentum praedictum fuit 21 Feb. 17 Car. which was the year before and that the Defendant did not come to serve him After Verdict for the Plaintiff it was moved in Arrest of Judgment That the Plaintiff had not declared sufficiently of any Iourny of Glass after the Agreement but that alledged appears to be the year before Et Adjornatur This Case being moved again Twysden said he had put it to the Iudges at Serjeants Inn and they were all of Opinion that it was well enough after a Verdict Heath versus Pryn. IN an Ejectione Firmae of the Rectory of Westbourn in Chichester upon Not Guilty pleaded it appeared upon the Evidence that the Plaintiffs Title was as Presentee of the Grantee of the next Avoidance from the Lord Lumly and Letters of Institution under the Seal of the Ordinary were produced but by reason of the times the Ordinary Parson and Patron being Sequestred no Induction followed thereupon until the Kings Restauration this Institution was 1645. Soon after the Defendant was placed in this Church by an Ordinance of Parliament and hath enjoyed it ever since and there was an Act of Parliament made 12 Car. 2. which confirms Ministers in their Possessions of any Benefice with cure tho' they came not in by Admission Institution and Induction but according to a Form used in those times in which Act there is also a Clause of Restitution of sequestred Ministers to such Benefices as they had been seized of by taking the profits It was alledged on the Defendants side that the Plaintiff proving nothing of a Presentation the Institution could not be admitted as Evidence of it especially in this case where the Induction was so long after to which the Court did incline And then the Oath of the Grantee of the next Avoidance was offered which was not admitted altho' his Interest was executed by the Presentment And it was said that an Assignor might be sworn a Witness to the Assignment of a Lease where there were no Covenants It was also said that the Plaintiff was not within the clause of Restitution of the Act of 12 Car. because he was never seized by taking the Profits which cannot be until Induction according to Hare and Bicklers Case in the Commentaries quod suit concessum To which it was replied That neither was the Defendant within the clause of Confirmation because the Rectory in question was not a Benefice with cure for there is belonging to it a perpetual Vicaridge Endowed and the Vicar comes in by Admission Institution and Induction who performs Divine Service pays the Synodals and Procurations repairs the Chancel and therefore it hath been adjudged that such a Vicar shall have Arbores in Coemiterio And it was said that the Statute of 21 Hen. 8. against Pluralities doth not extend to Rectories where there are Vicaridges Endowed And Linwood describes a Benefice without cure cujus cura Vicariis perpetuo exercenda est Otherwise where the Vicar is Temporal and removeable And the difference is inter curam actualem habitualem And 't is the Cure that the Rector hath and so hath every Bishop in his Diocess who when he gives Institution saith accipe curam tuam et meam but the Act only extends to the first It appeared also on the other side That the Parson had come once or twice a year Preached and Administred Sacraments and that without the Vicars leave and also paid First-fruits Vpon all this matter the Opinion of the Court was That the Parson had a concurrent Cure with the Vicar and resembled it to the case where there are two Incumbents in one Church and coming in by Admission Institution and Induction the Vicar could not discharge him of the cure of Souls But Donatives which are conferred by Laymen are sinè cura Note The Plaintiffs Counsel would have denyed the Act of 12 Car. to be an Act of Parliament because the were not Summoned by the Kings Writ but the Iudges would not admit it to be questioned and said That all the Iudges resolved that the Act being made by King Lords and Commons they ought not now to pry into any defects of the Circumstance of calling them together neither would they suffer a point to be stirred wherein the Estates of so many were concerned Vid. Hob. 109. 33 H. 6. 19. Notwithstanding all this the Jury found for the Plaintiff It seemed by the Court in this case that Letters of Institution must be under the Episcopal Seal sed vide Cro. lib. 1. 249. Vid. postea The King against Burford HE was Indicted for that he scandalose contemptuose propalavit publicavit verba squentia viz. That none of the Justices of Peace do understand the Statutes for the Excise unless Mr. A. B. and he understands but little of them no nor many Parliament men do not understand them upon the reading of them And it was moved to quash the Idictment for that a man could not be Indicted for speaking◠of such words and of that Opinion was the Court But they said he might have been bound to his Good Behaviour Stones Case A Writ of Priviledge was prayed for Stone an Attorney of the Court who was Copyholder of a Mannor where the Custom was for the Homage to chuse one of the Tenants to collect the Lords Rents for the year following and they elected him But it was said that this might be taken to be parcel of his Tenure for the Lords use to seize the Land for not executing of it and his Priviledge ought not to deprive the Lord of the Service of his Tenant 1 Cro. 422. In the Book of H. 6. The Archbishop of York being bound by Tenure to Collect the Tenths pleaded the Kings Letters Patents in discharge thereof and they were disallowed and tho' Attorneys have had their priviledge where they have been pressed Souldiers as in Venables Case 1 Cro. 8. Co. Entries 436. Springs Case and 1 Cro. 283. and where by Custom it came to an Attorneys turn to be Constable vid. Rolls 2. part 276. yet these are publick Services to which every one is bound but Priviledges may be allowed to exempt particular persons as the King may grant to one that he shall not be of
King by general words of all Land c. Conditions c. 3 Co. 2. a. b. much less could it pass from the King if it could pass at all by general words but I rest upon this First That it is a Power or kind of Trust to revoke but no Condition Secondly At least not such a Condition as is given to the King Thirdly If it were it ought to have béen executed by the same means as it should have béen by S. M. In Englefields Case there was no pretence to have more than to execute the Condition it ought here to have béen executed in the Life of S. M. and so it appears to be done in Englefields Case and Harding and Warners Case for I caused the Cases to be searched This is like the Case of the Statutes of 15 R. 2. cap. 5. 1 R. 3. cap. 1. 19 H. 7. cap. 15. these Statutes give the same advantage to Lords c. where persons have Uses in Lands respectively as if they had the very Lands but the Lord's c. cannot thereby claim any greater Interest than the cestuy que Uses had respectively in the Uses Now in this Case The Body of the Act and the Proviso fetch back and save the Trusts for all but S.M. As to the Execution for the Kings Debts it differs for the Process for they ever did and do run de terris de quibus illi aut aliquis ad eorum usum c. 'T is true in Sir Charles Hattons Case it was resolved That the Kings Debr should be executed upon Land wherein he had a power of Revocation Vid. Chirtons Case 11 Co. 92. And so Iudgment was affirmed per toram Curiam Termino Sanctae Trinitatis Anno 22 Car. II. In Banco Regis Anonymus IN Debt upon a Bond. After Verdict for the Plaintiff the Judgment was entred quod recuperet the Sum pro misis custag ' instead of pro debito praed ' But this was ordered to be amended as the default of the Clerk tho' in another Term The Court having power over their own Entries and Judgments Anonymus IN an Account it was held by the Court that if a man delivers Money to his Bayliff or Factor to lay out for him in Commodities he cannot bring an Assumpsit but only his Action of Account For the Chief Justice said that he knew such an Action once brought and the Jury that were to try the Cause informed him That if they should Examine all the Accounts which were between the Plaintiff and Defendant it would take up three or four days time So that it hath been always holden that in such case he should be driven to his proper Remedy which is an Action of Account and it may be the Factor hath laid out more Mony that he received Eaton versus Barker IN an Action upon the Statute of 17 Car. nunc for residing in a place where he had formerly kept a Conventicle and demands the 40 l penalty After Verdict for the Plaintiff it was moved in Arrest of Judgment that there was no Costs or Damages given For it was said that where a Statute gave a certain Penalty if this be not paid upon demand he that sues for it shall recover his Costs and Damages as North and Wingate's Case in the 3 Cro. 559. is But the Court held that they ought not to be given in Actions Popular whether the Forfeiture be certain or not but where a certain Penalty is given to the party grieved there he shall recover his Costs and Damages 10 Co. 116. Vide postea Polexphen versus Polexphen IN a Prohibition the Case was that Henry Polexphen died Intestate Andrew his Brother gets Letters of Administration in the Inferiour Diocess One who pretended to be the Wife of H. surmizing Bona notabilia procured Administration from the Prerogative Court Andrew appeals to the Delegates and dies Henry his Son and Heir comes in and gets the Administration committed in the Prerogative