Sr Peyton Ventris Knt.
Late one of the Justices of the Court of Com̄on Pleas.
[blazon of the Ventress family]

THE REPORTS OF Sir Peyton Ventris Kt. Late One of the JUSTICES of the COMMON-PLEAS.

In Two Parts.

The First PART Containing Select CASES Adjudged in the Kings-Bench, in the Reign of K. CHARLES II.

WITH Three Learned ARGUMENTS, One in the Kings-Bench, by Sir Francis North, when Attorney General; and Two in the Exchequer, by Sir Matthew Hale, when Lord Chief Baron.

With Two TABLES; One of the Cases, the other of the Principal Matters.

The Second PART Containing choice CASES Adjudged in the Common-Pleas, in the Reigns of K. CHARLES II. and K. JAMES II. and in the Three first years of the Reign of His now Majesty K. WILLIAM and the late Q MARY; while he was a JUDGE in the said Court: With the Pleadings to the same.

ALSO Several CASES and PLEADINGS thereupon in the Exchequer-Chamber upon Writs of ERROR from the Kings-Bench.

Together with many remarkable and curious Cases in the Court of Chancery.

Whereto are added Three exact TABLES; One of the Cases, the other of the Principal Matters, and the third of the Pleadings.

With the Allowance and Approbation of the Lord Keeper and all the Judges.

LONDON: Printed by the Assigns of Richard and Edward Atkyns, Esquires; for Charles Harper and the Flower-de-Luce, and Iacob Tonson at the Judges-Head, both over against St. Dunstan's Church in the Fleetstreet, MDCXCVI.

WE all knowing the G …

WE all knowing the Great Learning and Judgment of the Author, do (for the Benefit of the Publick) 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.

THE FIRST PART OF THE REPORTS OF Sir Peyton Ventris Kt. LATE One of the Iustices OF THE COMMON-PLEAS.

CONTAINING Select CASES Adjudged in the COURT of Kings-Bench, in the Reign of King CHARLES II.

WITH THREE LEARNED ARGƲMENTS, One in the Kings-Bench, by Sir FRANCIS NORTH, when Attorney General: And Two in the Exchequer, by Sir MATTHEW HALE, when Lord Chief Baron.

With Two exact TABLES; One of the Cases, the other of the Principal Matters.

With the Allowance and Approbation of the LORD KEEPER and all theJUDGES.

LONDON: Printed by the Assigns of Richard and Edward Atkyns, Esquires; for Charles Harper at the Flower-de-Luce, and Iacob Tonson at the Judges-Head, both over against St. Dunstan's Church in the Fleetstreet, MDCXCVI.

TO THE READER.

THE Name of the Reverend and Learned JUDGE, who was the Compiler of these REPORTS, will be a sufficient Invitation to the Understanding Reader, not only to cast his Eye upon; but seriously to peruse them.

And as my Lord Coke in his Commentary upon Littleton (fol. 249. b.) says, That for the most part the latter Resolutions and Judgments are the surest, and therefore best to Season Students with at the Beginning, both for the settling of their Judgments, and retaining of them in Memory, and easier to be understood than the Ancient: So it is to be hoped that these following REPORTS, Collected with Care, Diligence and Expe­rience, by the Learned Author thereof, will fully answer these Directions given by that before-mentioned Famous Lawyer.

[Page]The Author of these REPORTS was so Eminent in his Profession of the LAWS, that should I presume to give a Character of him, it would come very short of His great Worth; and therefore I shall only commend him to the Courteous Reader, where he will find his own Character given by himself.

Vale.

THE NAMES OF THE CASES.
IN THE FIRST PART.

