quo and 't is in nature of a Contract raised by Law By the Words of the Capias ad satisfaciend ' it doth appear that the design of the Writ is to enforce the Payment of the the debt by the Imprisonment of the Defendant The Sheriff thereupon returns that he hath taken the Body and that the Defendant hath paid the Mony to him for which reason he discharged him and for this Return he was amerced not because he discharged the Party but because he had not brought the Mony into the Court for the Law never intended that a Man should be kept in Prison after he had paid the debt In this Case the Defendant can have no remedy to recover it again of the Marshal because it was not a bare Payment to him but to pay it over again to the Plaintiff and likewise in consideration that he should be discharged from his Imprisonment If it should be objected by the Marshal that the Plaintiff hath an Action of Escape against him and likewise by the Plaintiff that he did not make the Gaoler his Steward or Bayliff to receive his Mony Answ The Gaoler is made his Bayliff to keep the Party in Execution and it would be very hard that when the Prisoner will lay down his Mony in discharge of the Debt that the Gaoler should not have full power to discharge him If he had come in Michaelmas-Term after the long Vacation and informed the Court that he had offered to pay the Execution Mony to the Marshal and that he would not take it and that the Plaintiff could not be found the Court would have made a Rule to help him Mr. Holt contra If the Payment had béen good to the Sheriff or Marshal yet 't is not pleadable to the second Execution because 't is matter in fact That which hath been objected that the Party shall plead to a second Execution that his Goods were taken by a former Fieri Facias cannot be for no such Plea can be good because by that Writ the Sheriff hath express Authority to levy the Mony and the Plea is not Payment to the Sheriff but that the Mony was levyed by him by virtue of the Writ which ought to be brought into the Court and an Audita Querela lies against the Plaintiff and then the Defendant is to be bailed 1 Leon. 141. Askew versus the Earl of Lincoln Jones and Rainsford were of Opinion that the Defendant might have remedy against the Marshal to recover his Mony again and that the Payment to him was no discharge to the Plaintiff at whose Suit he was in Execution But Iustice Wyld was of another Opinion Quaere The Lord Marquess of Dorchester's Case In Communi Banco IN a Scandalum Magnatum Visne not changed in a Scandalum Magnatum Serjeant Pemberton moved to have good Bail which the Court denied and said that in such Case Bail was not requirable but notwithstanding the Defendant consented to put in 50 l. Bail And then upon the usual Affidavit moved to change the Visne the Action being laid in London which was opposed by the Serjeant who desired that it might be tried where it was laid but he said in this Case that the Visne could not be changed 1. Because the King is a Party to the Suit for 't is tam pro Domino Rege quam pro seipso 2. The Plaintiff is a Lord of Parliament which is adjourned and will meet and therefore it would be inconvenient to try the Cause in the Country since the Service of the King and Kingdom both require his Attendance here and he said that upon the like Motion in B. R. between the Lord Stamford and Needham the Court would not change the Visne North Chief Iustice said that he always took it as a current Opinion that in a Scandalum Magnatum the Visne could not be changed for since it was in the nature of an Information it being tam quam 't was advisable whether it was not within the Statute of 21 Jac. which doth appoint Informations to be tried in their proper Counties But Iustice Atkins inclined that the Visne might be changed for though by the Wisdom of the Law a Iury of the Neighbourhood are to try the Cause yet in point of Iustice the Court may change the Visne to which it was objected that then there would be no difference between local and transitory Actions Actions of Debt and Accompt shall be brought in their proper Counties 6 R. 2. and it was agreed that an Attorney is sworn to bring Actions no where else But the Court not agréeing at last the Defendant was willing that the Cause should be tried in London if the Plaintiff would consent not to try it before the first Setting in the next Term. And as to that reason offered why the Visne should not be changed because the Plaintiff was a Lord of Parliament Iustice Atkins said that did not satisfie him it might be a good ground to move for a Trial at the Barr to which it was answered that in the Case of the Earl of Shaftsbury the Court would not grant a Tryal at the Barr without the Consent of the Defendant The Visne was not changed Beaver versus Lane COvenant made to Baron and Feme Covenant to Baron and Feme the Baron alone may bring the Action the Husband alone brings the Action quod teneat ei conventionem secundum formam effectum cujusdam Indenturae inter Querentem ex una parte Defendentem ex altera parte confect ' and this was for not repairing his House After Verdict for the Plaintiff it was moved in Arrest of Iudgment because of this variance But the Court Ordered that the Plaintiff should have his Iudgment for the Indenture being by Baron and Feme it was therefore true that it was by the Baron and the Action being brought upon a Covenant concerning his Houses and going with them though it be made to him and his Wife yet he may refuse quoad her and bring the Action alone And the Chief Iustice said that he remembred an Authority in an old Book that if a Bond be given to Baron and Feme the Husband shall bring the Action alone which shall be looked upon to be his refusal as to her Calthrop versus Phillips THE Question was Supersedeas must be delivered by the old Sheriff to the new one Mod. Rep. 222. in regard a Supersedeas is not returnable in the Court whether the old Sheriff is bound to deliver it over to the new one or no and it was urged that it ought not because the old Sheriff is to keép it for his indempnity and he may have occasion to plead it But on the other side it was insisted by Serjeant George Strode that it ought to be delivered to the new Sheriff and that there was a Writ in the Register which proved it fol. 295. and if it should be otherwise these inconveniences would follow 1. It would be
by Serjeant Jones that they should not pass for though Lands would pass so by a Fine because it was the Agreement of the Parties yet in a Recovery 't is otherwise because more certainty is required therein But in Fines no such Certainty is required and therefore a Fine de Tenementis in Golden-Lane hath beén held good though neither Vill Parish or Hamlet is mentioned Cro Eliz. 693. Cro. Jac. 574. Addison and Ottoway Postea But there being a Vill called Walton in the Parish of Street and a Fine being levyed of Land in Street the Lands in Walton did not pass unless Walton had béen an Hamlet of Street and the Fine had beén levied of Lands in the Parish of Street And the reason of this difference is because in Fines there are Covenants which though they are real in respect of the Land yet 't is but a personal Action in which the Land is not demanded ex directo but in a Recovery greater preciseness is required that being a Praecipe quod reddat where the Land it self is demanded and the Defendant must make Answer to it Cro. Jac. 574 5 Co. 40. Dormer's Case The Word * Antea 41. Liberty properly signifies a Right Priviledge or Franchise but improperly the extent of a place Hill 22 23 Car. 2. Rot. 225. B. R. Waldron's Case Hutton 106. Baker and Johnson's Case Liberties in Iudgment of Law are incorporeal and therefore 't is absurd to say that Lands which are corporeal shall be therein contained They are not permanent having their existence by the Kings Letters Patents and may be destroyed by Act of Parliament they may also be extinguish'd abridged or increased and a Vinire fac of a * Rast Ent. 267. Liberty or Franchise is not good 't is an equivocal Word and of no signification that is plain and therefore is not to be used in real Writs Rast Entr. 382. There is no Praecipe in the Register to recover Lands within a Liberty neither is there any authority in all the Law Books for such a Recovery and therefore if such a thing should be allowed many inconveniences would follow for a good Tenant to the Praecipe would be wanting and the intent of the Parties could not supply that But Barton Serjeant said that this Recovery would pass the Lands in Cotton for as to that purpose there was no difference betweén a Fine and a Recovery Postea 2 Roll. Abr. 20 Godb. 440. they are both become Common Assurances and are to be guided by the agreément of the Parties Cro. Car. 270 276. 