Court Repealed and hath Letters granted to himself Vpon this the Wife prayed a Prohibition supposing that the Delegates could not proceed after the death of Andrew but that their Commission was determined For their Authority is by that to proceed in a Case between such parties one of which is dead To which it was Answered That the Commission is to hear and determine the Cause And both in the Civil and Ecclesiastical Law the Suit shall continue after the death of either party for those which shall be concerned as appears by the Bishop of Carlisle's Case in 2 Cro. 483. and in the 1st Leonard 117 and 178. it is said That if one party dies ante litis conrestationem then it shall abate but if after it is otherwise And there are a number of Presidents of this nature both in the Arches and Admiralty Courts c. And in this very Case Henry Polexphen having obtained Administration de bonis non of his Vncle Andrew in the Country the now Plaintiff got it set aside by the Delegates because granted while an Appeal was depending and that upon full debate before them who would yet now suggest that the Appeal was determined by the death of Andrew The Court were of Opinion that no Prohibition was to be granted and that the Delegates Authority to proceed in that case continued notwithstanding the death of Andrew For the Commission is to proceed in causis Administration c. una cum suis incidentibus vel annexis qualitercunque c. Summariè juxta Juris exigentiam So that the Ecclesiastical Law is appointed to be their Rule by the course of which a Suit doth not abate by the death of the parties And Hale said The Appeal is to the King in Chancery and it is by reason of his Original Jurisdiction and thereupon he grants a Commission to hear it Now if he could hear it in Person none could object but that he might determine the Cause after the death of the parties and by the same Reason they may to whom he hath delegated his Authority But the Attorney General coming in and desiring to be heard in it for the Plaintiff the Court gave further time Eaton versus Barker THe Case was now moved again upon the Statute for coming to a place where he had formerly Preached in a Conventicle And Exception was taken to the Declaration For that it was not averred that the Defendant was in Holy Orders For the words of the Statute are That if any one that hath been Parson Vicar Lecturer c. or within Holy Orders and have taken upon them to Preach c. But to this it was Answered that there is another Clause in the Act That all such persons as shall take upon them to Preach c. which is general and extends to all men whether in Orders or no which have been Preachers And of that Opinion were the Court. It was also Objected That there was no Averment That the Defendant was not there upon Summons Sub
there be not an Entry immediately a Livery within the View is not good and in this case by the Marriage he becomes seised in the Right of his Wife and cannot by his own Act divest himself of that Estate or work a prejudice to his Wife by putting the Estate out of her Which makes it differ from the Case of the 38 E. 3. 11. b. Where a man made Livery of the within View to a Woman and before she Entred married her and claimed the Estate in Right of his Wife there held to be a good Feoffment For in that case there is no Alteration of the Estate consequent upon the Intermarriage Neither is it like the Case of 2. R. 2. quoted in Forse and Hemling's Case in the 4 Co. Where a Woman grants a Reversion to a Man and they Intermarry before Attornment For there the Grant is to be perfected by the Act of a Stranger which in reason should be more available to a man than his own Act. But it was Resolved by all the Court that this Livery was well Executed after the Marriage For an Interest passeth by the Livery in View which cannot be countermanded The effectual part of it viz. Go Enter and take possession was before the Marriage tho' the Estate is not in the Feme while Entry She hath done all on her part to be done and hath put it meerly in the Foffor's power and when he Enters it hath a strong retrospect to the Livery and shall be pleaded as a Feoffment when she was sole If two Women Exchange Lands and one marries before Entry this shall not defeat the Exchange The Cases of 2 R. 2. and 38 Ed. 3. are as strong Emerson versus Emerson TRin. ult Rot. 1389. Error of a Judgment in the Common Pleas in an Action of Trespass by the Plaintiff as Executor upon the Statute of 4 E. 3. De bonis asportatis in vita Testatoris The Plaintiff declared that the Defendant blada crescentia upon the Freehold of the Testator messuit defalcavit cepit asportavit Vpon Not Guilty pleaded a Verdict and Judgment was for the Plaintiff and assigned for Error That no Action lay for Cutting of the Corn for that is a Trespass done to the Freehold of the Testator for which the Statute gives the Executor no Action and while the Corn stands 't is to many purposes parcel of the Freehold So that if a man cuts Corn and carries it away presently tho' with a Felonious intent 't is no Felony Otherwise if he let it lye after 't is Cut and at another time comes and steals it So that it appears for parcel of the Trespass no Action lyes then entire Damages being given as well for the Cutting as Carrying away the Corn the Judgment is Erroneous But all the Court were of another Opinion 9 Co. 78. for 't is but one entire Trespass the Declaration only describes the manner of Taking it away Indeed if it had been quare clausum fregit blada asportavit it had been naught or if he had Cut the Corn and let it lye no Action would have lain for the Executor So if the Grass of the Testator be Cut and carryed away at the same time because the Grass is part of the Freehold but Corn growing is a Chattel The Statute of 4 Ed. 3. hath been always Expounded largely Mr. Amhurst's Case of Grays-Inn SErjeant Maynard moved for a Mandatory Writ to the Mayor and Court of Aldermen of London upon the Statute of 13 Car. 2. c. 11. to give Judgment according to the late Act of 22 nunc Regis The Case was That the Act appoints a Market to be on certain Ground set out in Newgate-Market and in all such cases for the satisfaction of the Owners of the Ground if the City cannot agree with them for it it Impowers the Mayor and Aldermen to Empannel a Jury who shall Assess and Adjudge what satisfaction and recompence shall be given to the Owners and says That the Verdict of such Jury on that behalf to be taken and the Judgment of the said Mayor and Court of Aldermen thereupon and the Payment of the Money so awarded or adjudged c. shall be binding and conclusive to and against the Owners c. Now there was Fifteen thousand Foot of Amhurst's Ground taken away for this purpose and a Jury had been Empannelled and had assessed and awarded him Two shillings a Foot but the Mayor and Court of Aldermen refused to give Sentence or Judgment thereupon This says he is a Ministerial thing and this Court will interpose when any Officers will not do Iustice or will out-go their Authority For there is the same Reason to command to do Justice as to prohibit Injustice A Bishop of Exon had Fallen-out with a Town in Cornwal and denyed them Chrisme and a Mandamus went hence to command him to give it them Mr. Noy brought in a Copy of it Sir William Jones This somewhat resembles a Procedendo ad Judicium this is stronger than the Case of commanding a Bishop to grant Administration there this Court commands them to observe a Statute tho' it be in a Matter this Court has no Cognizance of We can't have an Action on the Case Hale If they don't make you Satisfaction your Interest is not bound Maynard But that is taken away by the same Act Pag. 143. 4. We are Lessee to â—he Dean and Chapter of St. Pauls Hale 'T is not Enacted That they shall give Judgment but that is implyed I never knew a Writ commanding to grant Administration tho' the Opinion has been so Sir William Jones That was done in Sir G. Sandy's Case after great Debate Then a Rule was made to shew Cause why a Writ should not go Afterwards the Court granted a Writ but willed them to consider well of the Form and to whom to direct it Loyd versus Brooking TRin. ult 1046. The Case was Tenant for Life Remainder to his first Son in Tail Remainder to J. S. for Life Remainder to his first Son in Tail c. Tenant for Life after the Birth of his first Son accepts a Fine from J. S. to certain uses and then makes a Feoffment after which the Son of J. S. is Born and whether his Contingent Remainder were destroyed or should vest in him was the Question And it was Resolved by the whole Court upon the first Opening that the Contingent Remainder was not destroyed the acceptance of the Fine displaced nothing the Feoffment divested all the Estates but the Right left in the first Son in Remainder supported the Contingent Remainders My Lord Coke's Case 2 Rolls 796 797 is stronger He Covenanted to stand seised to the use of himself for Life Remainder to his Wife for life Remainder to his Daughter for Life when born Remainder to her first Son in Tail And minding to disturb the arising of the Contingent Estates attempted it by these two Means First He grants the Reversion and in the