A
  • ABram v. Cunningham p. 303
  • Adams v Guy 109
  • Amhurst's Case of Grays-Inn 187
  • Anger v. Brewer 348, 350
  • Anonymus's 2, 3, 4, 5, 9, 10, 11, 12, 13, 17, 18, 20, 21, 24, 26, 28, 31, 32, 33, 34, 37, 38, 39, 40 41, 42, 43, 45, 46, 48, 49, 51, 53, 54, 55, 59, 60, 61, 63, 65, 69, 71, 74, 75, 87, 89, 92, 93, 98, 100, 105, 107, 108, 109, 111, 114, 115, 117, 120, 126, 127, 132, 133, 135, 142, 143, 146, 165, 166, 191, 211, 212, 213, 214, 222, 233, 234 236, 239, 247, 248, 249, 252, 253, 256, 257, 258, 259, 261, 262, 264, 265, 266, 267, 268, 272, 274, 276, 292, 293, 295, 296, 298, 306, 308, 309, 310, 315, 323, 325, 327, 328, 329, 330, 331, 332, 333, 335, 336, 337, 338, 343, 344, 345, 346, 348, 349, 350, 352, 353, 355, 356 357, 359, 361, 362, 366, 367, 369
  • Astree v. Ballard 315
  • Atkyns (Sir Robert) v. Holford Clare 399
  • Auberie v. James 70
  • Aubin (St.) v. Cox 180
  • Austin's Case 183
  • Austin's (Katharine) Case 189
B
  • BAins versus Biggersdale 5
  • Baker v. Bulstrode 255
  • Baker v. Bakers 313
  • Baldway and Ouston 71
  • Baltinglasses (Lady) Case 64
  • Barber v. Fox 159
  • Barkly v. Paine 28
  • Barnard v. Mitchel 114, 126
  • Barnes v. Bruddel 4
  • Barnes v. Hughes 8
  • Barrett v. Milward & al' 75
  • Bateman's (Sir Anthony) Case 166
  • Bates's (William) Case 41
  • Batmore & Ʋx' v. Graves 260
  • Bayly v. Murin 244
  • [Page]Beasly's Case 301
  • Bedniff & Ʋx' v. Popli & Ʋx' 220
  • Bell v. Thatcher 275
  • Bellew (Monsieur) Norman sen' & Norman jun' 254
  • Bernard v. Bernard 72
  • Berry v. Bowes 360
  • Best v. Yates 268
  • Billingham and Vavasor 6
  • Biron's (Lord) Case 100
  • Blackamore v. Mercer 221
  • Blackman's Case 304
  • Blake v. — 240
  • Bolton v. Cannon 271
  • Bosvile v. Coates 58
  • Bourne v. Mason & al' 6
  • Bovye's (Sir Ralph) Case 193, 211, 217
  • Bradnox's Case 195
  • Braithwaite's Case 19
  • Brell v. Richards 165
  • Brown's (John) Case 243
  • Brown v. London 152
  • Brown v. Wait 299
  • Bulmer v. Charles Pawlet Lord St. John 160
  • Burfoot v. Peale 262
  • Burgen's (Thomas) Case 13
  • Burrough's Case 305
  • Burwell's Case 48
  • Butcher v. Cowper 183
C
  • CAptain C's Case 250
  • Cabell and Vaughan 34
  • Calthorpe v. — 108
  • Cartwright v. Pinkney 272
  • Castilian v. Platt 190
  • Catterel v. Marshal 99
  • Chester v. Wilson 78
  • Chesters (Lady) Case 207
  • Clarke v. Phillips & al. 42
  • Clarke's Case 327
  • Clayton v. Gillam 363
  • Clerke v. Cheney 13
  • Clipsham v. Morris 9
  • Clue v. Baily 240
  • Cole v. Levingston 224
  • Colepepper's Case 349
  • Collet v. Padwel 93
  • Collingwood v. Pace 413
  • Cooke v. Fountain 347
  • Coriton (Sir John) and Harvey versus Lithby 167
  • Cotton (Sir Robert) v. Daintry 29
  • Cousin's Case 69
  • Cox v. Matthews 237, 239
  • Crawfoot v. Dale 263
  • Crispe and Jackson v. The Mayor and Commonalty of Berwick 58, 90
  • Crosse v. Winter 22
  • Crossing v. Scudamore 137
  • Curtis & al' v. Collingwood 297
  • Curtis v. Inman 364
  • Cuts v. Pickering 197
D
  • DAcon's Case 107
  • Dacres v. Duncomb 235
  • Davenant v. The Bishop of Salisbury 223
  • Davis v. Wright & al' 120
  • Davis v. Price 317
  • Davison v. Hoslip 152
  • Day v. Pitts 10
  • Day v. Coppleston 356
  • Dean and Chapter of Durham v. The Lord Archbishop of York 225
  • Debt 233
  • Denison v. Ralphson 365
  • Dier v. East 42, 146
  • Dighton's Case 77, 82
  • Dionise v. Curtis 211
  • Dorrel v. Jay 149
  • Drue v. Baily 275
  • Duncomb v. Walter 370
  • Dunwel v. Bullocke 304
  • Dutton v. Poole 318, 332
E
  • [Page]EAton v. Barker 133, 134
  • Elpicke v. Acton 114
  • Ely v. Ward 55
  • Emerson v. Emerson 187
  • Ent v. Withers 315, 321
  • Error 108, 113, 256
  • Evans, &c. 211
  • Exeter (Bishop of) v. Starr 166
F
  • FAwkener v. Annis 264
  • Fisher v. Batten 155
  • Fitzgerald v. Marshall 206
  • Fitzharris's Case 354
  • Foot v. Berkley 83, 88
  • Fortescue v. Holt 213
  • Foxwith v. Tremaine 102
  • Freeman v. Barnes 55, 80
  • Freeman v. Boddington 185
  • Fry's (Lady Anne) Case 199
G
  • GAmage's Case 368
  • Gavell and his Wife v. Burket 53
  • Gifford v. Perkins 77
  • Gilman and Wright 11
  • Gilmore v. — 330
  • Girling v. Alders 73
  • Girlington v. Pitfield 47
  • Glyn v. Smith 46
  • Goff v. Loyd 191
  • Goffe's Case 216
  • Green v. Cubit 70
  • Gregory v. Eads 27, 39
  • Griesley's (Sir Thomas) Case 4
  • Gybbons v. North 75
H.
  • HAll v. Phillips 62
  • Hall's (Jacob) Case 167
  • Hanslap v. Cater 243
  • Hanway v. Merrey 28
  • Harrington's Case 324, 327
  • Harvey v. James 92
  • Harwood's Case 178
  • Hawley's (Lord) Case 143
  • Hayman v. Trewant 101
  • Heath v. Pryn 14
  • Hedgeborrow v. Rosenden 253
  • Heeley v. Ward 2
  • Henley (Sir Andrew) v. Dr. Burstal 23, 25
  • Herbert v. Merrit 7
  • Herne v. Brown 339
  • Herring v. Brown 368, 371
  • Heskett v. Lee 73
  • Hicke's (Sir William) Case 154
  • Hill v. Langley 50
  • Hinchman v. Iles 247
  • Hocking v. Matthews 86
  • Hodgkins v. Robson and Thornborow 276
  • Hodson v. Cooke 369
  • Holland v. Ellis 278
  • Horne v. Ivie 47
  • Hornsey (Administrator of Jane Lane) and Dimmocke 119
  • Horsam v. Turget 111
  • Hoskins v. Robbins 123, 163
  • How (Sir John) v. Woolley 1
  • How's Case 209
  • How v. Whitfield 338, 339
  • Howlet v. Carpenter 311
I.
  • J—'s Case 323
  • Jackson v. Gabree 51
  • James v. Pierce 269
  • James v. Richardson 334
  • [Page]Jay v. Bond 222
  • Jay's Case 302
  • Jemey v. Norris 105
  • Jenning v. Hunking 263
  • Ile's Case 143, 153
  • John (St.) v. Moody 274
  • Jones v. Powell 98
  • Jones (Sir Samuel) v. The Countess of Manchester 197
  • Jordan v. Forett 76
  • Ironmongers (Company of) v. Nailer 311
  • Isaac v. Ledgingham 167
  • Ju [...]ado v. Gregory 32
K
  • KAtharines (Case of St.) Hospital 149
  • Kent v. Harpool 306
  • Kent v. Derby 311
  • Kerle (Sir John) v. Osgood 50
  • King v. Melling 214, 225
  • The KING v. Alway and Dixon 170
  • — v. Armstrong, Harrison & al' 304
  • — v. Atkins 35, 78
  • — v. Bates 85
  • — v. Benson 33
  • — v. Burford 16
  • — v. Clapham 110
  • — v. Sir Thomas Fanshaw 331
  • — v. Green & al' 171
  • — v. Humphreys & al' 302
  • — v. Jane D— 69
  • — v. Ledgingham 97, 104
  • — v. Marlow 316
  • — v. Mead 328
  • — v. Monk & al' 43
  • — v. Nelson 37
  • — v. Plume 326, 346
  • — v. Ring 23
  • — v. Saunders 39
  • — v. Serjeant 23, 25
  • — v. Serjeant and Annis 181
  • The KING v. Webb 17
  • — v. Wright 169
L
  • LAmpereve (Adrian) and other Frenchmens Case 63
  • Large v. Cheshire 147
  • Lee v. Edwards 44
  • Lee's (Dr.) Case 105
  • Leech v. Widsley 54
  • Leicester's (Earl of) Case 278
  • Lewyn v. Forth 185
  • Lincoln (the Bishop of) v. Smith 3
  • Lion v. Carew 91
  • Littleton's (Sir Thomas) Case 270
  • Lomax v. Armorer 267
  • LONDON (Case of the City of) and Coates 115
  • (Mayor and Comminalty) v. Dupester 261
  • (the City of) v. Goree 298
  • LONDON (Case of the City of) concerning the Duty of Water and Bailage 351
  • Love v. Wyndham 79
  • Loyd v. Brooking 188
  • Lucy v. Levington 175
M.
  • MAddy's Case 158
  • Maleverer and Redshaw 39
  • Martyn v. Delboe 89
  • Matthews v. Crosse 119
  • Maynard's Case 182
  • Mekins v. Minshaw 212
  • Meredith's Case 217
  • Methyn and the Hundred of Thistle­worth 118, 235
  • Mewes (Sir William) v. Mewes 66
  • Miller v. Ward 92
  • Molyn v. Cooke & al' 298
  • Monk v. Morris and Clayton 193
  • Monk's Case 221
  • Monnington v. William 108
  • [Page]More v. Lewis 27
  • Moreton's (Mr. Justice Case) 30
  • Morris's (Theodore) Case 146
  • Morse (Simon) v. W. Sluce 190, 238
  • Mosdel, the Marshal of the Court, v. Middleton 237
  • Matteram v. Jolly 271
N
  • NOell v. Nelson 94
  • Nokes and Stokes v. — 35
  • Norris and Cuffuil 14
  • Norton v. Harvey 259
  • Nurstie v. Hall 10
O
  • OEle v. Dittlesfield 153
  • Osborn v. Beversham 322
  • Owen v. Lewyn 223
P
  • PAge v. Denton 354
  • Paget v. Dr. Vossius 325
  • Parker v. Welby 85
  • Parker's Case 331
  • Parrie's Case 46
  • Parris's Case 49
  • Parsons v. Perus 186
  • Pellow v. Kingsford 126
  • Pepis's Case 342
  • Perill v. Shaw 49
  • Perrie's Case 17, 35
  • Perrot v. Bridges 221
  • Peters v. Opie 177, 214
  • Peterborough (Earl of) v. Sir John Mordant 59
  • Pettus's (Sir Thomas) Case 110
  • Peyton's (Sir Robert) Case 346
  • Phillips v. Kingston 117
  • Pibus v. Mitford 372
  • Pierce v. Win 321
  • Pierson v. Ridge 105
  • Pigot v. Bridge 292
  • Player (Sir Thomas) Chamberlain of London and Jones 21
  • Playters v. Sheering 64
  • Plomer (Sir Walter) v. Sir Jeremy Whitchcot 314
  • Polexfen and Ashford v. Crispin 122
  • Polexphen v. Polexphen 133
  • Polus v. Henstock 97
  • Pomfret v. Ricroft 26, 44
  • Potter and Sir Henry North 383
  • Prettyman's (Lady) Case 208
  • Prior v. Shears 100
  • Prior v. — 207
  • Proctor v. Newton 184
  • Prydyerd v. Thomas 96
  • Puckle v Moor 191
  • Putt v. Vincent 76
  • Putt v. Nosworthy 135
R
  • RAdly and Delbow v. Eglesfield and Whital 173
  • Read v. Wilmot 220
  • Reive v. Cropley 347
  • Reynell v. Heale 122
  • Richardson v. Disborow 291
  • Richmond (Duke of) v. Wise 124
  • Robinson v. Pulford 43
  • Robinson v. Woolly 306, 319
  • Robson's Case 107
  • Rumsey v. Rawson 18, 25
  • Rushden v. Collins 44
S
  • SAcheverel v. Frogate 148, 161
  • Sands v. Rudd 186
  • Sard v. Ford 98
  • Saunders v. Williams 319
  • Seaman v. Dee 198
  • Shaftsbury (Earl of) v. Cradock 363
  • — v. Graham & al' 364
  • Sherman's Case 210
  • Silly v. Silly 260, 262
  • Skier v. Atkinson 22
  • [Page]Skinner and Gunter, &c. 12, 18
  • Skinner v. Webb 168
  • Skirr and Sikes 34
  • Smith's Case 66
  • Smith (Sir William) v. Wheeler 128
  • Smith v. Butterfield 184
  • Smith v. Tracy 307, 316, 323
  • Southampton (Case of the Heirs of the Earls of) 142
  • Sparkes v. Martyn 1
  • Stanlack's Case 181
  • Steed v. Berrier 341
  • Sterling (Sir Samuel) v. Turner 206
  • Stone's Case 16, 29
  • Suffil's Case 2
  • Sympson and Quinley 88
T
  • TAilour v. Fitzgerald 137
  • Tarlour and Rous v. Parner 88
  • Taylor's Case 293
  • Thodie's Case 234
  • Thomas v. Butler 217
  • Thomlinson v. Hunter 53
  • Thrower's Case 208
  • Thynne (Sir Henry Frederick) v. Sir James Thynne 51
  • Toll v. Dawson 184
  • Tothill v. Ingram 314
  • Twisleton v. Hobbs 3
V
  • VAughan and Loyd 7
  • Vere v. Smith 121
  • Vertue v. Bird 310
W
  • WAldron v. Ruscarit 170
  • Walker v. Wakeman 294
  • Walter v. Channer 21
  • Ward v. Rich 103
  • Ward v. Forth 210
  • Watkins v. Edwards 174
  • Watson v. Snead 238
  • Webb (Doctor) v. Batchelour & al' 273
  • Wells v. Wells 40
  • Welsh v. Bell 36
  • Weyman v. Smith 88
  • Whaley v. Tancred 241
  • Wharton and Brooke 21
  • Wilbraham and Snow 52
  • Wildman v. Norton 249
  • Williams v. Gwyn 60
  • Wilson v. Armorer 77, 87, 106
  • Wilston and Pilkney 242
  • Wingate and Stanton, the Bail of William Stanton 38
  • Wise's Case 69
  • Wood v. Coat 195
  • Woodward v. Aston 296
  • Wortley (the Lady) v. Holt 31
  • Wright v. Johnson 64
Z
ZOuch v. Clay
185

ADVERTISEMENT.