'T is true a Fine may be good of Lands in an Hamlet Lieu conus or Parish 1 H. 5. 9. Cro. Eliz. 692. Jones 301. Cro. Jac. 574. Monk versus Butler Yet in a * Godb. 440. contra Scire Fac̄ to have Execution of such Fine the Vill must be therein mentioned Bro. Brief 142. The demand must be of Lands in a Vill Hamlet or at farthest in a Parish Cro. Jac. 574. And of that Opinion was the whole Court absente Ellis who was also of the same Opinion at the Argument and accordingly in Michaelmas Term following Iudgment was given that by this Recovery the Lands in Cotton did well pass And North Chief Iustice denied the Case in Hutton 106. Postea to be Law where 't is said A Common Recovery of Lands in a Lieu conus is not good and said that it had béen long disputed whether a Fine of Lands in a Lieu conus was good and in King James his time the Law was settled in that Point that it was good and by the same reason a Recovery shall be good for they are both amicable Suits and Common Assurances and as they grew more in practice the Iudges have extended them farther A Common Recovery is held good of an Advowson and no Reasons are to be drawn from the Visne or the Execution of the Writ of Seisin because 't is not in the Case of adversary Procéedings but by Agréement of the Parties where 't is to be presumed each knows the others meaning Indeed the Cursitors are to blame to make the Writ of Entry thus and ought not to be suffered in such practice Where a Fine is levied to two the Fée is always fixed in the Heirs of one of them but if it be to them and their Heirs yet 't is good though incertain but a Liberty is in the nature of a Lieu conus and may be made certain by Averment The Iury in this Case have found Cotton to be a Vill in the Liberty of Shrewsbury and so 't is not incorporeal Alford versus Tatnel JVdgment against two who are both in Execution Mod. Rep. 170. and the Sheriff suffers one to escape the Plaintiff recovers against the Sheriff and hath satisfaction the other shall be discharged by an Audita Querela Osbaston versus Stanhope General Replication good DEBT upon Bond against an Heir who pleaded that his Ancestor was seised of such Lands in Fee and made a Settlement thereof to Trusteés by which he limited the Vses to himself for Life Remainder to the Heirs Males of his Body Remainder in Feé to his own right Heirs with power given to the Trusteés to make Leases for threé Lives or 99 years The Trustées made a Lease of these Lands for 99 years and that he had not Assets praeter the Reversion expectant upon the said Lease The Plaintiff replies protestando that the Settlement is fraudulent pro placito saith that he hath Assets by discent sufficient to pay him and the Defendant demurrs Ex parte Def. Newdigate Serjeant The Barr is good for the Plaintiff should not have replied generally that the Defendant hath Assets by discent but should have replyed to the praeter Hob. 104. Like the Case of Goddard and Thorlton Yelv. 170. where in Trespas the Defendant pleaded that Henry was seised in Fee who made a Lease to Saunders under whom he derived a Title and so justifies The Plaintiff replies and sets forth a long Title in another person and that Henry entred and intruded The Defendant rejoyns that Henry was seised in Fée and made a Lease ut prius absque hoc that intravit se sic intrusit and the Plaintiff having demurred because the Traverse ought to have been direct viz. absque hoc quod intrusit and not absque hoc that Henry intravit c. it was said the Replication was ill for the Defendant having alledged a Seisin in Fée in Henry which the Plaintiff in his Rejoynder had not avoided but only by supposing an intrusion which cannot be of an Estate in Fée but is properly after the death of Tenant for Life for that reason it was held ill Ex parte Quer. But Pemberton Serjeant for the Plaintiff held the Replication to be good The Defendants Plea is no more than Riens per descent for though he pleads a Reversion 't is not chargeable because 't is a Reversion after
is altogether incertain for it doth not appear what is due 28 H. 8. Dyer 28. 9 Ed. 4. 16. 12 H. 8. 6. a. Ex parte Def. But it was argued for the Defendant that he need not Traverse the Accompt As to the first Objection made that the Plea is not good because it doth not answer the Declaration the Rule as to that purpose is generally good but then the Plaintiff must tell all his Case which if he omits he must then give the Defendant leave to tell where his omission is Sometimes a thing which belongs properly to another may be pleaded in bar or discharge to avoid circuity of Actions as one Covenant may be pleaded to another 1 H. 7. 15. 20 H. 7. 4. So where the Lesseé is to be dispunishable of waste he may plead it to a Writ of waste The Books note a difference where the Covenant is one or two Sentences for in the first case one Covenant may be pleaded in discharge of another but not in the last Keilway 34. 'T is true if the second Covenant had been distinct and independent it could not have been thus pleaded but in this Case 't is not said that the Covenantor for himself his Executors and Administrators doth Covenant c. but ulterius agreat̄ provisum est so that as t is penned provisum est makes a Condition and then the sense is I will accompt if you will discompt and if you refuse to discompt I cannot be charged Dyer 6. 'T is inutilis labor to make up an accompt If the other will not allow what he ought if there be an Annuity pro consilio impenso c. and he will not pay the Mony the other is not to be compelled to give his advice Fitzh Annuity 27. 25 E. 2. Annuity 44. Curia The Chief Iustice and the whole Court were of Opinion that Iudgment should be given for the Plaintiff for Arbitrations Wills and Acts of Parliament are to be taken according to the meaning of the Parties and Damages are to be given according to the merit of the Case In this Case the Defendant is bound to accompt upon request and to pay what Mony is due upon the Accompt and 't is an impertinent question for the Defendant to ask him to make allowance for Parsons Dinners before they come to accompt 'T is as if a Bailiff should say to his Lord I have laid out so much Mony and I will not accompt with you unless you will allow it this is a Capitulation before-hand and is very insignificant by way of discharge They have each a remedy upon these mutual Covenants and the provisum agreat̄ est doth not amount to a Condition but is a Covenant and Iudgment was given accordingly Iustice Ellis said he had a Manuscript Report of the Case of Ware and Chappel which he said was adjudged upon great Debate Stoutfil's Case PRohibition Tythes not to be paid for Brick or Pidgeons It was agreed clearly that no Tythes ought to be paid for Brick because 't is part of the Soil and so it has been often adjudged And it was also said that Tythes shall not be paid for Pidgeons unless it be by special Custom Columbel versus Columbel THE Plaintiff brought an Action of Debt upon a Bond of 500 l. Award pleaded under Seal and not under Hand not good The Defendant demands Oyer of the Bond and Condition which was to observe an Award of A. B. Arbitrator indifferently chosen to determine all manner of Controversies Quarrels and Demands concerning the Title of certain Lands so as the said Award were made and put into writing under the Hand and Seal of the Arbitrator c. and then he pleads that the Arbitrator made no Award The Plaintiff replies an Award by which such things were to be done and sets it forth in haec verba under the Seal of the Arbitrator The Defendant rejoyns that the Arbitrator made no Award under his Hand and Seal according to the Condition of the Bond. The Plaintiff demurrs for that the Defendant ought to plead the Award under the Hand as well as the Seal of the Arbitrator for when he produces it in