Car. nunc cap. 3. in pursuance of which he distrained the said Nails for the Duty due by those Acts out of a Smiths Forge c. The Plaintiff demurred So the sole question was whether a Smiths Forge were within the Acts it being once argued the last Term the Court now gave their Opinion Moreton I think a Smiths Forge ought to pay 't is a great part of the Kings Revenue almost in every Village there is one we should explain the Act liberally for the King Rainsford of the same Opinion 't is within the words scilicet an Hearth whereon Fire is used and within the meaning for there is an exception of things not so properly Fire hearths as this viz. Private Ovens Where the Act excepts Blowing Houses I take it is meant Glass houses and the Houses at Ironworks by Stamps I think is meant Presses Calenders for Cloaths by the very words Houses that are not Dwelling Houses are charged The objection that it is his Trade is answered by the instance of Cooks Chandlers Common Ovens Hearths of Tripewomen who boil Neats Feet Twisden of the same Opinion the words are general yet I would not extend it to every Hearth that has a Fire upon it as Stils and Alembicks for so we might extend it to a Chaffing dish of Coals but we must take it for a Rule to extend it to those things which are most general A Smiths Forge is of such use that 't is found almost in every Village therefore 't was reckoned a great piece of hardship and slavery upon the Children of Israel that they were not permitted a thing so useful amongst them The exceptions enumerate particulars therefore it excludes whatever is not expressed Hale I would fain know how the fact is Do Silver Smiths c. pay It were too narrow to extend it only to Common Chimneys and too great a latitude to extend it to every place where Fire is where a Man can but warm his Hands I suppose Boylers in Cooks Chimneys and the Fireplaces of Worstead Combers do not pay Common Ovens should have paid tho' there were no exception of Private Ovens for they never are or can be without a Chimney This is matter of fact I have not enquired into and I would be loath to deliver an Opinion without much inquiry but 't is very probable that they are Firehearths and not excepted but it appears plainly upon the Record that 't is a Firehearth and by the general Demurrer 't is admitted Note There was a Special Rule that no advantage should be taken of the Pleading by either side But Hale said he did not know how they were bound by that Rule Termino Paschae Anno 24 Car. II. In Banco Regis Monk versus Morris and Clayton THe Plaintiff after he had obtained Iudgment in Debt became Bankrupt and the Defendants brought a Writ of Error The Judgment was affirmed in the Exchequer Chamber and the Record sent back Then a Commission of Bankrupts is sued out and the Commissioners Assign this Judgment The Plaintiff Sues out Execution and the Money is levied by the Sheriff and brought into Court The Assignee moves that it may not be delivered to the Plaintiff surmising that the Judgment was assigned to him ut Ante. The Court said they might have brought a Special Sicre facias which they having delayed and that it would be hard to stay the Money in Court upon a bare surmise and for ought appeared it was the Plaintiff's due But however because it might be hazardous to deliver it to him they consented to detain it so that the Assignee forthwith took out a Scire facias against the Defendant in order to try the Bankrupcy or otherwise that it should be delivered to the Plaintiff Sir Ralph Bovyes Case IN an Ejectment upon a Tryal at Bar the Case appeared to be this Sir William Drake was seized in Fee of the Lands in question and 19 Car. 1. infeoffed Sir William Spring and five others to such uses as he should declare by his Will in Writing or by his Deed subscribed by three Witnesses In August 20 Car. 1. by his Deed ut supra he limits the use of the said Lands to his Brother Francis Drake for 90 years and declares That the Feoffees should be seized to their own use in Trust for the said Francis Drake and his Heirs with a power to Francis Drake to alter and limit the Trust as he should think fit In the same Month there is a Treaty of Marriage between F.D. and the Daughter of Sir William Spring and it was agreed by certain Articles between F.D. and Sir W. S. c. reciting that he should receive 2500 l with his intended Wife which Money was proved to be paid that F. D. should convey the Lands in question to himself and his Wife and the Heirs Males of their two Bodies c. for the Joynture of the Wife The Marriage afterwards in 20 Car. takes effect and soon after the same year F.D. by Indenture between him Sir W.S. and another reciting the Articles of Marriage Assigns his Term of 90 years to Sir W. S. and the other in Trust to himself for Life the remainder to his Wife for Life and after to the Heirs Males of their two Bodies and by the same Deed limits the Trust of the Inheritance of the Lands in the same manner Afterwards in 23 Car. 1. he in consideration of 6000 l proved to be paid Grants out of the said Lands a Rent of 400 l per annum to Sir Ralph Bovy and his Heirs with power to enter into the Land in case the Rent was not paid and to retain it until satisfaction Afterwards F. D. and his Wife dye the Rent was Arrear Sir R. Bovy enters Sir Will. Spring and the other Trustees Assign the term of 90 years to Sir Will. Drake Heir Male of F.D. and his Wife the Lessor of the Plaintiff In this case these Points were agreed by the Court. First That when Sir W. D. enfeoffed divers to such Uses as he should declare by his Will or Writing that if he had in pursuance of that Feoffment limited the Uses by his Will that the Will had been but Declaratory tho' if he had made a Feoffment to the Use of his Will it had been otherwise according to Sir Ed. Cleeres Case 6 Co. And Hale said my Lord Co. made a Feoffment provided that he might dispose by his Will to the use of the Feoffee and his Heirs and resolved in that case he might declare the Use by his Will which should arise out of the Feoffment Secondly That this Settlement being in pursuance of Articles made precedent to the Marriage had not the least colour of fraud whereby a Purchaser might avoid it and if there had been but a Verbal Agreement for such a Settlement it would have served the turn And the Court said if there had been no precedent Agreement so that it had been a voluntary Conveyance tho' every such
Tenant in Tail and levying of a Fine there is an Instantaneous Fee in him out of which the new Estate Tail is supposed to be created and that cannot hold bring derived out of a Fee subject to the Forfeiture by Relation but this Point was not touched by the Judges for that they were fully agreed upon the other Point Beasly's Case HE was taken in Execution taken a Recognizance of Bail and he made it appear to the Court that he never acknowledged the Recognizance but was personated by another and thereupon it was moved that the Bail might be vacated and he discharged as was done in Cottons Case 2 Cro. 256. But the Court said since 21 Jac. cap. 26. by which this Offence is made Felony without Clergy it is not convenient to vacate it until the Offender is convicted and so it was done 22 Car. 2. in Spicers Case Wherefore it was ordered that Beasly should bring the Money into Court an be let at large to prosecute the Offender Twisden said it must be tried in Middlesex tho' the Bayl was taken at a Judges Chamber in London because filed here and the Entry is venit coram Domingo Rege c. So it differs from a Recognizance acknowledged before my Lord Hobart upon 23 H. 8. at his Chamber and Recorded in Middlesex there Scire facias may be either in London or Middlesex Hob. rep If a false Bayl be acknowledged it is not Felony unless it be Filed and so held in Timberly's Case The King versus Humphrey's al. AN Indictment upon the Statute of Maintenance and one only found Guilty and it was moved in Arrest of Judgment that seeing but one was found Guilty it did not maintain the Indictment 2 Rolls 81. several were indicted for using of a Trade and said uterque eor ' usus fuit and held not good Sed non allocatur for that in that case in Rolls the using of the Trade by one cannot be an using by the other But this is an Offence that two may joyn in or it may be several as in a Trespass But then it was alledged that the Maintenance was in quodam placito in Cur ' coram Domino Rege pendent ' and not said where the Kings Bench Sate and this was held fatal Termino Sancti Hillarij Anno 28 29 Car. II. In Banco Regis Jay's Case A Mandamus to restore to his place of a Common Council Man in the Corporation of Eye in Suffolk The Return was that he was amoved for speaking of approbious words of one of the Aldermen viz. That he was a Knave and deserved to be posted for a Knave all over England And it was moved that the Return was insufficient for words are not good cause to remove a Man from his place in the Corporation To which it was said that this not a difranchising of him but only removing him from the Common Council as a person not fit to sit there To which Twisden said that his place there could no more be forfeited than his Freedom for he was chosen thereunto by the Custom of the place And Magna Charta is that a Man shall not be disseised de liberis consuetudinibus But he held that words might be a cause to turn out a Freeman as if they were that the Mayor or the like did burn the Charters of the Town or other words that related to the Duty of his place But in the Case at Bar the words do not appear to have any reference to the Corporation wherefore it was ordered that he should be restored The Court said that my Lord Hale held That Returns of this nature should be sworn tho' of late days it has not been used and that it was so done in Medlecot's Case in Cro. Abram versus Cunningham UPon a Special Verdict the Case appeared to be to this effect A. possessed of a Term makes B. Executor who makes three Executors and dies two of them dies and the Will of B. the Executor not being discovered Administration is granted cum Testamento annexo to D. who grants over the Term. The surviving Execcutor never intermeddles but so soon as he had Notice of the Will Refused before the Ordinary and the Point was Whether the grant of the Term in the mean time was good Saunders to maintain it Argued That to the making of an Executor besides the Will there was requisite that the Executor should assent and if the Executor refuses 't is as much as if there never had been any There is no Book which proves the Acts of an Administrator void where there is a Will and the Executor renounces Greysbrook and Foxe's Case in Plowden's Com. is that after Administration granted the Executor proved the Will And so in 7 E. 4. 