Note, That the Author of these Reports, has referr'd to Croke's Elizabeth as the first Part, and Croke's Charles as the third Part of those Reports, except in the first thirty Sheets of the First Volume, in which thirty Sheets he referr'd to Croke's Charles of the first Edition as the first Part, and Croke's Elizabeth as the third Part of those Reports.

Sparks, &c. versus Martyn.

JONES moved for a Prohibition to the Court of the Admi­ralty, for that they Libelled against one for Rescuing of a Ship, and taking away the Sails of it from one that was executing the Process of the Court against the said Ship: and for that in the presence of the Iudge and face of the Court he Assaulted and Beat one, and spake many opprobious Words against him. Now seeing that these Matters were deter­minable at Law, the Ship being infra corpus Comitatus; and they could not adjudge Damages to the party, or Fine or Imprison; He prayed a Prohibition.

But the Court denied it, (absentibus Windham & Moreton); 1 Cro. 216. For they may punish one that resists the Process of their Court and may Fine and Imprison for a Contempt to their Court, acte [...] in the face of it, tho' they are no Court of Record; but if they should proceed to give the party Damages, they would grant a Prohi­bition quoad that: And of that Opinion was Wyndham, the Case being afterwards put to him by the Chief Justice. But the parties afterwards put into their Suggestion. That the original Cause upon which the Process was grounded, was a Matter whereof the Court of Admiralty had no cognisance: Wherefore a Prohibition was granted; For then the Rescous could be no Contempt.

Sir John How versus Woolley, an Attorney of the Court.

IT was Moved, That Woolley should put in special Bail, being an Attorney at large, and having dicontinued his Practice. But the Court said, Attorneys at Large have the same priviledge with the Clerks of the Court, and are to appear de die in diem. And they were not satisfied that he had discontinued his Practice.

Suffil's Case.

IT was Moved to quash the Return of a Rescous against Suffil and divers others, who rescued a person taken upon Mesne Pro­cess; because the Rescuers being particularly named 'tis said rescus­serunt, and not added quilibet corum rescussit. And for that Case was cited in the 2 Cro. where the Sheriff returns an Exigent against divers quod non comperuerunt, upon the Quinto exacti, and doth not add nec aliquis corum comperuit; and for that cause it was Reversed in a Writ of Error, notwithstanding, Twisden being only in Court, held it to be well enough, it being in the Affirmative.

Anonymus.

A Prohibition was prayed to the Ecclesiastical Court, for that a Parson Libelled against one there for talking of him Knave, and 'twas granted, it not appearing to relate to any thing concern­ing his Function: And a Case was cited to be Adjudged 24 of the Queen, the Suit being in the Ecclesiastical Court for these words, (viz.) Sir Priest, you are a Knave; and a Prohibition was granted.

Note, If a man be taken in Execution, he cannot be bailed, tho' he brings a Writ of Error.

Anonymous.

IN Debt upon a Lease for years, the Defendant may plead Entry into part, upon which follows Suspension, and it doth not amount to the General Issue.

Heely versus Ward.

ERror to Reverse a Iudgment given in the Court at Hull, where the Plaintiff in an Assumpsit did declare. That at such a place, infra Jurisdictionem Curiae, the Defendant in conside­ration that the Plaintiff had assumed to pay him so much a yard, promised to deliver him so many yards of Kersey; and it was assigned for Error, That the delivery is not laid to be at a place infra Jurisdictionem Curiae; and indeed there is no place at all. And of that Opinion was Twisden, (he being only in Court) and cited a Case, where in an Assumpsit in the Marshalsey, upon a Promise to make a Lease of a House in Middle Row, and after Iudgment it was held Erroneous, because Middle Row was not laid to be infra Jurisdictionem Curiae.

The Bishop of Lincoln versus Smith.

THe Bishop of Lincoln sued in the Court holden before his Chancellor for a Pension, to which he intituled himself by Prescription, and a Prohibition was prayed for Smith the Defendant there; for that being by Prescription that Court had no cognisance of it: And for that my Lord Coke's Opinion was cited, 2 Inst. 491. especially he could not sue for it in his own Court.

But it was resolved by Keeling and Twisden (the other Iustices being absent) that Pensions, tho' they were by Prescription, might be sued for in that Court; for having cognisance of the Principal, that shall draw in the Accessory. As if one Libel for a Modus decimandi, if they allow it, they may try it; and Coke's Opinion they said was not warranted by the Books, and Fitzh. N.B. 524. is against it,2 Cro. 483. and the Court being held before the Chancellor, and not the Bishop himself, he might sue there: Vide Hob. 87. Conusans of Pleas granted to be holden before the Steward of the Grantee, licet the Grantee fuerit pars.

Anonymus.

AN Attachment was prayed against one, who being arrested upon a Latitat, gave a Warrant of Attorney to Confess a Judgment, and presently after snatched it out of his hand to whom it was delivered, and tore off the Seal: And the Court seemed to incline, in regard it was to Confess a Judgment in this Court that it was a Contempt, upon which an Attachment might be granted.

Anonymus.

A Prohibition was prayed, to stay a Suit in the Court Christian for Tythes, upon the suggestion of a Modus, which was al­ledged in this manner: That the Proprietors and Occupiers of such a Mannor, or any parcel thereof, should pay a Groat to the Parson for Herbage Tythes.

The Court held his this could not be, for if a man had but two or three Foot of Ground in the Mannor he should pay a Groat; but it ought to have been laid: That the Proprietors and Occupiers of such a Mannor, for themselves and their Farmers, had paid Four pence.

Twisleton versus Hobbs.

ACtion for these Words, [You are a Forger of Bonds, a Pub­lisher of Forgery, and Sue upon forged Bonds.]

The Iury found the Defendant Not Guilty, as to the first Words, and resolved the last Words were not Actionable, if not being laid that he knew of the Forgery.

Sir Thomas Griesley's Case.

INformation against him for stopping the High-way, the word was Obstupabat. It was proved in Evidence, that he plowed it up; and Resolved it did well maintain the Information.

Anonymus.

IN Debt, If the Defendant wage his Law, the Oath of the Eleven which are Sworn de credulitate, may be dispensed with by the Plaintiffs assent. Vid. Mag. Charta, c. 28.

Note, It was Adjudged in the King's Bench, 19 Car. II. That if a Prisoner escape by the permission of the Sheriff, yet he may be taken by the party at whose Suit he was condemned; for it may be the Sheriff is Insufficient; and it is no reason that his own Act should damnifie the Plaintiff. Vide Hob. 202.

Barnes versus Bruddel.

ACtion for these Words, alledged to be spoken of the Plain­tiff, (viz.) She was with Child by J. S. whereof she Mis­carried; and concludes, That by reason thereof she was so brought into her Fathers displeasure that he turned her out of Doors, and that she was brought within the Penalty of the Statute of 18 Eliz. And in Maintenance of this Action a Case was cited out of Roll's 1st Part 35. inter Meadows & Boyneham, an Action was brought for calling of one Whore, Per quod consortium amisit Vicin' suorum; and held it would lye. And in Anne Davie's Case, 4 Co. 17. it is held, That since the Statute of the 18 Eliz. cap. 3. to say, One had a Bastard, would bear an Action.

But notwithstanding the Opinion of the Court was, That such an Action would not lye unless a special Damage had been alledg­ed, as to say, She had lost her Marriage, as in Anne Davies's Case; and the Reason upon the Statute alledged in the Case, was said by Twisden to be of my Lord Coke's putting in; for Iustice Jones affirmed to him, there was nothing said thereof in the Case.

Anonymus.

IF a Tradesman contract Debts and after gives over Trading, he may be afterwards a Bankrupt within the Statute in re­spect of the Debts contracted before: And so it was said to be Ruled in Sir Job Harvies Case.

Anonymus.

A Warren may pay Tythes by Custom: So of Doves in a Dove-house, or Fish in a River.

Note, It was said by Twisden, That if a Libel be in the Eccle­siastical Court for a thing whereof they have cognisance, altho' the party intitles himself to it by Custom, no Prohibition lies.

Anonymus.

A Prohibition was prayed, for that they Cited him to answer Articles in the Ecclesiastical Court, and did not deliver a Copy of the Articles; and it was granted quousque they should deliver the Copy: But the Prohibition which was taken out was absolute, which the Court being informed of, they did not think fit to grant a Consultation, but to discharge that Prohibition by a Supersedeas. Whereupon they proceeded and Excommunicated the party for default of Answering: Who again moved the Court for a Prohi­bition, and one was granted with a Mandamus in it, to absolve him, if it were for not Answering before they gave him a Copy of the Articles.