Court as he doth by a profert hic in Curia he must plead it formally as well as produce it and Iudgment was given for the Plaintiff Norris versus Trist Livery secundum formam Chartae where good IN a Special Verdict in Ejectment The Case was A Deéd is made to threé Habendum to two for their Lives Remainder to the third for his Life and Livery and Seisin is made to all thrée secundum formam Chartae And whether the Livery so made as if they had all Estates in possession whereas in truth one of them had but an Estate in Remainder was good was the Question On the one side it was said by Serjeant Seys that possession in this Case was delivered according to the form of the Deéd within mentioned which must be to two for Life Remainder to the third person and Livery and Seisin being only to accomplish and perfect the Common Assurances of the Land ought to be taken favourably ut res magis valeat quam pereat and therefore if a Feoffment be made of two Acres and a Letter of Attorny to give Livery and the Attorny only enters into one Acre and gives Livery secundum formam Chartae both the Acres pass Dyer 131 40. Coke Litt. 52. a. But on the other side Serjeant Maynard said that there was something more in this Case than what had béen opened for there was a Letter of Attorney made to give Livery to two and instead of doing that he makes Livery to them all which is no good Execution of his Authority and therefore no Livery was made the Authority not being pursued As to the Case in the 1st Institutes my Lord Coke errs very much there in that discourse for in saying that if there be a Feoffment of two Acres and a Letter of Attorney to take possession of both and he maketh Livery of both but taketh possession but of one and that both pass 't is not Law but if the Authority be general as to make Livery and Seisin and he take possession of one and then makes Livery of more secundum formam Chartae that is good and this is the difference taken in the Books 5 Ed. 3. 65. 3 Ed. 3. 32. 43 Ed. 3. 32. 27 H. 8. 6. The Remainder Man in this Case is a méer Stranger to the Livery There is also a manifest difference betwéen a Matter of Interest and an Execution of an Authority for in the first Case it shall be construed according to the Interest which either hath but an Authority must be strictly pursued The Court were all of Opinion that the Livery in this Case was good to two for their Lives Remainder to the third person Curia And the Chief Iustice said that whatever the ancient Opinions were about pursuing
any other thing which lies in Grant and the Deed is lost or cancelled the Office or the thing granted falls to the ground for the Deed is the foundation and a Case was cited in the Lord Dyer If there be two Iointenants and one cancels the Deed it hath destroyed the Right of the other Quaere of these things But it was agreed that if two Men who have one Office for their Lives and the survivor of them if one surrenders to the other and then a new Grant is made to this other and a Stranger he hath debarred himself of the Survivorship and he and the Stranger are jointly seised Crossman versus Sir John Churchil IN a Quare Impedit the Plaintiffs Title was set forth in his Declaration which was also found in a Special Verdict Where an Agreement for a Presentation by turns is good that Sir George Rodney was seised of the Advowson in Fée and died seised leaving two Sisters who were his Coheirs that Sir John Rodney being also one of the same Family and pretending a Right to the Estate for preventing Suits that might happen they all enter into an Agréement by Indentures mutually executed by which it was agreed that Sir John Rodney shall hold some Lands in severalty and the Co-heirs shall hold other Lands in the like manner and as for this Advowson a temporary provision was made thereof that each of them should Present by turns and this was to continue till partition could be made then comes an Act of Parliament and confirms the Indenture and Enacts That every Agreement therein contained shall stand and that all the rest of the Lands not particularly named and otherwise disposed by the said Indenture should be held by these three in common one of the three who by Agréement was next to Present grants the next Avoidance the Church being then full to the Plaintiff and the Question was whether these threé persons were not Tenants in Common of the Advowson and if so then the Grant of the next Avoidance cannot be good by one alone because he hath not the whole Advowson but only a Right to the third part It was said that if Tenants in Common had made such an Agreément it would not have beén any division of their interest for there must be a partition to sever the Inheritance The Court were all of Opinion Curia that Iudgment should be given for the Plaintiff for there was an Agréement that there shall be a Presentation by turns and therefore for one turn each hath a Right to the whole Advowson by reason of the Act of Parliament by which that Agreement is confirmed and thereby an Interest is setled in each of them till Partition made but this Agreement would have vested no Interest in either of them without an Act of Parliament to corroborate it therefore there had been no remedy upon it but by an Action of Covenant This Case was argued four times and not one Authority cited The Earl of Shaftsbury versus Lord Digby In Banco Regis For Words upon the Statute of 2 R. 2. c. 5. Jones 49. SCandalum Magnatum The Plaintiff declares upon the Statute of 2 R. 2. cap. 5. for these Words viz. You are not for the King but for Sedition and for a Common-wealth and by God we will have your Head the next Sessions of Parliament After Verdict for the Plaintiff and 1000 l. damages given it was moved in Arrest of Iudgment and several Exceptions taken 1. As to the Recital of the Statute the Words of which are That no Man shall devise any Lies c. and the Plaintiff for the Word devise had used the Latin Word contrafacio in his Declaration which was very improper that being to counterfeit and not to devise for it should have béen machino or fingo those are more expressive Words of Devise 2. 'T is alledged that the Defendant dixit mendacia of the Plaintiff viz. haec Anglicana verba sequen̄ and doth not alledge that he spoke the Words 3. The most material Objection was a mistake in the Recital of the Statute the Words of which are That none shall speak any scandalous Words of any Dukes Earls c. the Justices of either Bench nor of any other great Officer of the Kingdom but the Plaintiff in his Declaration recites it thus viz. None shall speak any scandalous Words of any Dukes Earls c. Justices of either Bench great Officers of the Kingdom and leaves out the Words neque al so that it must be construed thus None to speak of any Dukes Earls c. being great Officers of the Kingdom and then 't is not enough that the Plaintiff is Comes but he also ought to be a great Officer of the Kingdom which is not set out in this Case But upon great Debate and Deliberation these Exceptions were overruled and the whole Court gave Iudgment for the Plaintiff As to the first Exception they said contrafacio is a legal Word and apt enough in this sense and so are all the Presidents and thus it was pleaded in the Lord Cromwel's Case As to the second Exception it was said the Mendacia which were told were the English Words which were spoken and the viz. haec Anglicana verba sequen̄ being in the Accusative Case are governed by the same Verb which governs the Words precedent viz. horribilia mendacia Besides for the supporting of an Action the viz. may be transposed and then it will be well enough viz. the Defendant spoke haec Anglicana verba viz. Lies of the Plaintiff As to the third Exception it was answered that the Plaintiff neéd not recite the Statute it being a * Sid. 348. general Law and admitting there was no necessity yet if he will undertake to recite it and mistake in a material Point 't is incurable but if he recites so much as will serve to maintain his own Action truly and mistakes the rest this will not vitiate his Declaration and so he hath done here by reciting so much of the Statute which Enacts That no Man shall speak any scandalous Words of an Earl which is enough he being an Earl to entitle him to an Action and he concludes prout per eundem Actum plenius liquet and the Court grounded themselves principally upon a Iudgment given in this Court which was thus viz. There was a Robbery committed and the Party brought an Action upon the Statute of Huy and Cry in which he recited incendia domorum 13 E. 1. cap. 1. the said Statute beginning Forasmuch as from day to day Robberies Murders burning of Houses c. and the Presidents are all so But the Parliament Roll is Incendia generally without domorum and it was strongly urged that it was a misrecital which was fatal But the Court were all of Opinion that the Plaintiffs Case being only concerning a Robbery for which the Statute was well recited and not about burning which was mistaken it was for that reason good