14. in Dormer and Clerke's Case it was held that where there was an Executor who after refused and Administration committed the Administrator should have all the Rent belonging to the Term in Reversion which accrued after the death of the Testator If an Executor be a Debtor and refuses the Administrator may Sue him Which was denied by Twisden because a Personal Action once suspended is ever so Dyer 372. If one makes an Executor who dies and never proves the Will Administration shall be granted as upon a dying Intestate suppose an Executor de son tort had Judgment against him Shall not there be Execution upon a Term as Assets in his hands Twisden It hath been Doubted whether there could be an Executor de son tort of a Term or whether he were not a Disseisor And by the same Reason it may be granted in the present Case for at least the Administrator here is an Executor de son tort before the Refusal Levins contra Anciently Bona Intestati capi solebant in manus Regis as appears in Hensloe's Case in the 9 Co. And since the Power of the Ordinary hath been introduced it was only to grant Administration upon a dying Intestate 4 H. 7. Pl. 10. If the Ordinary cites the Executor to prove the Will and he Renounces 't is said he may grant Administration which implies that it cannot be before So 21 H. 8. cap. 5. is to grant Administration c. upon a dying Intestate or refusal of the Executor the Interest of the Executor commences before the Probat In 36 H. 6. 8. an Executor commanded one to take the Goods and after the Executor refused before the Ordinary who committed Administration and the Administrator Sued the person that took the Goods who Iustified by the Executor's Command and it was held good And a Relation shall never make an Act good which was void for defect of Power And the Court seemed strongly of that Opinion But Serjeant Pemberton desiring to Argue it the Court permitted him to speak to it the next Term. Et sic Adjornatur And afterwards it was Argued again and Judgment was given for the Defendant per totam Curiam Dunwell versus Bullocke IN an Action of
could not be digged up there might be an Indictment Exhibited to the Grand Jury who might Enquire thereupon Termino Sancti Hillarij Anno 32 33 Car. II. In Banco Regis Anonymus A Motion was made against a Judge of an Inferiour Court of Record for increasing upon a View the Damages in an Action of Trespass and Battery to so much more than was given by the Jury Curia The proper way is to Reform it by a Writ of Error for none but the Courts at Westminster can increase Damages upon View Anonymus IF a Writ of Error in Ejectment c. abates by the Act of God a second Writ will be a Supersedeas Otherwise where it abates by the Act of the Party Anonymus IN a Writ of Error to Reverse a Fine the Proclamations were pleaded in the same Fine and Five â—ears quiet possession and this in barr of a Writ of Error The Court Inclined that the Error being in the Fine Five years possession could not be pleaded Sed Adjornatur Mo. Rep. 8. Termino Paschae Anno 33 Car. II. In Banco Regis NOte This Term Sir Francis Pemberton was made Lord Chief Justice of the Kings-Bench in the room of Sir William Scroggs who was displaced Page versus Denton HIll 32 33. Car. 2. Rot. 45. In Debt upon a Bond against an Executor who pleads that the Testator was Indebted to him by an Obligation the Condition whereof was to pay Rent and that at the time of his Decease there was 300 l due for Rent and that he had not more than 60 l Assets to pay it c. The Plaintiff Replied That there was but 30 l due for Rent at the time of the Testator's death Which the Court held to be a good Replication altho' the Penalty of the Bond was forfeited at the time of the Testator's death For if a Bond due to a Stranger be forfeited and this be pleaded by an Executor and that he hath not Assets ultra 't is a good Replication to say That the Obligee would have taken part of his Money in full and it shall be a Bar for no more and here the Defendant ought to take but his due Debt And the Court said that if men would plead their Case Specially it would save many a Suit in Chancery Fitzharris's Case EDward Fitzharris was Indicted of High Treason upon which being Arâ—aigned and demanded to plead he delivered in a Paper containing a Plea to the Jurisdiction of the Court which could not be received as the Court said not being under Counsel's Hand Whereupon he prayed to have Counsel assigned and Named divers whereof the Court assigned Four And he was taken from the Bar three of four days being given him to advise with his Counsel to prepare his Plea as they would stand by him The Counsel prayed that they might have a Copy of the Indictment But the Court denied it and said that it was not permitted in Treason or any other Capital Crimes But Justice Dolben said that sometimes it had been allowed to take Notes out of the Indictment Vid. Mirror 304. Abusion est que Justices ne monstre l'Indictment à les Indictes s'ils demandront Sect. 115. Termino Sanctae Trinitatis Anno 33 Car. II. In Banco Regis Anonymus IN an Action of Debt against an Executor in the Debet and Detinet upon a Surmize of a Devastavit the Defendant was held to Special Bail And so Ruled upon Motion Anonymus IT was said by the Court That if a Corporation that hath been by Prescription accept a New Charter wherein some alteration is of their Name and likewise of the Method in the Governing part yet their Power to remove and other Franchises which they had de temps d'ont c. do continue And if the Power to Remove be at their Will and Pleasure this Will must be expressed under their Common Seal but in Return to a Mandamus debito modo amotus may suffice Note No Writ of Error lies upon an Indictment of Recusancy and Conviction by Proclamation Note In an Ejectment where there are divers Defendants which are to Confess Lease Entry and Ouster if one does not appear at the Trial the Plaintiff cannot proceed against the rest but must be Nonsuit Termino Sancti Michaelis Anno 33 Car. II. In Banco Regis Anonymus IN Covenant the Plaintiff Declared upon several Breaches one whereof was for not paying of 7 l according to the Covenant It was moved for the Defendant that he might be admitted to bring 7 l into Court to pay to the Plaintiff together with his Costs hitherto c. as is usual in Cases of Debt or Assumpsit for Money and that the Plaintiff might proceed for the rest if he thought fit But the Motion was denied because the Plaintiff had Declared of other Breaches and the Matter lay in Damages Anonymus ERror upon a Judgment in the Common Pleas where the Plaintiff Declared in an Action upon the Case that he had Common in the Defendants Lands habere debuit c. The Defendant Demurred because not set out how the Plaintiff was Intituled to the Common whether by Prescription or otherwise Notwithstanding which Judgment in the Common Bench was for the Plaintiff and now the same Matter insisted on for Error here and the Court doubted To make the Declaration good there was quoted the Case of Sands and Trefuses in the 3 Cro. in an Action for Stopping of a Watercourse to his Mill which was held good without saying an Ancient Mill or that he was Intituled to the Watercourse by Prescription or otherwise 2 Cro. 43.122 Dent and Oliver an Action for disturbing of him to take Toll and no Title set forth Sed Adjornatur Vid. Co. Entr. 9. 11. Day versus Copleston IN an Assumpsit for Money the Defendant pleaded the Statute for the Discharge of poor Prisoners and that he had been Discharged by that Act which provides that there shall be no after Prosecution by a Creditor in such case so as to subject the Body to Execution and says that he can say nothing further in Bar of the Action Vpon which the Plaintiff Demurred and the Defendant joyned in the Demurrer and Judgment was Entred up for the Plaintiff but with a Cesset executio quoad Corpus c. And the Court approved of this way of pleading the Statute for otherwise they said if the Matter had not been disclosed in pleading they doubted whether the could have given the Defendant the benefit of the Act but he would be driven to his Audita Querela Anonymus ERror of a Judgment in the King's Bench in Ireland it was suggested that the Plaintiff was in Execution upon the Judgment in Ireland And the Court seemed to be of Opinion that a Habeas Corpus might be sent thither to remove him as Writs Mandatory had been awarded to Calais and now to Jersey Guernsey c. Anonymus THe Case was A. Tenant in Tail Remainder to B. in Tail c. A.