Bains & Biggersdale.

ERror to Reverse a Judgment in an Action of Debt upon a Bond, in Rippon Court; because it was entred upon the Record, Assid' damna ultra misas & custagia ad 10 l and doth not say, Occasione detentionis debiti, or Occasione praedicta; and the Iudgment was, Quod recuperet damna praedicta, and doth not say, Per Juratores assessa: Yet notwithstanding the Judgment was affirmed.

Billingham & Vavasor.

ERror to Reverse a Judgment in Debt, in the Court of York: Assigned,

First, In the Variance between the Count and Plaint; for the Plaint was Entred, Ad hanc Curiam venit & queritur de Pla­cito deb' super demand' 14 l and the Count was for 12 l but it was Answered, That the certainty of the Sum needed not to be expressed in the Plaint, and so Surplusage. But otherwise it is of a Variance between the Original and the Count; for the Writ must comprehend the certainty of the Debt; and 2 Cro. 311. was cited where Debt was brought in the Common Bench for 40 s and after the Return of the Pluries Capias the Entry was, Quod Querens obtulit se in plito deb' 40 l and assigned for Error, and dis­allowed. But to that it was said, That that was but a Misprision in the Entry of a Continuance which had a former Record to warrant it: And here, tho' the certainty of the Sum need not to have been expressed;Vid. 3 Cro. 619. yet when it is, the Plaint must not vary from it. Et adjornatur.

Bourne versus Mason & al'.

IN an Assumpsit, the Plaintiff declares, That whereas one Parrie was indebted to the Plaintiff and Defendants in two seve­ral Sums of Mony, and that a Stranger was indebted in ano­ther Sum to Parrie; that there being a Communication between them, the Defendants in Consideration that Parrie would permit them to sue in his Name the Stranger for the Sum due to him, they promised they would pay the Sum which Parrie owed to the Plaintiff; and alledged, that Parrie permitted them to Sue, and that they Recovered. After Non assumpsit pleaded, and a Ver­dict for the Plaintiff, it was moved in Arrest of Judgment, That the Plaintiff could not bring this Action, for he was a Stranger to the Consideration.

But in maintenance thereof a Judgment was cited in 1658. between Sprat and Agar, Vid. 3 Cro. 619. in the Kings-Bench, where one promised to the Father, in Consideration that he would give his Daughter in Marriage with his Son, he would settle so much Land. After the Marriage the Son brought the Action; and it was Adjudged maintainable. And another Case was cited of a Promise to a Physician, That if he did such a Cure, he would give such a Sum of Mony to himself, and another to his Daughter; and it was Resolved, the Daughter might bring an Assumpsit. Which Cases the Court Agreed: For in the one Case the parties that brought the Assumpsit did the Meritorious act, tho' the Promise [Page 7] was made to another; and in the other Case, the nearness of the relation gives the Daughter the benefit of the consideration per­formed by her Father; but here the Plaintiff did nothing of trouble to himself, or benefit to the Defendant, but is a mere Stran­ger to the Consideration; wherefore it was adjudged quod nihil capiat per billam.

Herbert versus Merit.

A Prohibition was prayed to the Ecclesiastical Court, for that the Defendant Libelled against the Plaintiff there, for calling of her Impudent Whore, which was said to be only a word of Pas­sion; and the later Opinions have been, that unless some Act of Fornication were expressed that Prohibitions should be granted.

But the Court denied it in this case, it being an offence of a Spiritual Cognizance, and Eaton and Ailoffes Case, 1 Cro. 78. and Pewes Case 329, were cited.

The Sheriff may Sell Goods, he takes in Execution by a Fieri facias, at any Rates, if the Defendant denies to pay the Money.

Nota, No Action of Debt lies against the Sheriff when the Party escapes, who is taken upon a Mesne Process, but an Action upon the Case only,

Vaughan & Loyd.

IN an Audita Querela, the Party appeared upon the Sciri Facias, and demurred, for that the Sciri Facias bore Date the 23 day of October, and the Audita Querela the 3 of November after. To which it was said, that this fault in the Mesne Process is aided by Appearance; but if an Original should bear Date upon a Sunday or the like, the Appearance of the Party would not help it. But on the other side it was said, That the Party had no day in Court by the Audita Querela, and this was a default in the first Process against him, and compared it to a Sciri Facias upon a Judgment, in which such a fault will not be cured by Appearance: To which the Court agreed. For there the Sciri Facias is the Foundation, and quasi an Original, and the Judgment is given upon it;2 Cro. 424. but here the Sciri Facias is only to bring in the Party to answer, and in the nature of a Mesne Process, and the Judgment is given upon the Audita Querela; wherefore they disallowed the Demurrer.

Barnes versus Hughes.

DEbt tam pro Domino Rege quam pro seipso, upon the Stat. of 5 Eliz. cap. 4. for exercising of the Trade of a Grocer in Salis­bury, not being bound Apprentice thereunto. The Defendant pleads Nil debet, and being tried by Nisi prius, and a Verdict for the Plain­tiff, it was moved in Arrest of Judgment, that this Action could not be brought in this Court, for by the Stat. 21 Jac. cap. 4. It is Enacted that all offences against any penal Statute, for which an Informer may lawfully ground any popular Action, Bill, Plaint, Suit or Information before Justices of Assize, Nisi prius or Gaol-delivery, Justices of Oyer and Terminer, or of the Peace in their General Quarter-Sessions, shall be Commenced, Sued, &c. before the said Justices, they having power to hear and determine the same and not elsewhere; which Negative words, as it was said, take away the Iurisdiction of this Court: And whereas 31 Eliz. restrained not the Kings Attorney, because it only made mention of Common In­formers; the Kings Attorney is expressely named in this Sta­tute, and the Cases in, 2 Cro. 85. between Beane and Druge, and Moyl and Taylours Case, 2 Cro. 178. were quoted. And the Sta­tute would be to little purpose, if it did not extend to Actions of Debt, as well as Informations and Indictments. But it was said on the other side, That it could not extend to Actions of Debt, for they could not be brought before Iustices of Assize, or the other Iustices named in the Act, and it shall only extend to such Suits as an Informer might lawfully Commence before them. And it hath been resolved, that this Act did give no new Iurisdiction, as 1 Cro. 112, Farrington and Keymer's Case, in an In­formation upon the Statute of 23 H. 8. cap. 4. for selling of Beer at an unlawful price, which gives the forfeiture to be Recovered in Courts, where no Protection or Wager of Law shall be allowed in any Suit grounded upon it; extends only to the Courts at West­minster, as 6 Co. in Gregory's Case it was resolved. That no Infor­mation for an offence against this Statute could be commenced be­fore the Iustices of Assize or Peace at the Sessions, notwithstanding the Act in 21 Jac. which ordains, That Suits for offences against Penal Laws shall be before them and the rest there mentioned; for the Act only extends to those offences, for the which an Informer might lawfully ground any popular Action before them, and it was never held that that Act gave any new Iurisdiction. Now if this Action cannot be brought in this Court, the Statute must Repeal a great part of the Remedies given by 5 Eliz. against this offence, and only leave it to be punished by Indictments and Informations, which certainly was never the intent of the Statute, and would be very mischievous; for if the Offender goes out of the Country [Page 9] after the offence committed, he cannot be punished; for the Iu­stices named in the Statute cannot award Process out of the County, and therefore for that reason there should be remedy in a Court of General Jurisdiction, and since 21 Jac. there have béen many Presidents of like Actions; all which would be Reversed, if that Act should take away Actions of Debt in this Court. And for these Reasons the Case being moved divers times, the Court gave Iudgment for the Plaintiff. Styl. 340.

Anonymus.

IN Debt upon an Obligation the Defendant pleads, That he deli­vered it as an Escrow, & hoc paratus est verificare. This Plea is vicious, for he ought to shew to whom he delivered it; and also he ought to conclude his Plea, & issint nient son fait.

Anonymus.

A Lease for Years is made to A. and then another Lease is made for Twenty years, to commence after the Expiration of the former Lease, if B. and C. shall so long live, with a reser­vation of several things, and reddend' 3 l nom' Hariotte after the death of B. or C. B. dies during the continuance of the first Lease. The 3 l must be paid; for it is not in the nature of a Rent, but a Sum in gross.

Clipsham and Morris.

THe Plaintiff in an Assumpsit declared, That J. S. being indebted unto him in 50 l gave him a Note, directed to the Defendant, requiring him to pay the Plaintiff the said Sum of 50 l then he saith, That the Defendant upon view of the Note, in Consideration that the Plaintiff would accept of his Promise for the Mony, and stay a Fortnight for the same, he did assume to pay him.

To which the Defendant demurs for the Insufficiency of the Consideration; it being nothing of trouble or prejudice to the Plaintiff, or benefit to the Defendant, for he might Sue his Debtor in the mean time; neither is it alledged, that the Defendant was indebted to J. S. But if it had been in Consi­deration, That the Plaintiff would accept of the Defendant for his Debtor, that might have béen good; for that is an implied Discharge of the other, whom if he had sued, the Defendant might have had an Action, Roll's 1st Part 29. And for this Reason the Opinion of the Court was against the Plaintiff. And this Point was said to be Adjudged between Newcomen and Lee in this Court, Paschae 1650. Rot. 62. Styl. 249.