of Lands Tenements and Hereditaments 't was adjudged entailed Lands did not pass do not concern this Case but now since they are made forfeitable by that Statute such general words are sufficient to serve the turn By the Statute of 16 R. 2. cap. 5. entailed Lands are not forfeited in a Praemunire but during the Life of Tenant in Tail because they were not then to be forfeited for Treason 2 Inst 334. 1 Inst 3. Co. Lit. 130. If then it appears that the Crime of which Sir John Danvers was guilty was Treason and if entailed Lands are forfeited for Treason then when the Act saith That he shall forfeit all his Lands by those general Words his entailed Lands shall be forfeited And though by the Common Law there can be no Attainder in this Case the Party being dead yet by Act of Parliament that may be done and the words in this Act amount to an Attainder The intent of it was to forfeit Estates Tail which may be collected from the general Words for if a Fee-simple is forfeited though not named why not an Estate Tail especially since the word Hereditaments is very comprehensive and may take in both those Estates Spelman's Glossary 227. 2 Roll. Rep. 503. In the very Act of 26 H. 8. cap. 13. Estates Tail are not named for the Words are Every Offender convict of Treason c. shall forfeit all such Lands Tenements and Hereditaments which he shall have of any Estate of Inheritance in use possession or by any Right Title or Means c. and yet a Construction hath been made thereupon in favour of the Crown so a Dignity of an Earldom intailed is forfeitable by this Statute by the Word Hereditament 7 Co. 34. Afterwards in Hillary Term Rainsford Chief Iustice delivered the Opinion of the Court Judgment That upon Construction of the Act of Pains and Penalties this Estate Tail was forfeited to the King He agreed the Series and progress of Estates Tail to have been as argued by the Solicitor and that the Question now was whether by the Act of Pains c. Estates Tail can be forfeited unless there are express Words to take away the force of the Statute de donis conditionalibus Preface to 3 Co. for by that Statute there was a settled perpetuity Tenant in Tail could neither forfeit or alien his Estate no not in Case of Treason and Forfeiture is a kind of Alienation but afterwards by the Resolution in Ed. 4. an Alienation by a Common Recovery was construed to be out of the said Statute and by the Statute of Fines 4 H. 7. which is expounded by a subsequent Statute of 32 H. 8. cap. 36. Tenant in Tail notwithstanding his former restraint had power to alien the Estate Tail and barr his Issue but all this while his Estate was not to be forfeited for Treason till the Statute of 33 H. 8. cap. 20. which gives Uses Rights Entries Conditions as well as Possessions Reversions Remainders and all other things of a person attainted of Treason by the Common or Statute Law of the Realm to the King as if such Attainder had been by Act of Parliament Then by the Statute of 5 6 Ed. cap. 11. 't is Enacted That an Offender being guilty of High Treason and lawfully convict shall forfeit to the King all such Lands Tenements and Hereditaments which he shall have of any Estate of Inheritance in his own Right in Use or Possession by which Statutes that de donis conditionalibus was taken off in Cases of Treason as it had been before by the resolution in 12 E. 4. and by the Statute of Fines as to the Alienation of an Estate Tail by Fine and Recovery If therefore this Act of Pains c. will admit of such a construction as to make Estates Tail forfeit here is a Crime great enough to deserve such a great punishment a Crime for which the Parliament hath ordered an Anniversary to be kept for ever with Fasting and Humiliation to implore that the Guilt of that innocent Blood then shed may not be required of our Posterity this they esteemed as another kind of Original Sin which unless thus expiated might extend not only ad Natos sed qui nascantur ab illis And that this Act will admit of such a Construction these Reasons were given 1. From the general comprehensive Words mentioning those things which are to be forfeited viz. Messuages Lands Tenements Reversions and Interests which last Word signifies the Estate in the Land as well as the Land it self or otherwise the Word must be construed to have no effect 2. Estates Tail are not now protected by the Clause in the Statute de donis * Inst 334. Non habet potestatem alienandi but are subject to the forfeiture by the Act of H. 8. which though it extends to Attainders only yet 't is a good Rule for the Iudges to make a Construction of an Act of Parliament by especially in such a Case as this wherein 't is plain that the Law did look upon these Offenders if not attainted yet in pari gradu with such persons and therefore may be a good Warrant to make the like Construction as in Cases of Attainder 3. Because the Offenders are dead for had they béen living there might have been better reason to have construed this Act not to extend to Estates Tail because then something might be forfeited viz. an Estate for Life and therefore the Act would signifie very little if such Construction could not be made of it to reach Estates Tail of such persons who were dead at the time of the making the Law especially since 't is well known that when Men engage in such Crimes they give what Protection they can to their Estates and place them as far as they can out of danger 4. It appears by the Act that the Law-makers did not intend that the Children of such Offenders should have any benefit of their Estates because in the Proviso there is a saving of all Estates of Purchasers for Mony bona fide paid and therein also a particular Exception of the Wife and Children and Heirs of the Offenders and if the Act would not protect the Estate of the Children though they should be Purchasers for a valuable consideration it will never protect their Estate under a voluntary Conveyance made by the Ancestor especially in this Case because the Entail carries a suspicion with it that it was designed with a prospect to commit this Crime for Sir John Danvers was Tenant in Tail before and in the year 1647. levies a Fine to barr that Entail and then limits a new Estate Tail to himself in which there is a Provision to make Leases for any number of years upon what Lives soever in Possession or Reversion with Rent or without it and this was but the year before the Crime committed 5. The Proviso in the Act for saving the Estates of Purchasers doth protect all Conveyances and