1 W. M. After which Judgment for the Defendants 166 That the said Defendants shall go sine die and have their Costs 167 Averment that the said Judgment remains in full force That the Goods in the said Action of Trespass and this of Trover are the same That the Conversion in this Action and the Taking in the other is the same That the Cause of Action was the same in both And that the Plaintiffs and Defendants are the same Et hoc parati sunt verificare unde petunt Judicium si praedicti the Plaintiffs Actionem suam versus eos habere debeant c. Not guilty to the residue of the Goods The Plaintiffs demur The Defendants joyn 168 Vsury Pleaded Vid. Debt 7. Way Action for stopping it Vid. Action on the Case 5. WE all knowing the Great Learning and Judgment of the Author do for the Benefit of the Public approve of and allow the Printing and Publishing of this Book Intituled The Reports of Sir Peyton Ventris Kt. Late One of the Justices of the Court of Common-Pleas J. Som̄ers C.S. J. Holt Geo Treby Ed Nevill Joh. Powell W. Gregory N. Lechmere Tho. Rokeby G Eyre Jo Turton John Powell Sam. Eyre April the 20 th 1965. The Second Volume TERMINO SANCTI HILLARII Anno Vicesimo primo secundo Caroli Secundi IN COMMUNI BANCO Craw versus Ramsey IN an Ejectment of Lands and the Rectory of Kingston upon Thames in Surrey Vpon Not Guilty pleaded the Jury found a Special Verdict to this effect viz. That Robert Ramsey Born in Scotland before the Accession thereof to the Crown of England had Issue four Sons Robert Nicholas John and George Antenati Robert died they do not find when leaving Issue three Daughters Margaret Isabel and Jane who were also Aliens and alive 1 Octob. 14 Car. 1. Nicholas had Issue Patrick born in England 1 May 1618. They also find that at the Parliament holden 10 Car. 1. in Ireland it was Enacted That all Persons of the Scottish Nation should be reputed the Kings Natural Subjects to all intents constructions and purposes of that his Realm of Ireland as if Born there And they find the Act of Parliament at large Nicholas Ramsey was alive at the making of that Act. John the third Son afterwards Earl of Holderness was Naturalized by Act of Parliament in England 1 Jacobi and purchased the Lands and Rectory in question and being seised 22 Jac by Indenture Tripartite between him of the First part Sir William Cocke and Martha his Daughter of the Second part and Charles Lord Effingham of the Third part In Consideration of a Marriage to be had between him and Martha did Covenant to levy a Fine to the use of himself for Life and afterwards to Martha for Life the Remainder to the Heirs Males of his Body the Remainder to his own right Heirs And 29 Septemb. 22 Jac. the Marriage was had and the Michaelmas Term after a Fine was Levied accordingly The 24 of Jan. 1 Car. 1. the Earl died without Issue Martha Entred and was seised for her Life and died 17 Car. Et eodem anno it was found by Office that the Earl of Holderness died seised of the Rectory as before and without an Heir and that King Charles anno decimo granted this Rectory to one Murray George the fourth Son of Robert was Naturalized by the Parliament here 7 Jac. He had Issue John the Defendant Nicholas died Patrick his Heir in 1651. bargained and sold to the Earl of Elgin and one Sydenham virtute cujus vigore Statuti c. they were seised prout Lex postulat and in 1662. bargained and sold for years to Amabel Countess of Kent and Jane Hart and afterwards Released to them and their Heirs in 1665. They being seised bargained and sold by Lease and Release also to Pullen and Neale who Entred and bargained and sold to Sir Lionel Talmash and West the Lessors of the Plaintiff upon whom John the Defendant Entred Vpon which the Action is brought and the great Question in the Case was Whether Patrick the Son of Nicholas might claim these Lands as Heir to the Earl of Holderness by virtue of the Act of Parliament in Ireland 10 Car. or that they should descend to the Defendant the Son of George Naturalized the 7 of Jac. in England Wyld and Archer who Argued first were of Opinion That however the Point was adjudged the Plaintiff could not have Judgment upon this Verdict for they do not find that Patrick entred or was seised but that he in 1651. did bargain and sell c. Virtute cujus the Bargainees were seised prout Lex postulat and then bargained and sold in 1662 and do not so much as find their Bargainees seised prout Lex postulat But they find the Defendant Entred and so the primer Possession is in him which is a good Title against the Plaintiff for whom none is found it not being found that Patrick Entred Again If the Naturalization in Ireland will serve in England the Title appears for the Daughters the Heirs of Robert the eldest Son for 't is found that he died but not when so it might be after the Act of 10 Car. But Tyrrell and Vaughan Chief Justice differed in these two Points As to the First They said it would be intended Patrick entred for a Verdict that leaves all the Matter at large to the Iudgment of the Court will be taken sometimes by Intendment as well as where the Jury Conclude upon a Special Point 2 Cro. 64. find an Incumbent Resigned the Resignation shall be intended accepted So in 4 Co. Fullwood's Case it was found that one came before the Recorder of London and Mayor of the Staple recognovit se debere c. and did not say per scriptum suum Obligatorium nec per formam Statuti yet intended so Vid. Hob. 262. And where they find the Bargainees seised prout lex postulat that doth not leave it doubtful whether seised or no but whether by right or wrong for Seisin must be taken as found expresly Neither do they find any other in possession nor that the Defendant made any Claim in Twelve years after which enforces the Intendment as before And it is found expresly that Pullen and Neale Entred in 1665. so that the Defendant had not the primer Possession however or if he had he should not have Judgment if no other Title were found for him as is Resolved in 1 Cro. 42. Hern and Allen's Case As to the Second It shall be intended Robert died before 10 Car. For he is found an Alien and shall be presumed to have continued so during his Life unless found to the contrary then the Discent to the Daughters is obstructed by the Incapacity of their Father And tho' when the Title is found for the King the Court shall adjudge for him because the Kings Courts are intrusted with his Rights 't is not so of any other person but they shall take no
the detaining the Goods is but a Nonfeasans If the Sheriff upon Mesn Process refuses Bayl this does does not make him a Trespasser ab initio tho' he is liable to an Action upon the Case for such refusal and so is the Case of Salmon and Percival Jones 226. and 1 Cro. So also if the Sheriff detains a man taken upon Mesn Process after a Supersedeas and that appears by Stringer and Stanlacks Case 1 Cro. 404. and Withers and Henly's Case 2 Cro. 379. there said the detaining is a new Caption but it is objected here that the taking of the Mony is a Misfeasans and in 6 Co. Poulters Case if a man distrain and abuseth the Distress he is a Trespasser ab initio so where a thing is done by an authority of Law and an abuse is committed after Answ That is true if there were a Misfeasans in any matter wherein the Plaintiff in this Action had not concurred If a man should detain a Horse and the Owner should bid him ride him would this make him a Trespassor ab initio as if he had rode him without such licence The payment is here the Act of the Plaintiff in this Action and therefore he was of Opinion that he could not bring Trespass But by the Opinion of the other Three Iudges Judgment was given pro Quer ' Clarke versus Peppin Somerset ss GEORGIUS Peppin nuper de Culverton in Com' praedict ' Gen ' al' dic ' Executors bring Covenant reciting an Agreement for a Chattel Lease under a Rent and Covenant The Defendant pleads that the Testator Nihil habuit in Tenementis c. George Peppin of Culverton in the said County Gâ—nt summonitus fuit ad respondend ' Edwardo Clarke Armig ' Johanni Bowles Armig ' Georgio Musgrave Armig ' executoribus testamenti Will ' Clarke Armig ' de placito qd ' teneat eis conventionem in t ' eosdem Willielmum Georgium Peppin in vita ejusdem Willielmi factam juxta vim formam effectum cujusdam scripti agreament ' in t ' eos confect ' c. Et unde iidem Edwardus Johannes Georgius Musgrave per Humfr ' Stear Attorn ' suum dic ' qd ' cum per quoddam script ' agreament ' habit ' Scriptum agreamenti fact ' apud Camimgton ' decimo septimo die Julii Anno Dom ' Millesimo sexcentesimo octogesimo quarto in t ' praed ' Will ' ex una parte praed ' Georg ' Peppin ex altera parte sub figillo praed ' Georg ' Peppin signat ' hic in Cur ' prolat ' cujus dat' est eisdem die anno agreat ' The Agreement set forth fuit in t ' easdem partes pro una dimissione pro annis Anglicè a Chattle Lease pro nonaginta novem annis ad incipiend ' Anglicè to commence post mortem vel al' determinationem status Ux ' Christoferi Melhuish decessi ad determinand ' super mortem Eliz ' Peppin aetat ' Anglicè aged circa decem septem annos filiae praed ' Georgii Peppin ac Johannis Peppin filii Johannis Peppin de Culverton praed ' aetat ' Anglicè aged circa duodecim annos de in omni ill ' uno mesuagio tenemento cum pertin ' continen ' circa viginti septem acras de quibus quatuor sunt pratum nuper in possessione praed ' Christoferi Melhuish parcel ' manerii de Curry Pool sub antiquo annual ' reddit ' viginti septem solidorum quatuor denar ' pro