Anonymus.

A Man was Indicted for saying, The Justices of the Peace had nothing to do with the Excise: And it was quashed by the Opnion of the Court; for such an Information could not make a man Criminal.

Nurstie versus Hall.

THe Grantee of a Reversion brings a Writ of Covenant against the Lessee for years, for non-payment of Rent. The Question was, Whether it ought to be laid where the Lease is alledged to be made; or, where the Land lies? It was said, That the Statute of 32 H. 8. cap. 34. which gives the Action of Covenant to the Assignee of the Reversion, saith, That they shall have such Actions in like manner, as the Lessors should have had. Now if it had been brought by the Lessor it had béen tran­sitory, and so in the Case of an Assignment by Commissioners of Bankrupt, the Assignee of the Commissioners of Bankrupt shall bring Debt as the first Creditor should have done.

But it was said on the other Side, That the Statute intended not to assign it as a bare Chose en Action, but to knit it to the Reversion; and where it saith, The Assignee shall have Remedy in like manner; that is, the same Remedy in substance: And in the case of the Bankrupt's Debt the Contract is only assigned. And in the 42 Ed. 3. cap. 3. it is said, That an Action of Covenant lay for the Assignee at the Common Law. But because the Court was not full, it was thought fit this Case should be Adjourned till the next Term.

Note, It was said in this Case, the Word-Reddendum makes a Covenant.

Day and Pitts.

A Prohibition was moved for to stay a Suit in the Spiritual Court, upon a Suggestion, that it was for calling one Old Thief, and Old Whore; and if there were any such Words spoken, they were spoken at the same time: Which Suggestion was not good; for the Words ought to have been fully confest. And it was said by the Court, That this Matter ought to have been pleaded there, and if they had not admitted the Plea, then to move for a Pro­hibition, and not before.

Gilman and Wright.

BUrgh moved against Wright (Steward of Havering Court in Essex) for refusing to admit Gilman an Attorney in this Court, to Appear for a man in an Action sued against him there; alledging, That the Attorneys of the Courts of Westminster might Practise in any Inferiour Court; neither had they a Prescription or Charter to have a certain Number of Attorneys of their own, and to ex­clude others.

But because it was the general Vsage of those Inferiour Courts to admit none but their own Attorneys, tho' the Court seemed to incline, That they ought not by Law to refuse Others; and it was said to be so Adjudged in the 15th of Car. 1. in one Darcie's Case; yet they would be Advised until the next Term.

Note, One who is Subpoena'd for a Witness, may have a Writ of Priviledge to protect him from Arrests in going and returning.

Anonymus.

A Prohibition was granted to the Court of the Marches of Wales, for that Lands being discended to an Infant, which were subject to a Trust, they had not only enjoyned the possession of those Lands, but of other Lands discended to him. And it was said by the Court, That they could not Sequester Lands at all, for the per­formance of a Decree of their Court to pay Money. For they can only agere in personam, & non in rem.

Anonymus.

THe Sheriff Returned Non est inventus to a Writ brought against his own Bayliff, and delivered to him. But the Court Amerced him Forty shillings, and he was ordered to amend his Return.

Anonymus.

TRover and Conversion was brought against Baron and Feme, for that they ad usum proprium converterunt & disposuerunt; and held not to be good, because the Wife cannot Convert with her Husband.

Skinner and Gunter, &c.

A Bill in the nature of Conspiracy was brought against Three, for that they,2 Cro. 667. Hob. 205, 266. Conspiratione inter eos habita, caused the Plain­tiff to be Arrested in London, on purpose to vex him and have him Imprisoned, knowing that he was not able to find Bail, whereas they had no cause of Action. The Defendants pleaded Not guilty, and the Issue was found only against one of them.

It was moved in Arrest of Judgment, That the Declaration was Insufficient, because it was not declared that the first Action was determined; as no Conspiracy lies upon an Indictment before Acquittal.

But the Court inclined to disallow this; for here the ground of the Action, is the caussess troubling of him to put in Bail: But when a man is Indicted, he lies under the scandal of the Crime until he is acquitted.

Another Exception was, That this Bill being in the nature of a Writ of Conspiracy, there being One only found Guilty, the Action fails. But it was said, True, it is so in case of Conspiracy to Indict One of Felony; but here 'tis rather in nature of an Action upon the Case, and the Conspiracy alledged by way of aggravation. Fitz. N.B. 116. Et Adjornatur.

Anonymus.

AN Indictment was removed hither the last Term out of Middlesex, against Edward S. of Perjury, and he was named Edward all along in the Indictment unto the Conclusion, and then it was, & sic praedictus Johannes commisit perjurium. The Court was moved that this might be amended, and it was said, Indi­dictments removed out of London have béen amended by the O­riginal, for they do not certifie that, but only a Transcript; and a Jury have been resummoned to amend an Indictment found in this Court; and in this case, if by Examination of the Clerk of the Peace it appeared, the Indictment certified varied from the Original, it might be amended; sed Curia advisare vult.

Nota, If a Venire Facias be returned and not filed, a new one may be taken out.

Thomas Burgen's Case.

AN Indictment was brought against Thomas Burgen, for sel­ling Ale in Black Pots not marked, and doth not conclude contra formam Statuti, and held to be good enough, for the Com­mon-Law appoints just Measures; and tho' the Statute adds this circumstance, yet the Crime being at the Common-Law, the con­clusion is as it ought to be.

Where a Statute makes an offence more Penal, (as that which deprives one that Steals the value of Five shillings, out of a dwelling house in the day time, of his Clergy,) yet the con­clusion of an Indictment in that case is not contra formam Statuti.

Nota, Where one is sued by a name with an Alias, the Ad­dition must ever be expressed after the first name.

Clerke and Cheney.

IN Trespass for breaking of his Close, the Defendant justifies by reason of a way from his House thorough the place where, usque a [...]tam viam regiam in parochia de D. vocat. London Road, and Issue was joyned upon the way, and found for the Plaintiff;Vid. Hob. 189. it was moved in Arrest of Judgment, that there was no Issue joyned, for the incertainty of the terminus ad quem, whether this way should lead, and one that justifies for a way, if he alledges the place from whence, and to which, and that it leads over the place where, 'tis sufficient, tho' he mistake the other mean passa­ges [Page 14] of it, and tho' this be the Defendants own Plea, yet he may take exceptions to it, not being certain enough to make an Issue.

Sed non allocatur, for in regard it is found 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.

[Page 15]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 'tis 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 [Page 16] 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 a Jury.

But the Court inclined to grant the Writ; for it did not appear that it was parcel of his Tenure, but rather imposed upon him by the Custom of the Mannor; and if Attorneys shall be discharged of the Service of the Common-wealth à fortiori of any private Service. Vid. postea.

The King versus Webb.

IN an Action brought against him for imbesiling of the Kings Goods, which was laid in the Declaration to be in London; it was moved for the King, that the County might be changed: And the Court held the King might choose his County, and might wave that which he had seemed to have elected before, as he may wave his Demurrer and joyn Issue, & contra.

Perries Case.

IN an Information of Forgery against him, being an Attorney of the Common Pleas, it was alledged, That he had framed a certain Writing in the Form of a Release at Sherborn, and that he published and gave it in Evidence at Dorchester, and the Venue came out of Dorchester; whereas it was said, it ought to have come out of both places. To which it was answered, That the publishing, and not the framing, was the Crime. But notwithstanding it was held to be a Mis-trial, and being in an Information it was not aided by any Statute. Postea.

Anonymus.

IN Trover and Conversion, amongst other things the Plaintiff declared de sex bovibus, instead of bobus. Vpon Not guilty pleaded, and found for the Plaintiff, and entire Damages as­sessed,

It was moved in Arrest of Judgment, That the Jury ought to have given no Damages for bovibus, being a word insensible, and entire Damages being given, it was naught for all. To which it was answered; That if the word be insensible, notwithstanding the Anglice, the Jury shall not be intended to have regarded it in the giving of Damages; and if it hath a signification, then it is well enough. And it was said, bovibus was an old Latin word, and is found in Plautus, and 'tis bobus only by contraction. It was also said, That the Plaintiff brought this Action as Executor, and the Trover was laid in the Testators time, which was not sufficient, tho' the Conversion was alledged in his own.

But the Court held neither of these Exceptions sufficient to Arrest Judgment.

Rumsey versus Rawson.

IN Replevin, The Defendant Avowed for Damage Fea­sant.

The Plaintiff replies, That the Parson of such a Parish and all his Predecessors have had time out of mind Common in the place where, &c. belonging to his Glebe, and that the Beasts of the Plaintiff were Levant and Couchant upon the Glebe, and he put them into the Common by the Licence of the Parson.

The Defendant Traverses that they were Levant and Couchant, and found for the Plaintiff. And it was moved in Arrest of Judg­ment,

That the Plaintiff had not alledged matter sufficient to justifie his Beasts going in the Common; for no other Beasts ought to be put in the Common, but those of the Tenant of the Land, to which it is appendant, or those which he takes to Com­pester his Land, Fitz. N. Br. 180. b. and that tho' the Common be claimed for a certain number.