Assurances c. of Land not being the Lands of the late King Queen Prince c. and not being Land sold for any pretended Delinquency since the first of June 1641. and all Statutes and Judgments suffered by the Offenders from being impeached from which it appears that the Parliament lookt upon entailed Lands as forfeited for if Estates made to others upon a valuable consideration had need of a Proviso to save them from Forfeiture à fortiori the Estates out of which those are derived have need of such a saving and therefore must be forfeit by the Act for which Reasons these Lands are forfeited As to the great Objection which hath been made and insisted on the other side and which is Trudgeons Case 22 Eliz. 1 Inst 130. Where Tenant in Tail was attainted in a Praemunire and it was adjudged that he should forfeit his Land but during his Life for though the Statue of 16 R. 2. cap. cap. 5. Enacts That in such Case their Lands Tenements Goods and Chattels shall be forfeited to the King yet that must be understood of such an Estate as he may lawfully forfeit and that is during his own life and therefore being general Words they do not take away the force of the Statute de donis so that his Lands in Fee-simple for life c. shall be forfeited but the Land entailed shall not during his life But the Answer is plain For in the Reign of R. 2. when the Statute of Praemunire was made Estates Tail were under a Perpetuity by the said Statute de donis which Statute is now much weakened in the Point of Alienation and the Law is quite altered since that time and 't is apparent by multitude of Presidents that such strict Constructions have not been made since that time to preserve Estates Tail from Forfeitures without special and particular Words 4 Co. 164. and therefore in the Case of Adams and Lambert which is a Case in Point the Iudges there construed Estates Tail to be forfeit for want of special Words in the Statute of 1 E. 6. cap. 14. to save it and that was only a Law made for suppressing of superstitious Vses upon a politick consideration but this is a much greater Offence intended to be punished by this Act in which there are demonstrations both from the Words and intent of the Law-makers to make this Estate forfeited to the Crown than in that Case so much relied on And Iudgment was given accordingly Wyld died before Iudgment was given but Iustice Twisden said he was of that Opinion and Jones Iustice concurred Basset versus Salter After an Escape the Plaintiff may have a Ca. Sa. or Sci. Fa. against the Sheriff IN an Action for an Escape the Question was whether the Plaintiff may take out a Ca. Sa. or have a Fi. Fa. against the Defendant after the Sheriff or Gaoler voluntarily suffer him to escape but the Court would not suffer it to be argued because it had been lately settled that it was at the Election of the Plaintiff to do either and upon a Writ of Error brought in the Exchequer-Chamber the Iudges there were of the same Opinion But in the Lord Chief Iustice Vaughan's time the Court of Common Pleas were divided but 't is since settled 1 Roll. Abridg. 901 902. If there be an Escape by the Plaintiffs consent though he did not intend it the Law is hard that the Debt should be thereby discharged as where one was in execution in the Kings Bench and some Proposals were made to the Plaintiff in behalf of the Prisoner who seeing there was some likelyhood of an Accomodation consented to a Meeting in London and desired the Prisoner might be there who came accordingly and this was held to be an Escape with the * If it had been by the consent of the Sheriff he could never take him again but the Plaintiff might Sid. 330. consent of the Plaintiff and he could never after be in Execution at his Suit for the same Matter Peck versus Hill In Communi Banco Bond good given in discharge of another Mod. Rep. 221. DEBT upon a Bond brought against the Defendant as Administrator who pleads that he gave another Bond in his own Name in discharge of the first Bond and upon Issue joined it was found for the Defendant and it was moved that Iudgment might not be entred hereupon because it was a bad Plea But North Chief Iustice and Wyndham and Scroggs Iustices were of Opinion that it was a good Plea because there was other Security given than what the Plaintiff had before for upon the first Bond he was only lyable de bonis Intestatoris but now he might be charged in his own Right Co. Lit. 122. b. which may be well said to be in full satisfaction of the first Obligation for where the Condition is for payment of Mony to the Party himself there if he accept any collateral thing in satisfaction 't is good If a Security be given by a Stranger it may discharge a former Bond and this in effect is given by such And 't is not like the Case in Hobert where a Bond was given by the same Party upon that very day a former Bond was payable and adjudged not a good discharge for the Obligee was in no better condition than he was before Iustice Atkins doubted but inclined that one Bond cannot be discharged by giving another though the Discharge be applied to the Condition of the Bond and for this he cited Cro. Car. 85. Cro. Eliz. 716 727. which was a Case adjudged so in Point and therefore this Plea upon Demurrer should have been over-ruled yet since Issue was taken upon it and a Verdict for the Defendant the Plea is helped by the Statute of Jeofails 32 H. 8. here being a direct Affirmative and Negative But as to that the Chief Iustice and Scroggs Iustice replied that an immaterial Issue no ways arising from the Matter is not helped as an Action of Debt upon a Bond laid to be made in London and the Defendant saith that it was made in Middlesex and this is tried 't is not aided by the Statute but there must be a Repleader But because it was sworn that the Obligor who was the intestate was alive four years after the time that the second Bond was given and for that reason it could not be given upon the accompt of the Defendants being liable as Administrator but must be intended a Bond to secure a Debt of his own therefore a new Trial was granted Cook and others versus Herle Covenant will lie in the personalty tho' the Grant be executed by the Statute of Uses which makes a Distress the proper remedy Mod. Rep. 223. IN Covenant the Case was this Charles Cook made a Iointure to Mary his Wife for life and died without Issue the Land descended to Thomas Cook his Brother and Heir who grants an Annuity or Rent Charge of 200 l. per
the understanding of the Statute of 2 R. 2. cap. 5. upon which this Action of Scandalum Magnatum was grounded to consider the occasion of the making of it In those days the English were quite of another Nature and Genius from what they are at this time the Constitution of this Kingdom was then Martial and given to Arms the very Tenures were Military and so were the Services as Knights Service Castleguard and Escuage There were many Castles of defence in those days in the hands of private Men their Sports and Pastimes were such as Tilts and Turnaments and all their Imployments were tending to bréed them up in Chivalry Those who had any dependency upon Noble Men were enured to Bows and Arrows and to signalize themselves in Valour it was the only way to Riches and Honour Arts and Sciences had not got such ground in the Kingdom as now but the Commons had almost their dependance upon the Lords whose Power then was exceéding great and their Practices were conformable to their Power and this is the true Reason why so few Actions were formerly brought for Scandals because when a Man was injured by Words he carved out his own Remedy by his Sword There are many Statutes made against riding privately armed which Men used in those days to repair themselves of any Injury done unto them for they had immediately recourse to their Arms for that purpose and seldom or never used to bring any Actions for damages This was their Revenge and having thus made themselves Iudges in their own Cases it was reasonable that they should do themselves Iustice with their own Weapons but this Revenge did not usually end in private Quarrels they took Parties ingaged their Friends their Tenants and Servants on their sides and by such means made great Factions in the Commonwealth by reason whereof the whole Kingdom was often in a flame and the Government as often in danger of being subverted so that Laws were then made against wearing Liverys or Badges and against riding armed This was the mischief of those times to prevent which this Statute of R. 2. was made and therefore all provoking and vilifying Words which were used before to exasperate the Peers and to make them betake themselves to Arms by the intent of this Act are clearly forbidden which was made chiefly to prevent such consequences for it was to no purpose to make a Law and thereby to give a Péer an Action for such Words as a common person might have before the making of the Statute and for which the Peer himself had a Remedy also at the Common Law and therefore needed not the help of this Act. If then the design of this Statute was to hinder such practices as aforesaid the next thing to be considered is what was usual in those days to raise the Passions of Peers to that degreé and that will appear to be not only such things as imported a great Scandal in themselves or such for which an