Herriotto Anglicè an Herriot optimo averio vel quatuor libris ad Dom ' electionem usual ' covencon ' ut in omnibus dimissionibus Anglicè Leases concessis per fiduciarios Anglicè Trustees constitut ' per nuper Comitem Roffen omnium quorum consideratione praed ' Georgius Peppin pro se Executoribus Administratoribus Assign ' suis convenit promisit concessit agreavit ad cum praed ' Willielmo Executoribus Assign ' suis qd ' ipse Georgius Peppin Executores Administrutores vel Assign ' sui solverent vel solvi causarent praed ' Willielmo Executoribus vel Assign ' suis plenam summam centum octoginta librarum videlicet unam medietat ' inde ad Festum Sancti Michaelis ArcÌ„hi tunc prox ' post dat' scripti illius altram medietat ' ad Festum sancti Michaelis ArcÌ„hi tunc prox ' sequen ' proviso qd ' si Ux ' praed ' Cristoferi contingeret mori ante sigillationem praed ' designat ' dimissionis Anglicè intended Lease qd ' tunc script ' ill ' vacuum foret Aceciam proviso qd ' si aliqua supramentionat ' vitarum contingeret mori antequam praed ' designat ' dimissio sigillat ' foret qd ' tunc licitum foret ad pro praed ' Georgio Peppin Executoribus Administratoribus Assign ' suis nominare appunctuare aliquam al' personam in loco talis personae sic obien ' Licet the Plaintiff Testator performed all the Covenants c. Et iidem Edwardus Johannes Bowles Georgius Musgrave ulterius dic ' qd ' licet ipse praefat ' Willielmus in vita sua praed ' Edwardus Johannes Bowles Georgius Musgrave post mortem ipsius Will ' perimplever ' custodiver ' omnia singula agreament ' convention ' in script ' praed ' spec ' ex parte sua perimplend custodiend Protestando that the Defendants have not kept them The Breach assigned Protestando eciam qd praed Georgius Peppin non perimplevit nec custodivit aliqua agreament five conventiones in scripto praed superius spec ex parte sua perimplend custodiend in facto iidem Edwardus Johannes Georgius Musgrave dic qd praed Ux. praed Cristoferi adhuc superstes in plena vita existit videlicet apud Camimgton praed qd'que praed Georgius Peppin non solvit praefat Willielmo in vita sua seu eisdem Edwardo Johanni Georgio Musgrave post mortem praed Willielmi praed centum octoginta libras videlicet unam medietat inde ad Festum Sancti Michaelis ArcÌ„hi prox post dat script illius alteram medietat inde ad Festum Sancti Michaelis ArcÌ„hi tunc ê“x sequen Et sic c. Et sic iidem Georgius Johannes Georgius Musgrave dic qd pÌ„d Georgius Peppin conventionem suam pÌ„d nec cum pÌ„fat Willielmo in vita sua nec eisdem Edwardo Johanne Georgio Musgrave post mortem pÌ„fat Willielmi in hac perte factam tenuit set il penitus infregit ac il pÌ„fat Willielmo in vita sua eisdem Edwardo Johanne Georgio Musgrave post mortem pÌ„fat Willielmi tenere contradixit adhuc contradic unde dic qd deteriorat sunt dampnum habent ad valenciam ducentarum librarum Et inde ê“duc sectam Profert in Cur ' Literas Testamentarias c. ê“ferunt
Body of such first Son and in like manner to the second third Son c. and for want of Issue of the said Simon Leach the remainder to Sir Simon Leach and the Heirs Males of his Body and for default of such Issue to the right Heirs of Nicholas the Testator for ever and that the said Nicholas died seised of the Premisses and after his decease the said Simon Leach entred and became seised for Life with Remainders over as aforesaid and being so seised made a Deed hearing date the 23th of August in the 25th year of the Reign of the said King Charles sealed and delivered to the use of the said Sir Simon Leach but he was not present which Deed the Verdict sets forth in haec verba and by if he granted and surrendred to the said Sir Simon Leach his Heirs and Assigns the said Mannor and Premisses the Reversion and Reversions Remainder and Remainders of the same To have and to hold the same to the said Sir Simon Leach and his Heirs to the use of him and his Heirs and they find that the said Charles Leach Lessor of the Plaintiff the first Son of the said Sir Simon Leach was born the first of November in the 25th year of the Reign of the said King Charles and not before and that Simon Leach from the time of his Sealing the Deed to the 25th of May in the 30th year of the said King Charles continued possessed of the Premisses and that then and not before Sir Simon Leach accepted and agreed to the said Surrender and entred into the Premisses and that afterwards the said Simon Leach Brother of the said Nicholas the Testator died and the said Charles Leach his Son after his decease entred into the Premisses and demised them to the Plaintiff who by virtue thereof entred and became possessed and so continued till the said Simon Leach and the other Defendants by his Command ejected him But whether upon the whole Matter the said Simon Leach did surrender the said Mannor and Premisses to the said Sir Simon Leach before the said Charles Leach was born and if he did not surrender before the birth of the said Charles Leach then they find the Defendants Guilty and if he did surrender them before the birth then they find for the Defendants And Pollexfen Chief Justice Powell and Rokeby were of Opinion that here was no Surrender till such time as Sir Simon Leach had notice of the Deed of Surrender and agreed to it and so the Remainder was vested in Charles the Son and it was not defeated by the Agreement of Sir Simon after his birth to the Surrender But Ventris differed and his Argument was as followeth Whom this Record the Case is no more than this Simon Leach Tenant for Life Remainder to his first Son Remainder in Call to Sir Simon Leach Simon Leach before the birth of that Son by Deed sealed and delivered to the use of Sir Simon but in his Absence and without his Notice surrenders his Estate to Sir Simon and continues the possession until after the birth of his Son and then Sir Simon Leach agrees to the Surrender Whether this Surrender shall be taken as a good and effectual Surrender before the Son born There are two Points which have been spoken to in this Case at the Bar. First Whether by the Sealing of the Deed of Surrender the Estate immediately passed to Sir Simon Leach for then the Contingent Remainder could not best in the after-born Son there being no Estate left in Simon Leach his Father to support it Secondly Whether after the assent of Sir Simon Leach tho' it where given after the birth of the Son doth not so relate as to make it a Surrender from the Sealing of the Deed and thereby defeat the Remainder which before such Assent was vested in the Son I think these Points include all that is material in the Case and I shall speak to the Second Point because I would rid it out of the Case For as to that Point I conceive that if it be admitted that the Estate for Life continued in Simon Leach till the Assent of Sir Simon that the Remainder being vested in Charles the second Son before such Assent there can be no Relation that shall divest it I do not go upon the General Rule That Relations shall not do wrong to Strangers 'T is true Relations are fictions in Law which are always accompanied with Equity But 't is as true that there is sometimes loss and damage to Third Persons consequent upon them but then 't is what the Law calls Damnum absque injuria which is a known and stated difference in the Law as my Brother Pemberton urged it But I think there needs nothing of that to be considerrd in this Point But the Reason which I go upon is That the Relation here let it be never so strong cannot hurt or disturb the Remainder in Charles Leach in this Case for that the Remainder is in him by a Title antecedent and paramount to the Deed of Surrender to which the Assent of Sir Simon Leach relates so that it plainly over-reaches the Relation If an Estate in Remainder or otherwise ariseth to one upon a Contingency or a Power reserved upon a Fine or Feoffment to Vses when the Estate is once raised or vested it relates to the Fine or Feoffment as if it were immediately limited thereupon 1 Co. 133 156. So this Remainder when vested in Charles he is in immediately by the Will and out of danger of his Remainder being divested by any act done since as the Surrender is I will put one Case I think full to this Matter and so dismiss this Point It cannot be denied but that there is as strong a Relation upon a disagreement to an Estate as upon an agreement where the Estate was Conveyed without the Notice of him that afterwards agrees of disagrees if the Husband discontinues the Wives Estate and then the Discontinuee conveys the Estate back to the Wife in the absence of the Husband who as soon as he knows of it disagrees to the Estate this shall not take away the Remitter which the Law wrought upon the first taking the Estate from the Discontinuee And so is Litt. cap. Remitter Jones 78. Co. 11 Inst 356. b. The true Reason is because she is in of a Title paramount to the Conveyance to which the Disagreement relates tho' that indeed was the foundation of the Remitter which by the Disagreement might seem to be avoided This therefore I take to be a stronger Case than that at the Bar So that if there were no Surrender before the birth of Charles the Son there can be none after by any Construction of Law for that would be in avoidance of an Estate settled by a Title antecedent to such Surrender whereas Relations are to avoid Mesn Acts and I believe there can be no Case put upon Relations that go any further and it would be