And the Opinion of the Court was, That the Defendant might have demurred in this case. But after a Verdict the Court shall intend they were Beasts which the Parson procured to Com­pester his Land, and the right of the case is tryed, so aided by the Statute of Oxford. But they gave further time to shew cause. Postea.

Anonymus.

AN Action was brought for these words, [Thou hast received Stoln Goods, and knew they were Stoln. Alice S. Stole them, and thou wert partner with her.] For the first words the Court held them not Actionable; for they might admit for a ju­stifiable construction, as if the Goods were waived. But the last were holden sufficient; for Partner with her must intend Partner in the Felony.

Skinner versus Gunter & al.

THe case was moved again by Pomberton, and alledged in maintenance of the Action, that it was but in the nature of an Action upon the Case; for at the Common Law no Writ of conspiracy lay but for indicting one of a capital Crime; and that after an acquittal by Verdict. But since the Statute of 33 Edw. 1. de Conspiratoribus, Actions have been brought for conspiring to Indict one of Trespass, or to Sue one maliciously without cause of A­ction, as this case is, and so is Br. tit. Consp. pl. 2. and by F.N.B. 116. [Page 19] Such an Action in the nature of Conspiracy lies against one. And the Title of the Action in this Case is In placito transgr. super ca­sum; and for these Reasons all the Court were of Opinion for the Plaintiff. Vid. Ante.

Braithwaites Case.

BRaithwaite brought a Mandamus to the Mayor, Bailiffs and Burgesses of the Town of Northampton, to be restored to his place of Alderman there,

They make a Return, and in their Return set forth the Letters Patents of 16 Car. by which they were Incorporated; and power is given them of holding a Common Council, consisting of a Mayor, 2 Bailiffs and 48 Burgesses, and that the Mayor, Bailiffs, and such Burgesses as had been Mayors, (commonly called Alder­men) should have power upon just Cause to amove any Common Council Man from his place there; and then they set forth how Braithwaite was a Member of the Common Council, and had committed divers Offences, which they expressed in particular. Whereupon, the 18 of Dec. 17 Car. the Common Council assem­bled together, & summoniri procuraverunt the said Braithwaite; and he not coming to answer, was the same day amoved ab officio suo & loco suo in Communi Concilio per Majorem & Bur­genses authoritate & secundum Chartam praedictam.

It was also set forth, That they had a command from the Kin and Council to amove him. Vpon this Return there were four Exceptions taken.

First, That it did not appear that he was summoned; for it ought to have been, qui quidem Braithwaite postea summonitus fuir, and not summoniri procuraverunt. Sed non allocatur, for it was held clearly to be all one. Otherwise, if it had been quod procuraverunt J.S. eum summonire.

A Second Exception was, That their proceedings were too quick; for they amoved him the same day wherein he was sum­moned. Sed non allocatur, for it appearing he lived in the same Town, and refused to come to make his defence, they might im­mediately amove him.

A Third Exception was, That they had exceeded their power, which was only to amove him from his place in the Common Council, and they had amoved him from his Office. Sed non al­locatur; for 'tis that wherein his Office consists, and indeed it was so averred in the Return.

But the main Exception was, For that they had not (as was alledged) pursued their Authority; for the Mayor, and such Burges­ses who had been Mayors, have power given them to amove. And here the Amotion is said to be per Majorem & Burgenses, so that it [Page 20] might be by the Mayor and Burgesses which never had been Mayors; and if in regard it was indefinite, it should be intended, that all the Burgesses were there, and it may be the Amotion was by the Vote of such Burgesses as have not been Mayors, they being the greater number, and the others might dissent; as if the Mayor and Court of Aldermen in London were impowered to do a thing, and this is done per Cives Londini, it cannot be good. Sed non allocatur. For

First it shall be intended, That all the Burgesses were there, and that they all agreed in the amoving of Braithwaite. And if the truth were, that the Burgesses which were qualified dissented, which must not be presumed, they might bring an Action upon the Case for the false Return: And further, to enforce the intendment as be­fore it is said, to be per Majorem & Burgenses secundum Chartam: If it had been returned, that he was amoved secundum Chartam generally, that had not been good, for there must be the manner returned, That the Court may adjudge whether the Authority be pursued.

Nota hoc.It was further declared by Keeling, Rainsford and Moreton, That the King and Council might Disfranchise any Member of a Corporation. And it was said by Rainsford, that the Walls of Northampton were ordered to be pulled down by the King and Council, à fortiori, an Alderman might be displaced upon just Cause; and here was no Exception to the Causes returned. But to this Twisden said nothing.

Anonymus.

Vid. 5 Co. 32.UPon a Fieri facias to Levy a Debt recovered against an Exe­cutor, the Sheriff returned nulla bona; whereupon, after a Testatum, &c. a Writ was awarded to the Sheriff to enquire, &c. who returned that Goods to the value of the Debt, came to the Executors hands, & elongavit, vendidit, disposuit & ad proprium usum suum convertit. And Issue was taken by the Party, who came in upon a Scire facias, quod non elongavit, &c. and the Iury found for the Plaintiff. And it was moved by Saunders in Arrest of Judg­ment,

That there was no proper Issue, neither did it appear that there was any Devastavit; for the Executor may eloigne and sell the Goods; therefore the Return and Issue ought to have been quod Devastavit.

Sed non allocatur; for this tantamounts; and the Presidents are so, as 'tis a good Warrant for a Capias in Withernam, when the She­riff returns, that the Defendant in Replevin hath eloigned the Beasts; so the Executor ought to be charged de bonis propriis upon his Re­turn.

Wharton and Brooke.

IN an Action for Words, the Plaintiff declared, That she was and had been a long time a Midwife, and got divers Gains; and that the Defendant, to scandalize her in her Profession, said of her, She is an Ignorant Woman, and of small Practice, and very unfortunate in her way: There are few that she goes to, but lye desperately Ill, or die under her hands.

The Court held the Action maintainable.

But Twisden said, this hath been Adjudged, Where one brought an Action, declaring she was a Schoolmistress, and taught Children to Write and Read, by which she got her Livelyhood; and that the Defendant said of her, She was a Whore, and that J. S. kept her as his Whore: That to slander one in such a Profession was not maintainable without special Damage.

Sir Thomas Player (Chamberlain of London) and Jones.

REsolved by the Judges, That the By-Law in London, whereby the Number of Carts were restrained, was a good By-Law.

Walter and Chauner.

IN Trespass the Defendant Iustifies for Damage feasant. The Plaintiff in his Replication prescribes for Common, in the place where, &c. in this manner:

Until the Field was sown with Corn; and after it was sown, & post blada illa messa, until it was sown again. To which the Defendant Demurs.

And it was said, That this Prescription was unreasonable, viz. To have Common in Land sown. To which it was Answered and Resolved by the Court, That as the Prescription was laid, the Common was not claimed until after the Corn was reaped.

Nota, Vpon a Fieri facias the Sheriff Returned, That he had taken Goods, and that they were rescued from him by certain Persons: And it was held to be no Return, and that he was to be Amerced.

Anonymus.

ONe recovers Debt, and then brings a new Action of Debt upon the Judgment: The Defendant pleads, Tender of the Money before the Action brought, & uncore prist, and the Plaintiff could have no Costs.

[Page 22]If the Defendant plead in Abatement of the Writ, and the Plaintiff Demurs, and 'tis Adjudged against the Defendant, it shall be only quod respondeat ulterius.

But if he alledge any thing in Abatement whereupon Issue is joyned, and tryed and found against the Defendant, there the Plaintiff shall have his Judgment to recover his Debt.

Skier and Atkinson.

IN an Action upon the Statute of 8 H. 6. of Forcible Entry, the Secondary craved the direction of the Court before he could tax Costs; and they were doubtful in it, and rather inclined, that the Plaintiff was to have no Costs: But upon the view of Pilford's Case in 10 Co. and the Books there cited, they resolved that he should have Treble Costs.

Crosse and Winter.

IN an Action for these Words, Thou art of Thievish Rogue, and didst steal Plate from Wadham Colledge in Oxford.

The Defendant Iustified, for that he did steal the Colledge Plate.

The Plaintiff Replied, De injuria sua propria. The Words were alledged to be spoken in London, and thither the Venire facias was awarded, and there was a Verdict for the Plaintiff.

It was moved in Arrest of Judgment, That there was a Mis-Trial, for the Iury ought to have come out of Oxford; for the Issue is joyned upon the Matter in the Justification, and the Words are confessed:Hob. 76. And with this agrees Ford and Brooke's Case in 3 Cro. 361. expresly.

But it was Resolved by the Court, That this was aided by the late Statute made at Oxford, being tried by a Jury of the proper County where the Action is laid, tho' the Issue upon pleading may arise out of another place and County.

Note, An Act of Parliament was made to continue for Three years, and from thence until the end of the next Session of Parlia­ment, Vid. Hob. 78. and no longer. And it was Resolved, that this must be in­tended a Session, which commences after the Three years expired: For if a Session should be within the Three years, and continue for many years after, the Act would continue.

Note, It cannot be called a Session of Parliament unless the King passes an Act.