Action lay at the Common Law but even such things as savoured of any Contempt of their persons and such as brought them into disgrace with the Commons for hereby they took occasion of Provocation and Revenge 'T is true that very few Actions were brought upon this Statute in some considerable time after it was made for though such practices were thereby prohibited the Lords did not presently apply themselves to the Remedy therein given but continued the Military way of Revenge to which they had béen accustomed As to the first Objection that hath been made he gave no answer to it because it was not much insisted upon on the other side whether an Action would lye upon this Statute for the very words of it are sufficient ground for an Action and 't is very well known that whereever an Act prohibits an evil thing Maxim the person against whom such thing is done may maintain an Action This Statute consists of two parts the first is prohibitory Vide Ante. Viz. That no Man shall do so c. Then comes the additional Clause and saith That if he do he shall incur such Penalty 'T is on the first part that this Action is grounded and so it was in the Earl of Northampton's Case in that Report which goes under the name of the Lord Coke's 12th Report where by the Resolution of all the Iudges in England except Flemming who was absent it was adjudged that it was not necessary that any particular Crime should be fixed on the Plaintiff or any Offence for which he might be indicted So are the Authorities in all the Cases relating to this Action In the Lord * 4 Co. 13. b. 2 Cro. 196. Cromwel's Case for these Words You like those who maintain Sedition In the Lord of Lincoln's Case My Lord is a base Earl and a paultry Lord and keepeth none but Rogues and Rascals like himself In the Duke of Buckingham's Case He has no more Conscience than a Dog In the Lord * Hill 16 Car. 2 Rot. 1269. Affirmed in a Writ of Error in B R. Marquess of Dorchester's Case He is no more to be valued than the Black Dog which lies there All which Words were held actionable and yet they touch not the persons in any thing concerning the Government or charge them with any Crime but in point of Dignity or Honour And they were all villifying Words and might give occasion of Revenge And so are the Words for which this Action is brought they are rude uncivil and ill natured Unworthy is as much as to say base and ignoble a contemptible Person and a Man of neither Honour or Merit And thus to speak of a Nobleman is a Reflection upon the King who is the Fountain of Honour that gives it to such persons who are in his Iudgment deserving by which they are made capable of advising him in Parliament and it would be very dishonourable to call unworthy Men thither 'T is likewise a dishonour to the Nobility to have such a person to fit among them as a Companion and to the Commons to have their proceedings in Parliament transmitted to such Peérs so that it tends to the dishonour of all Dignities both of King Lords and Commons and thereby discords may arise between the two Houses which is the Mischief intended to be remedied by this Act. Then the following Words are as scandalous for to say A Man acts against Law and Reason imports several such acts done a Man is not denominated to be unworthy by doing of one single Act for in these Words more is implied than to say he hath done an unworthy thing for the Words seem to relate to the Office which the Plaintiff had in the Country as Lord Lieutenant which is an Office of great Honour and can any thing tend to cause more discord and disturbance in the Kingdom than to say of a great Officer That he acts according to the dictates of his Will and Pleasure the consequence
upon complaint made and Conviction he shall forfeit 500 l. so that as to himself whatever he doth in his Office is void but it was never the intent of the Act to work a Mischief or Wrong to Strangers for the Law favours what is done by one in reputed authority as if a Bishop be created who upon a Presentation made admits a Parson to a Benefice or collates by Lapse the former Bishop not being deprived or removed such acts are good and not to be avoided Cro. Eliz 699. Cro Car. 97. 2 Cro. 260. But admitting it to be an Error it cannot now be assigned for such because the Parties in Pleading have allowed the proceedings to be good upon Record and there is Iudgment against the Defendant but if he had been taken upon that Iudgment he might have brought an Action of false Imprisonment 2 Cro. 359. Cro. Eliz. 320. Wild Iustice You shall not assign that for Error which you might have pleaded especially having admitted it by pleading and one Musgrave's Case was cited which was that there is an Act of Parliament which lays a Tax upon all Law proceedings and makes them void if the Kings Duty be not paid and it was adjudged That if the Duty was not paid but admitted in pleading you shall not afterwards alledge what before was admitted viz. That the Duty was not paid Vpon a Writ of Error in Parliament it cannot be assigned for Error that the Chief Iustice of the Kings-Bench had not taken this Oath the same might be also of a Writ of Error in the Exchequer Chamber for an Error in Fact cannot be there assigned Sid. 253. but at the last the Iudgment was Reversed See the Reasons thereof by the Chief Iustice Jones in his Reports folio 81. Higginson versus Martin in C. B. IN an Action of Trespass and false Imprisonment If Cause of Action doth not arise within the Jurisdiction tho' Judgment is given below an Action will lie here the Defendant justifies by Process issuing out of the Court of Warwick upon a Iudgment obtained there and sets forth that there was a Plaint there entered in placito transgressionis to which the Defendant appeared super quo taliter processum fuit that Iudgment was given against him upon which he was taken and Imprisoned The Plaintiff replies That the Cause of Action did not arise within the Iurisdiction of that Court. The Defendant rejoyns that the Plaintiff is now estopped to say so for that the Declaration in the Inferiour Court against the now Plaintiff did alledge the cause of Action to be infra jurisdictionem of the Court to which he pleaded and Iudgment was given against him The Plaintiff demurrs And Newdigate Serjeant took Exceptions to the Plea 1. Ex parte Quer. 'T is said a Plaint was entered in placito transgressionis but 't is not said what kind of Trespass it was whether a clausum fregit or other Trespass 2. 'T is said that the Defendant appeared super quo taliter processum fuit that Iudgment was given for the Plaintiff Antea and no mention was made of any Declaration and the pleading taliter processum est in an Inferiour Court is not good 3. The Iustification is ill because the Inferiour Court had no Iurisdiction and so the Proceedings are coram non Judice for the Plaintiff in his Replication saith That the Trespass for which the Recovery was had in the Court of Warwick Moor 422. Latch 180. Cro. Jac. 184. was done at a place out of the Iurisdiction of the Court which the Defendant hath admitted by relying on his Plea by way of Estoppel 4. It did not appear by what Authority the Court at Warwick was held whether by Grant or Prescription These Exceptions were answered by Serjeant Hopkins Ex parte Def. and first he said That the Plaintiff there sets forth that levavit quandam querelam in placito transgressionis which was well enough Secondly taliter processium fuit is the shorter and better way of Pleading and therefore in a Scire Facias nothing is recited but the Iudgment 't is true in a Writ of Error the whole Record must be set out but that is not necessary here Thirdly 't is too late now to question the Iurisdiction of the Inferiour Court after the Party hath admitted it below he ought first to have pleaded to the Iurisdiction but now is Estopped by his own admittance there and since Iudgment is given upon it 't is not now to be questioned but however this being in the Case of an Officer if it was out of the Iurisdiction he is bound to execute the Process of the Court and so this is a good excuse for him Dyer 61. 