then it has a Proviso That if any Subject of this Realm has committed any Capital Crime in Scotland or other Foreign parts of the King's Dominions he may be sent from hence to be Tryed in such Foreign place Vpon Consideration of which Proviso the Judges unanimously gave their Opinion That there was nothing in the Habeas Corpus Act supposing he had committed a Capital Crime by Law Martial in Ireland to hinder his being sent thither to be tryed thereupon and subscribed their Names to the said Opinion and certified the same to the Privy Council Note That it was said while my Lord Hale was Chief Justice of the King-Bench that one who had committed Murther in the Barbadoes and taken here was sent over to be Tryed there But was before the Habeas Corpus Act. Patrick Harding's Case HE was Indicted at the Sessions in the Old Baily Anno primo Willielmi Mariae for High Treason The Indictment sets forth that the said Patrick Harding machinans proditorie intendens pacem communem tranquillitatem hujus regni Angl ' destruere Gubernationem dictorum domini Regis dominae Reginae infra hoc regnum Angl ' subvertere ac caedes destructiones desolationes infra hoc regnum procurare 23 Novembr ' anno regni domini nostri Willielmi Mariae c. primo apud paroch ' sanctai Martini in Campis in Com' Middlesex ' praedict ' malitiose proditorie compassavit imaginat ' fuit intendebat dict' dom ' Regem dom ' Reginam adtunc supremos veros indub ' dom ' suos non solum à statu titulo potestate imperio regimine regni sui Angl ' penitus deponere deprivare verum etiam eosdem dom ' Regem dom ' Reginam interficere ad mortem finalem destructionem ponere adducere stragem miserabilem inter subditos per totum hoc regnum alia Dominia sua causare quodque ipse praedict ' Patrick Harding ad nequissimas proditiones proditiosas intentiones suas praedict ' perimplend ' eodem vicesimo tertio die Novembr ' apud paroch ' praedict ' proditorie vi armis c. bellum rebellionem contra dictos dom ' Regem dom ' Reginam nunc ordinavit levavit gerebat ac diversos milites viros armatos armaturos ad mil ' ac bellum contra dictos Regem Reginam nunc gerend ' congregavit levavit procuravit ac viros milites sic ut praefertur levat ' extra hoc regnum Angl ' misit iter suum suscipere procuravit ad sese jungen ' aliis hostibus inimicis rebellionibus dictorum Regis Reginae bellum contra eosdem gerend ' ulterius quod ipse Patricius Harding ad nequissimas suas proditiones perimplend ' perficiend ' eodem 23 Novembr ' apud paroch ' praedict ' ut falsissimus proditor dictor ' Regis Regin ' cum quodam Johanne Taaf adtunc subdito dictor ' Regis Reginae existen ' proditorie se assembl ' consultavit ac easdem proditiones suas praed ' adtunc ibid ' eidem Johanni Taaff malitiose proditorie advisat ' loquend in auditu divers subditor ' dictor ' Regis Reginae publicavit declaravit ad suadend ' eundem Johannem Taaff adjutan ' assisten ' esse in iisdem proditionibus magnum praemium stipend ' eidem Johanni Taaff adtunc ibidem obtulit Si ipse praed ' Johannes Taaff adjutans assistens in iisdem esse vellet contra ligeantiae suae debitum contra pacem dictor ' dom ' Regis dom ' Regin ' nunc coron ' dignitat ' suas necnon contra formam Statut ' in hujusmodi casu edit ' provis ' c. Vpon Not guilty pleaded the Jury found a Special Verdict Viz. That Patrick Harding to the intent to Depose the King and Queen and deprive them of their Royal Dignity and restore the late King James to the Government of this Kingdom did for Money by the said Patrick paid list hire raise and procure Sixteen men Subjects of this Kingdom at the time and place in the Indictment mentioned to fight and wage war against the King and Queen and those Sixteen men so listed hired raised and procured did send out of this Kingdom into the Kingdom of France to assist and aid the French King then and yet an Enemy to the King and Queen and in open war with Their Majesties and to joyn themselves with the Enemies and Rebels of and against the King and Queen in waging war against the King and Queen And if upon this matter the said Patrick Harding be guilty of Treason prout the Indictment then we find him Guilty prout c. and if Not guilty c then not Guilty c. Vpon this Special Verdict found the Lord Chief Justice Justice Gregory and Justice Ventris who were then present at the Sessions conceived some Doubt for they were of Opinion that it did not come within the Clause of the Statute of 25 Ed. 3. of Levying War For that Clause is That if a man levy War against our Sovereign Lord the King in his Realm and by the Matter found in the Special Verdict it appears that these Men were listed and sent beyond Sea to aid the French King It was also Doubted whether it were a good Indictment within the Clause of the Statute of adhering to the King's Enemies the Fact found in the Verdict comes fully within that Clause viz. the sending Men to aid the French King then an Enemy to the King and Queen in open War against them But the Indictment is short as to this matter for 't is quod milites sic ut praefertur levatos extra hoc regnum Angl ' misit ad sese jungend ' aliis hostibus inimicis rebellat ' dict' Regis Regin ' whereas it should set have forth who the Enemies were that the Court might take notice whether they were Enemies as the Law intends 33 H. 6. 1. b. If the Indictment had been That he sent them to the French King then in open War c. it had been well And upon these Doubts the Case was Adjourned for further Consideration In Michaelmass Vacation the greater part of the Judges were assembled at the Lord Chief Justices Chamber and having debated the Matter amongst themselves they all except Justice Dolben agreed that the said Patrick Harding was guilty of High Treason within the Clause of the Statute for Compassing the Death of the King it being found by the Verdict That the said Patrick Harding to the intent to depose the King and Queen and deprive them of their Dignity c. did for Money hire list c. and an intent to Depose the King proved by an Overt act hath been always taken to be within the Clause of Compassing the Death of the King So is Hales's Pleas
of the Crown so 11. and so it was held in the Case of the Earl of Essex in Queen Elizabeths Time and in the Lord Cobham's Case in the Reign of King James the First And the Chief Justice cited the Statute made 29 H. 6. cap. 1. upon the Rebellion of Jack Cade which Act sets forth that John Cade naming himself John Mortimer falsly and traiterously imagined the Death of the King and the destruction and subversion of this Realm in gathering together and levying of a great Number of the King's People and exciting them to Rise against the King c. against the Royal Crown and Dignity of the King was an Overt act of imagining the Death of the King and made and levied War falsly and trayterously against the King and his Highness c. So that it appears by that Act that it was the Iudgment of the Parliament That gathering Men together and exciting them to Rise against the King was an Overt Act of Imagining the Death of the King Vide Stamford's Pleas of the Crown fo 180. And according to this Opinion Judgment was given against Harding in the following Sessions and he was Executed thereupon NOta At an Adjourned Sessions held the 19th of May 2 Willielmi Mariae it appeared that one of the Kings Witnesses which was to be produced in an Indictment for Treason had been the day before Challenged to Fight by a Gentleman that it was said was a Member of the House of Commons he was by the Court bound in a Recognizance of 500 l to keep the Peace And because it appeared the Witness had accepted the Challenge he was bound in the like Sum. NOta Vpon an Appeal to the House of Lords Anno 2 Willielmi Mariae the sole Question was Whether upon the Statute of Distributions 22 23 Car. 2. the half Blood should have an equal share with the whole Blood of the Personal Estate And by the Advice of the two Chief Justices and some other of the Judges the Decree of the Lords was That the Half Blood should have an Equal share Samon versus Jones IN an Ejectment brought in the Court of Exchequer in the year of the Reign of the late King James the Second The Case upon a Special Verdict was to this effect William Lewis seised of a Reversion in Fee expectant upon an Estate for Life did by Deed Poll in Consideration of Natural love and affection which he had to his Wife and Robert Lewis his Son and Heir apparent begotten on the Body of his said Wife and to Ellen his Daughter give grant and confirm unto the said Robert Lewis the Son all those Lands c. the Reversion and Reversions Remainder and Remainders thereof To have and to hold to his Son and his Heirs to the Vses following viz. to the use of himself for Life and then mentioned several other Vses not necessary to be here mentioned as not material to the Point in question and then to the use of the Wife for Life and after to the use of Robert and the Heirs of his Body and for want of such Issue to the use of Ellen the Daughter and the Heirs of her Body c. William Lewis and his Wife died Robert the Son devised the Estate to the Lessor of the Plaintiff and died without Issue Ellen was in possession and claimed the Lands by this Deed in which thâ—re was a Warranty but no Execution of the said Deed further than the Sealing and Delivery was had either by Enrolment Attornment or otherwise So that the sole Question was Whether this Deed should operate as a Covenant to stand seised or be void And it was Adjudged to amount to a Covenant to stand seised in the Court of the Exchequer And upon a Writ of Error brought upon the Statute of Ed. 