The King and Serjeant.

UPon a Certiorari to remove a Conviction of Forcible Detainer by the View of two Iustices, upon the Statute of 15 R. 2. The Record Returned was, Questa est nobis Jana Wood Vid', quod quidem pacis Domini Regis perturbatores in domum mansional' existens liberum tenementum ipsius Janae manu forti ingressi sunt, &c.

Exception was taken to it, because it was not adtunc existens liberum tenementum ipsius Janae.

To which it was Answered, That altho' in an Indictment of Forcible Entry it must appear that the place was the Freehold of the party at the time of the Entry with Force, because upon the finding of it a Restitution is to be awarded, and where 'tis gene­rally existens liberum tenementum, it may be referred as well to the time of the Indictment, as to the Entry; yet here 'tis not material, because no Restitution is to be awarded, but the Male­factors being convicted by the View of the Iustices, are to be Fined and Imprisoned: And the President in Mr. Dalton's Book of Justice of the Peace, fo, 356. makes no mention of whose Free­hold at all: But however here existens liberum tenementum shall be referred to the Complainant, tho' there be not adtunc, and of that Opinion were the Court: But Twisden was of Opinion, that it was not necessary to be alledged in this Case at all. Postea.

Sir Andrew Henley versus Dr. Burstall.

IN an Action upon the Case the Plaintiff declared, That he being a Justice of Peace, the Defendant had Indicted him for rescuing of a Vagabond out of the Constables hands, who brought him before him, so that the Law could not be executed against him.

It was said, To Indict a man for such a Crime in the Execu­tion of his Office, was Actionable; and it has been often Re­solved, That an Action would lye for Indicting a man of Barretry, and in the Book of Assize 13. for Indicting one for Trespass. And to this the Court did incline; but they would further Advise. Postea.

The King versus Ring.

ERror to Reverse a Judgment in an Indictment of Forgery against Ring upon the Statute of 5 Eliz. cap. 4. for that he Scienter subdole & falsò fabricavit quoddam falsum factum & scrip­tum Indentatum Barganiae & venditionis, which was said to be Inrolled, per quod Harrison Keymer & Henry Keymer did sell to [Page 24] J.S. such Lands; and then sets forth the Indenture verbatim, & quod postea praedict' Ring praedict' Chartam esse falsam & contra­factam, vi & armis pronunciavit & publicavit; and this was ea intentione ad perturbandum statum, & titulum & interesse of Har­rison and Henry Keymer, and their Heirs.

The first Error assigned was, That the Indictment was for Forging of a Deed of Bargain and Sale; and the Indentures set forth were a Lease and Release. Also it did not appear in what Court it was Inrolled; and it must be Inrolled at one of the Four Courts at Westminster, or before the Justices of the Peace at the Sessions to be a Bargain and Sale; and whereas the Indictment is for Forgery of a Deed, per quod Harrison and Henry Keymer did sell, only one of them was party to the Deed set forth. And it ought to have been in quo continetur that they did sell, and not, They did sell, whereas the Deed was Forged, which as was said, is oppositum in objecto. And where it is that Sciens praedictam Chartam esse falsam vi & Armis pronunciavit & publicavit, it was said it ought to have been, Vi & armis praedictam Chartam pronunciavit & publicavit: And for this Vauxes Case in 4 Co. was cited, where it is Nich. nesciens praedictum potum cum veneno fore intoxicatum, sed fidem adhibens dictae persuasioni dicti W. recepit & bibit; and because it was not praedictum venenum recepit & bibit, it was held insuffi­cient; for Indictments must have precise certainty, fo. 44.

Another Exception was, That this Forgery was said to be ea intentione ad perturbandum statum titulum & interesse of them and their Heirs, and it did not appear that they had a Freehold; and the punishment inflicted by the Statute is more severe when the Forgery is to disturb the Freehold, than when it only concerns a Chattel: Also it ought to appear in whom the Freehold was at the time of the Forgery, as an Indictment of Forcible Entry upon the Statute of 8 H. 6. must express in whom the Freehold was at the time of the Force. Et Adjornatur.

Anonymus.

UPon Process against one, the Sheriff returned a Non est inventus, and an Affidavit was made, That the Defendant was one of the Sheriffs Bailiffs; and the Sheriff was amerced.

Anonymus.

IN Trover and Conversion against Baron and Feme, the Plaintiff declared, Quod ad usum proprium converterunt, which was naught, because it must only be ad usum of the Husband; and yet it may be converterunt if she were present; yet whatever she doth is the act of her Husband. 1 Cro.

Sir Andrew Henley and Dr. Burstall.

THe Case was move [...] again, and spoken to in Arrest of Judg­ment, That no Action would lye for proceeding against a man by Indictment; and it would discourage all legal Prosecuti­ons of Offences; and 4 Co. 14 b. was cited, where it is resolved, That no Action lies for Exhibiting of Articles to a Justice of the Peace against one, tho' the matter he false; nor for preferring a Scandalous Bill in the Star Chamber, concerning things whereof the Court had Iurisdiction. But an Action upon the Case, or Conspiracy, lies where Life or Member are brought in jeopardy by a malicious Indictment.

But notwithstanding the Court Resolved, That the Plaintiff should have Judgment. Tho' 'twas further alledged, That there was no Issue joyned; for in the Pleading and Ioyning of the Issue the Defendants Christian Name was mistaken; but the Court would amend that, it being rightly named before in the Record. Ante.

The King and Serjent.

AN Indictment of Forcible Entry and Detainer was preferred against Serjent; and the Iury found as to the Detainer with Force, Billa vera; but as to the Entry, Ignoramus: And it was moved to quash this Indictment, because they ought to have found all or none; and of that Opinion was the Court. Ante.

Rumsey and Rawson.

THe Case was moved again by Mr. Solicitor, That the Plaintiff having Intituled the Parson to Common for 200 Sheep, levant and couchant, and that these Beasts were levant and couchant, and that he put them in by the Licence of the Parson. He ought to have shewn, That the Licence was by Deed, being to take a Profit in alieno solo; and the Statute (which gives remedy after Verdict, when he doth not say, Hic in Curia prolat') doth not aid this: And 'tis necessary to plead a thing by Deed, whose nature requires it.

But to this it was Answered by Jones, 2 Cro. 424 That a Parol Licence was sufficient in this Case, being only to take the Profit unica vice, there passing no Estate in it: And the Plantiff had Iudg­ment.

Pomfret versus Ricroft.

IN Covenant the Plaintiff declares, That the Defendant demised unto him a certain Messuage, excepting a piece of Ground whereupon a Pump stood; and grants, that he shall have the free use of the Pump during the term; and Covenants, that he should enjoy dimissa praemissa; and assigns a Breach, in that he suffered Antliam praedictam esse fractam & totaliter spoliatam. And to this the Defendant Demurs.

And it was said in Maintenance of the Action, That the De­fendant having granted the free use of the Pump, was bound to do all things necessary to make his Grant effectual to the Plaintiff, or else he broke his Covenant of Enjoying; and if the Plaintiff should come to Repair it he would be a Trespasser: And of this Opinion was Keeling. But Twisden conceived, That an Action of Covenant would not lye, there being no express Covenant to Repair it: Otherwise if he had taken away the Pump; and here he might bring an Action upon the Case, because he lost the use of it; and they Two being only in Court, it was Adjourned. Postea.

Anonymus.

A Presentment was made in a Leet for Erecting of a Glass-House, which was said to be ad magnum nocumentum, per juratores Jurat' pro Dom' Rege, & Dom' Manerii, & tenentibus. It was said, A Man ought not to be punished for erecting of any thing necessary to the exercise of his lawful Trade; but it was An­swered, that this ought to be in convenient places, where it may not be a Nusance. For Twisden said, He had known an Information Adjudged against one for Erecting of a Brew-House near Serjeants-Inn: But the other Justices doubted, and agreed, that it was un­lawful only to Erect such things near the King's Palace.

But this Presentment was clearly Ill, because it was not ad com­mune nocumentum: And it was said further, That the Leet was the King's Court, and therefore it ought not to be Jur' pro Dom' Rege, & Dom' Manerii, & tenentibus. But the Court held it Sur­plusage for tenentibus, and good for the King and the Lord of the Mannor: For Leets are granted to the Lords as derived out of the Tourn, 2 Cro. 382. for the ease of the Resiants within its Iurisdiction.

More versus Lewis.

IN an Assumpsit the Plaintiff declares upon Two Promises; One was, That in Consideration that he had done him multum & gratissimum servitium, the Defendant promised to pay him Ten Pounds a year.

The Consideration of the other was, That he had done him multa beneficia.

Vpon Non Assumpsit pleaded, and found for the Plaintiff, as to both the Promises and entire Damages given; it was moved in Arrest of Judgment, that neither of these Considerations were sufficient, especially the last; for there ought to have been some Service particularly expressed.

To which it was Answered, That this being after a Verdict, the Court must intend, that the Plaintiff gave in Evidence something that he did, which was Consideration sufficient, otherwise the Jury would have give no Damages. And a Case was cited in Hutton's Rep. 84. where the Plaintiff in an Assumpsit declared, That in Con­sideration that she had served the Defendant and his Wife, and done them loyal Service, that he would give her 13 s 4 d And a Verdict being found for her, she had Iudgment. Sed nota, In the Book nothing was said to be moved in Arrest of Judgment, but the Insufficiency of the Consideration, in respect that it was executed and laid to be done at the Request of the Defendant.