10 Co. 77. But let the Pleadings be good or bad if the Declaration here be ill the Plaintiff cannot have Iudgment and that it was so he said that the Writ alledged an Imprisonment generally but the Count an Imprisonment donec he paid 5 l. 10 s. which is variant and the Prothonotaries said that the Writ used always to mention donec c. Curia But the Court were all of Opinion that the Count was well enough for there was no matter therein contained which was not in the Writ the Imprisonment was the Gist of the Action and the donec c. might have been given in Evidence because 't is only an aggravation and a consequence of the Imprisonment so that the Count is not larger but more particular than the Writ And as to the two first Exceptions the Court was also of Opinion that there was no difficulty in them or in the last Exception but thought the Plea was well enough as to those And they also agreed that the Officer in this Case was to be discharged for though the Process be erronious yet he is to obey and not to examine 2 Cro. 3. Weaver versus Clifford The great doubt in this Case was upon the third Exception as to the point of Iurisdiction Sid. 151. Latch 181. and whether the other Defendant who was the Plaintiff below should be likewise discharged was the Question And as to that the Chief Iustice and Wyndham Iustice were of Opinion That this was no good justification as to the Plaintiff below for if the cause of Action did arise without the Iurisdiction of which he is bound to take notice the proceedings quoad him are all coram non Judice and he cannot justifie the serving of any Process so that if the Trespass was done out of the Iurisdiction of the Court the Defendant below may bring an Action against the Plaintiff and is not concluded here by the proceedings there but may alledge the cause of Action to arise out of the Iurisdiction and as to his being Estopped by admitting of the Iurisdiction below that cannot be because an admittance cannot give the Court a Iurisdiction where it had none originally and so he said it was resolved in one Squib's Case in a
reason the Iury might find for him 'T is true he might have pleaded Plene computavit which is the general Plea But it may as well be presumed that the Verdict was against the Plaintiff because the Action would not lye and the Matter being in dubio the Court will intend it against the Pleader he not having averred to the contrary and so they held the Plea to be ill DE Termino Paschae Anno 30 Car. II. in Communi Banco Osborn versus Wright ACtion on the Case for words Viz. The Plaintiff declares that she was unmarried but about to marry one J. S. and that the Defendant to hinder her Marriage spoke these Words of her Viz. She is a Whore a Common Whore and N's Whore per quod maritagium amisit The Iury found the Defendant guilty of speaking the Words but that she did not lose her Marriage thereby and it was moved in arrest of Iudgment that these Words are not actionable being only Scolding and of that Opinion was all the Court and Iudgment was arrested Hambleton versus Justice Scroggs alios In Camera Scaccarii Serjeant at Law whether Priviledge to be Sued only in the Common-Pleas AN Assault and Battery was brought against the Defendants in the Kings-Bench to which one of them pleaded that he was a Serjeant at Law and so ought to have his Priviledge to be sued by Bill in the Common Pleas and in no other Court To this Plea the Plaintiff demurred and Iudgment was given in my Lord Chief Iustice Hales's time by the Opinion of him and the whole Court of Kings-Bench That a Serjeant at Law might be sued there and was not suable in the Court of Common-Pleas only 2. That in this Action the Defendant should not have his Priviledge because it was brought against him and another And afterwards a Writ of Error was brought upon this Iudgment returnable before the Lord Chancellor and Chief Iustices of the Kings-Bench and Common-Pleas and the Errors were argued before the two Chief Iustices at Serjeants-Inn in Chancery Lane Mr. Holt for the Plaintiff in the Writ of Error Ex parte Quer. That a Serjeant at Law is to be sued only in the Court of Common-Pleas and not elsewhere because there is an absolute necessity of his Attendance there He is sworn and no other person can plead at that Bar and therefore if he should be sued in any other Court Vaugh. 155. it would be an Impediment to the Business of that Court where not only the Officers but their Servants have Priviledge In the 11th of E. 4. 2. There was some discourse about the Priviledge of Serjeants at Law where it was held that he is not to be sued in that Court by Bill but by Original but either way he is to have his Priviledge So the Servant of an Officer is not to be sued by Bill Cro. Car. 84. but he is still to have the Priviledge of the Court and so had Serjeant Hedley's Clerk in the Reign of King Charles the first The Serjeants receive a kind of Induction to the Bar and have a place assigned them and that they ought to have Priviledge the very Words of the Writ are observable Viz. mentioning a Serjeant at Law ex officio incumbit in Curia illa And though it hath been said and given as an answer to that Case in Cro. Car. That where the Serjeants Clerk was Arrested in an Inferior Court as in that Case he was there he shall have Priviledge but not against the other great Courts in Westminster-Hall this is a difference never yet taken notice of in any Book nor doth the Writ warrant this distinction 2. He shall have his Priviledge though he be joyned with another because the Action is joynt and several and the one may be found guilty and the other acquitted and it would be an easie way to oust a Man of his Priviledge if it might be done by joyning him with another who hath none 14 H. 4. 21. But the Person with whom the Serjeant is joyned may be sued in the Common-Pleas likewise so that he shall not hinder him from having Priviledge who of right ought to have it 10 E. 4. 15. Offley contra As to the first point Ex parte Def. the Court of Kings-Bench agreed that a Serjeant at Law shall always have the Priviledge of the Court of Common-Pleas against all Inferiour Courts but not against the other Courts in Westminster Hall for he may be sued in any of them A Serjeant is not like the Common Officers of the Court for they are to be attendant there and no where else but a Serjeant at Law is not confined to that Court alone he may be assigned of Council in any other Court and doth usually put his hand to Pleas both in the Kings-Bench and the Exchequer but a Philazer or Attorny of that Court cannot practise in his own Name in any other All Cases of Priviledge ought to be taken strictly And that which was cited concerning the Priviledge of a Serjeants Clerk is not like this because the Arrest was in an Inferiour Court In the 11 E. 4. 2. b. The Chief Iustice of the Kings-Bench came to the Common-Pleas Bar and told a Serjeant who he had assigned for a Pauper That if he would not come into that Court and plead for his Clyent he would forejudge him so that if he could be fetch'd out of the Common Pleas and carried to the Kings-Bench he is not confined to that Court alone In the 5 H. 5. nu 10. Complaint was made that the Subjects of the King were not well served in his Courts the Parliament thereupon Ordered that one Martin and others should take upon them the Dignity of Serjeants at Law so that it appears that their Business lies in other Courts as well as in that of the Common-Pleas 2. As to the second Point Here is a joynt Action for any thing that appears to the contrary 2 Rol. Abr. 275. pl. 4. and the Plaintiff may proceed against one in the Kings-Bench and therefore the other shall be ousted of his Priviledge if he have any in the Common-Pleas Moor 556. 20 H. 6. 32. North Chief Iustice said That he always took it to be an uncontroverted point That a Serjeant at Law should be sued only in the Court of Common-Pleas by Bill he is bound by Oath to be there and when he brings a Writ of Priviledge 't is always out of that Court and no other Curia advisare vult The Attorny General versus Sir John Read In Scaccario INformation A special Verdict was found Disability by a Statute ought to be removed by the Party to enable himself to execute an Office The Case was thus Viz. Sir John Read 1 Apr. 24 Car. 2. was by Sentence in the Spiritual Court divorced a Mensa Thoro and for Non payment of Alimony was excommunicated Afterwards it was Enacted by the Statute of 25 Car. 2.