3. before the Commissioners of the Great Seal and others empowered by that Act to sit upon Writs of Error of Judgments given in the Court of Exchequer the said Judgment was Reversed by the Opinion of Holt Chief Justice of the Kings Bench and Pollexfen Chief Justice of the Common-Pleas And upon a Writ of Error before the Lords in Parliament brought upon the said last Judgment it was Argued for the Plaintiff in the VVrit of Error That this should enure as a Covenant to stand seised to the use of the Wife Son c. It appears by Bedell's Case in the 7 Co. and Foxe's Case in the 8 Co. that the words proper to a Conveyance are not necessary but ut res magis valeat a Conveyance may work as a Bargain and Sale tho' the words be not used so as a Covenant to stand seised tho' the word Covenant is not in the Deed and and Poplewell's Case were cited in 2 Roll. Abr. 786 787. A Feme in Consideration of a Marriage intended to be had between her and J. S. did give grant and confirm Lands to J.S. and his Heirs with a Clause of VVarranty in the Deed which was also Enrolled but no Livery was made It was Resolved to operate as a Covenant to stand seised Vide Osborn and Churchman's Case in the 2 Cro. 127. which seems contrary to that Case but the chiefest Case relied upon was that of Crossing and Scudamore Mod. Rep. 175. where a man by Indenture bargained sold enfeoffed and confirmed certain Lands to his Daughter and her Heirs and no Consideration of Natural Love or Money exprest This was Resolved 22 Car. 2. in B.R. to operate as a Covenant to stand seised and upon a Writ of Error in the Exchequer Chamber the Judgment was affirmed It was said on the other side for the Defendant That the Case at Bar differed from the Cases cited for here the Intention of the Deed is to transfer the Estate to the Son and that the Vses should arise out of such Estate so transferred In the Cases cited no Vses are limited upon the Estate purported or intended to be Conveyed but only an Intention appearing to convey an Estate to the Daughter in Crossing's Case and to the intended Husband in Poplewell's Case and seeing for want of due Execution in those Cases the Estate could not pass at Law it shall pass by raising of an Vse But the Case at Bar is much the same with the Case of Hore and Dix in Siderfin the 1st Part. 25. where one by Indenture between him and his Son of the one part and two Strangers of the other part in Consideration of Natural love did give grant and enfeoff the two Strangers to the use of himself for Life Remainder to the Son in Tail c. and no other Execution was three than the Sealing and Delivery of the Deed this was Resolved not to raise an Vse for the Vse was limited to rise out of the Seisin of the Strangers who took no Estate Vide Pitfield and Pierce's Case 15 Car. 1. Marche's Rep. 50. One gave granted and confirmed Lands to his Son after his Death this Deed had been
against all Reason if it should be otherwise But as to the first Point I am of Opinion that upon the making of the Deed of Surrender the Freehold and Estate of Simon Leach did immediately vest in Sir Simon before he had notice of gave any express consent to it and so it was a Surrender before Charles was born and then the Contingent Remainder could never vest in him there being no particular Estate to support it A Surrender is a particular sort of Conveyance that works by the Common Law And it has been agreed and I think I can make it plainly appear that Conveyances at the Common Law do immediately upon the Execution of them on the Grantors part divest the Estate out of him and put it in the party to whom such Conveyance is made tho' in his absence or without his notice till some disagreement to such Estate appears I speak of Conveyances at the Common Law for I shall say nothing of Conveyances that work upon the Statute of Uses or of Conveyances by Custom as Surrenders of Copyholds or the like as being guided by the particular penning of Statutes and by Custom and Vsage and Matters altogether foreign to the Case in question In Conveyances that are by the Common Law sometimes a Deed is sufficient and in Surrenders sometimes Words without a Deed without further Circumstance or Ceremony and sometimes a further Act is requisite to give them effect as Livery of Seisin Attornment and sometimes Entry of the party as in case of Exchanges and as well in those Conveyances that require a Deed only as those which require some further Act to perfect them so soon as they are executed on the Grantors part they immediately pass the Estate In case of a Deed of a Feoffment to divers persons and Livery made to one Feoffee in the absence of the rest the Estate vests in them all till Dissent 2 Leon. 23. Mutton 's Case And so 223. an Estate made to a Feme Covert by Livery vests in her before any Agreement of the Husband Co. 1 Inst 356. a. So of a Grant of a Reversion after Attornment of the Lessee passeth the Freehold by the Deed Co. 1 Inst 49. a. Litt. Sect. 66. In case of a Lease the Lessee hath right immediately to have the Tenements by force of the Lease So in the case of Limitation of Remainders and of Devises which tho' a Conveyance introduced by the Statute yet operates according to the Common Law the Freehold passeth to the Devisee before notice or assent I do not cite Authorities which are plentiful enough in these matters because they that have Argued for the Plaintiff have in a manner agreed that in Conveyances at the Common Law generally the Estate passeth to the party till he divests it by some disagreement But 't is Objected That in case of Surrenders an express assent of the Surrendree is a Circumstance requisite as Attornment to a Grant of a Reversion Livery to a Feoffment or Execution by Entry in case of an Exchange To which I Answer Than an Assent is not only a Circumstance but 't is essential to all Conveyances for they are Contracts actus contra actum which necessarily suppose the assent of all parties But his is not at all to be compared with such collateral Acts of Circumstances that by the Positive Law are made the effectual parts of a Conveyance as Attornment Livery or the like for the Assent of the party that takes is implied in all Conveyances and this is by intendment of Law which is as strong as the Expression of the party till the contrary appears stabit praesumptio donec probetur in contrarium But to make this thing clear my Lord Coke in his first Institutes fol. 50. where he gives instances of Conveyances that work without Livery or further Circumstance or Ceremony puts the Cases of Lease and Release Confirmation Devise and Surrenders amongst the rest whereas if an express Assent of the Surrendree were a Circumstance to make it effectual sure he would have mentioned it and not martiall'd it with such Conveyances as I have shewn before need no such assent nor any thing further than a Deed. The Case of Exchanges has been put as an Instance of a Conveyance at Law that doth not work immediately but that can't be compar'd to the Case in question but stands upon its particular Reasons for there must be a mutual express Consent because in Exchanges there must be a Reciprocal Grant as appears by Littleton Having I hope made out and much more might have been added but that I find it has been agreed that Conveyances work immediately upon the Execution of them on the part of him that makes them I will now endeavour to shew the Reasons why they do so immediately vest the Estate in the party without any express Consent and to shew that these Reasons do hold as strongly in case of Surrenders as of any other Conveyances at Law and then consider the Inconveniences and ill Consequences that have been Objected would ensue if Surrenders should operate without an express Consent and to shew that the same are to be Objected as to all other Conveyances and that very odd Consequences and Inconveniences would follow if Surrenders should be ineffectual till an express Consent of the Surrendree and then shall endeavour to Answer the Arguments that have been made on the other Side from the putting of Cases of Surrenders in the Books which are generally mentioned to be with mutual Assent and from the manner of Pleading of Surrenders The Reasons why Conveyances do divest the Estate out of the Grantor before any express Assent or perhaps Notice of the Grantee I conceive to be these Three First Because there is a strong Intendment of Law that for a man to take an Estate it is for his benefit and no man can be supposed to be unwilling to that which is for his Advantage 1 Rep. 44. Smalman and Agborough Where an Art is done for a mans benefit an Agreement is implied till there be a Disagreement This does not hold only in Conveyances but in the Gift of Goods 3 Co. 26. A Grant of Goods vests the property in the Grantee before Notice So of things in Action a Bond is sealed and delivered to a mans use who dies before Notice his Executors may bring an Action Dyer 167. An Estate made to a Feme Covert vests in her immediately till the Husband disagrees So is my Lord Hobart 204. in Swain and Holman's Case Now is there not the same presumption and appearance of Benefit to him in Reversion in case of a Surrender Is it not a palpable Advantage to him to determine the particular Estate and to reduce his Estate into possession and therefore why should not his Affent be implied as well as in other Conveyances Secondly A second Reason is Because it would seem incongruous and absurd that when a Conveyance is compleatly executed on the Grantors