cap. 2. That all and every person or persons who shall have any Office Civil or Military shall take the Oaths of Supremacy and Allegiance and receive the Sacrament within the time limited by the said Act or otherwise shall be adjudged ipso facto incapable and disabled by Law or if he execute any Office after his neglect or refusal to qualifie himself within the time therein appointed viz. three Months then he shall be disabled to sue in any Court and shall forfeit the Sum of 500 l. Sir John Read was made High Sheriff of Hartfordshire 12 Novemb 25 Car. 2. and being still under the Sentence of Excommunication he took upon him the Office and executed it for 3 Months viz. to the 12th day of February afterwards and then refused to serve any longer the Iudges came soon after to keep the Assises for that County but there was no Sheriff there to attend them and the reason was because if he had executed the Office without taking the Oaths the time being now expired wherein he ought to have taken the same then he had subjected himself to the forfeiture of 500 l. and he could not receive the Sacrament because he was Excommunicated and therefore supposed that after the 3 Months he was ipso facto discharged by the aforesaid Statute and whether upon all this matter the Defendant be guilty was the Question Ward and Sir William Jones the Attorny General argued that the Defendant was Guilty 1. The Oath and Sacrament are necessary qualifications for all Sheriffs because the Act appoints these things to be done and the Penalty therein extends to those who execute any Office after the three Months without doing the same but not to such who neglect to qualifie themselves And though it may be objected that the Act gives no Penalty for not taking of the Oath it only enjoyns it to be done and subjects the person to the forfeiture of 500 l. for executing an Office after three Months that being not done so that this is not to be punished by Information it being no Offence at the Common Law yet if an Act appoints a thing to be done the transgressing of the Law is an Offence at the Common Law and ought thus to be punished and so it was adjudged in Castle 's Case 2 Cro. 643. 1 Roll. Abr. â—51 455. Suppose the Defendant had given Bond to perform a thing a discharge by the Act of God or by the Obligee had been good but the Obligor should never disable himself and if it be so in private Contracts much more in the Case of the King because our Duty to him is of the highest nature 2. Therefore the Excommunication can be no excuse to the Defendant for though he might have been excused if he had been under a legal disability which he could in no wise prevent yet here he was able and had time enough and it was in his power to have discharged himself from this Excommunication and being bound by his Duty and Allegiance to the King to perform the Office he ought to qualifie himself for the performance and either to remove the disability or shew he had not power to do it 'T is his obstinacy that disables him and 't is absurd to think that this Excommunication which was designed as a punishment should now be an ease to him to excuse him from executing this Office Moor 121. Lacie's Case 3. That the Defendant is punishable for this neglect otherwise the King would lose the effect of his Subjects Service if it should be in their power to discharge themselves at pleasure an Act of Parliament cannot and much less the Defendant himself by his own act take away his Duty and Service which he oweth to the King And therefore though 't is Enacted That a Sheriff shall be only for one year yet it has been adjudged that the King by a Non obstante may dispense with that Statute Antea because otherwise he would be deprived of the Service of his Subjects If a Sheriff when he is first admitted into his Office refuses to take the Oath of his Office he is finable and so he ought here if any alteration be made by the King of that Oath his disobedience afterwards is punishable Cro. Car. 26. though a form of the Oath is prescribed by the Act of Parliament and there is no other way to punish the Defendant in this Case but by Information for after the three Months in case he execute the Office not being qualified the Act gives the Penalty to the Informer and if he should not execute it the inconvenience would be great because 't is and Office which concerneth the Administration of Iustice and necessary for the management and collection of the Kings Revenue The Statute extends to Offices of Trust as well as of Profit and enjoyns the thing to be done the transgression whereof is an Offence as well at the Common Law as against the Statute and so punishable by Information and therefore they prayed Iudgment against the Defendant Sawyer and Levins contra Viz. They agreed if the Subject be qualified he ought to accept the Office Ex parte Def. but the Defendant was not so qualified and therefore to be excused But before they entred upon the debate whether this was an Offence or not they took an Exception to the form of the Information Viz. That it was not good because it did not conclude contra formam Statuti for if the Offence be at the Common Law and a new Penalty is given by the Statute the Proceedings ought to be either at the Common Law by way of Fine or upon the Statute for the Penalty but if the Offence be by the Statute then it must be laid to be contra formam Statuti Now if this was any Offence in the Defendant it was because he did not receive the Sacrament and take the Oath which is an Offence against the Statute and therefore ought to conclude contra formam Statuti which is essential Then as to the Substance 1. The Information is insufficient for there is no Offence at all of which the Common Law doth take notice and though the Consequences of the thing done may be bad yet no Man shall be punished for that because those only aggravate the Offence if any neither is this Information true for it saith he refused absque rationabili causa but here was a reasonable cause And though it may be objected that it was only impotentia voluntatis and that every Subject being disabled is to remove that disability to serve the King this was denied for a Man who is a Prisoner for Debt is not bound or compellable to be Sheriff neither is a Man bound to purchase Lands to qualifie himself to be either a Coroner or Iustice of the Peace By the Statute of 3 Jac. every Recusant is disabled he may conform but he is not bound to it for if he submits to the Pemalty 't is