But the Court held clearly, that nothing being particularly expressed in the Consideration of the Second Promise, in this case it was meerly void, and entire Damages being given, the Plaintiff could not have his Judgment. And thereupon Iudgment was Entred, Quod querens nihil capiat per Billam.

Gregory versus Eads.

ERror to Reverse a Judgment given in the Court at Warwick, in an Assumpsit, where the Plaintiff declared of Three Pro­mises, whereof one was found for the Plaintiff, and as to the other two, that the Defendant Non Assumpsit; and Iudgment was given for the Plaintiff for that which was found for him; but no Iudgment was given as to the other, that the Plaintiff should be amerced pro falso clamore, or quod Defendens eat inde fine die. And it was assigned for Error, that this Judgment was defective, and ought to be Reversed. To which it was answered, That the Judgment ought to stand for so much as was good; Vid. con. 2 Cro. 424. and 2 Cro. 343. was cited, where in an Action for Words spoken at divers times the Jury found the Defendant guilty as to all, and gave several Damages; whereupon there was Judgment, and a Writ [Page 28] of Error brought and assigned, in that the Words spoken at one of the times were not Actionable. Which being agreed, the Court Resolved, that Judgment should be reversed only quoad them, and should stand for the residue; for utile per inutile non vitiatur. And Slocomb's Case (1 Cro. 319.) where a Writ of Error was brought to Reverse a Judgment, given in an Action for Words, and assigned, in that it was Entred, Concessum fuit quod querens nihil capiat, &c. whereas it should have been Consideratum: Yet because the Words were Insufficient, the Court (tho' they held the manner of the Entry erroneous) ordered Judgment to be given, Quod querens nihil capiat per Billam. Et Adjornatur. Postea.

Note, It was said by Serjeant Maynard, That after all the Evidence given in an Information, the Kings Council may, without the parties Consent, withdraw a Juror and try it over again: And so he said it was done by Hobart, Attorney General, 5 H. 7. and in the Exchequer by Noy, in King Charles the First's time.

Barkly versus Paine.

IN an Assumpsit in an Inferiour Court, the Consideration was, That the Plaintiff should solicit a Cause in Chancery.

The Court Reverst the Judgment for want of Jurisdiction. It had also another fault, for it was Defendens in misericordia & capiatur.

Anonymus.

IT was moved to quash a Return of Rescous, for that it was Vi & armis in Ballivum meum affraiam fecerunt & è custodia mea adtunc & ibid' rescusserunt, and not Vi & armis rescusserunt. Sed non allocatur; for by reason of adtunc & ididem, vi & armis men­tioned at first shall be applied to all.

Hanway versus Merrey.

THe Case was, The Defendant had Covenanted to pay the Plaintiff a Sum of Money the 24th of June next; where­upon the Plaintiff takes out a Latitat, Teste 3 Maii, Returnable the last day of Trinity Term following, and Arrested the Defendant upon it: Which being made appear to the Court, they discharged the Arrest. For tho' 'tis allowed a man may take out a Latitat before the Money is due; Yet the party must not be Arrested upon it be­fore: And this differs from an Original, which if it bears Teste before the Money be due, it is abateable; but the Latitat is only to bring him in custodia, that the Plaintiff may declare against him by Bill, and after that the proceedings upon the Latitat cease.

[Page 29] Note, By the Custom of London, Hob. 86. 2 Cro. 667. the Debtor may be Arrested before the Money is due, to make him find Sureties.

It was also moved, That the Defendant might have Costs, being put to the charge of motions to be discharged; but the Court would grant none, it being but for taking out of the Process of the Court.

Stones Case.

THe Case being moved again, The Court (absente Moreton, & dubitante Rainsford) granted a Writ of Priviledge al­tho' he were obliged by his Tenure to be the Lords Reeve, for the Priviledge is presumed more Antient than the Creation of the Tenure, or at least shall be preferred, in as much as it concerns the Administration of Iustice. And Keeling said, An Attorney could not be amerced for not doing Suit to his Lords Court, at such time as his attendance is required at Westminster. Ante.

Sir Robert Cotton versus Daintry.

IN Trover and Conversion for Goods and Money assigned by Commissioners of Bankrupt, upon Not guilty pleaded, the Que­mon of Fact before the Jury was; Whether Sir A. B. (whose the Goods were) was a Bankrupt?

The Plaintiff proved, That he had Silk and other Merchan­dise in his Warehouse to a very great value; and that upon the Credit of them he took up divers Sums of Money, and after­wards sold them, but could not prove that they were brought in after the Debts contracted, or that he had Exported any thing at any time after, or a good while before.

To this the Court delivered their Opinions, That the selling of such Merchandise, if they were but the Effects of his former Trading, (for he had béen a Turkey Merchant) which he could not put off immediately upon his ceasing to Trade, could not make him a Trader; for the Statute only extends to those that Live by Buy­ing and Selling. It was also proved, That he had a 16th part in a Coalship, which at present Traded to Newcastle, but brought no present profit to the Owners, she being much in Debt for Re­pairs. It was said to be resolved in one Crashaws Case, That the having a part in a Ship did not make a man a Trader; but that was a Merchant Ship, which the Owners let out to Fraight; but the Owners Fraighted this Ship themselves, and were to have an account of profit and loss, and that if an Owner refused to Fraight he was Compellable. But in regard it could not be proved that Sir A. B. had Fraighted, or that he had received any account of profit, Keeling and Twisden were of Opinion that it did not [Page 30] make him a Trader. Rainsford and Moreton doubted. Wherefore it was offered the Plaintiffs Councel to have found it Specially; but they declined it, and the Jury found a general Verdict for the Plaintiff.

The day after motion was made for a new Tryal, Affidavit be­ing made, that the Foreman of the Jury was Brother in Law to one of the Creditors of Sir A. B. The Court was also informed, that the Plaintiff after the Verdict had paid the Jury 4 l a man, whereas the Rule of Court is, that they coming but out of Hart­fordshire, should have but 20 s a man.

Moreton and Rainsford held neither of these Reasons sufficient. For the first, it was their own Laches that they did not challenge upon it. For the other, they thought the breach of the Rules of Court ought to be punished, but did not think fit to set aside the Verdict for it.

Twisden for the last treason held a new Tryal was to be granted, and that it was fit to be made an Example to other Juries: For if the Parties may give what they will, it is to be presumed, the ability of one or other will much incline the Jury to find for him, from whom they may expect the greatest reward.

Keeling held both reasons sufficient for a new Tryal; which could not be, in regard the Court was divided; whereupon Iudg­ment was entred for the Plaintiff; and Execution taken out, and a Writ of Error was brought, which was sealed about an hour before Execution executed. Whereupon it was moved, That the Sheriff might bring the Money into the Court, for that the Writ of Error was a Supersedeas; for though the Sheriff shall not be in Contempt, if he makes Execution after the Writ, if no Superse­deas be Sued out, for that he had no notice; yet the Writ of Error immediately upon the sealing forecloses the Court, so that the Execution made after is to be undone; of which Opinion was the Court, and Ordered the Money to be brought in, and not deliver­ed to the Plaintiff.

Mr. Justice Moreton's Case.

HE brought Debt as Executor upon the 2d of Edw. 6. for not set­ting forth of Tythes due to the Testator, Vpon non debet pleaded, and a Verdict for him, it was moved in Arrest of Judg­ment, That this being a forfeiture given by the Statute for a Tort done to the Testator, it could not be brought by the Execu­tor. To which it was answered, That this Action was main­tainable within the equity of the Statute of the 4th of Edw. 3. that gives the Executor Trespass de bonis asportatis in vita testatoris. So an Ejectione firmae lies upon an Ejectment done to the Testator and Trover and Conversion, where the Conversion was in the time [Page 31] of the Testator. 1 Cro. adjudged, that an Executor may bring an Action upon the Case against the Sheriff, for an Escape upon Mesne Process suffered in his Testators life time. And the Court were clear of Opinion for the Plaintiff, and said it had béen formerly resolved so in the Exchequer Chamber.

The Lady Wortley versus Holt.

A Writ of Error was brought to Reverse a Judgment given in Dower in the Common-Pleas, which being affirmed in this Court, a Writ of Error was brought returnable in Parli­ament, which was discontinued by the Prorogation of the Parli­ament.

Another Writ of Error was brought Teste the last day of the Session of Parliament, viz. 1 March. Returnable 19 November, the day to which it was Prorogued.

The Court resolved, That though the first Writ of Error was not discontinued by any Act of the Party, yet this second should be no Superseas. First, It was doubted, whether this Writ of Error bearing Teste the last day of the Session was not deter­mined by the Prorogation? And it was held clearly, That A Writ of Error returnable ad proximum Parliamentum could not be good: But here the Parliament was Prorogued to a day certain. But however all the Court held, That in regard of the length of time in the Return it should be no Supersedeas. And Twisden cited a Case between Limmerie and Limmerie, where a Writ of Error was brought Teste 28 Nov. Returnable 28 Nov. proxime sequent' in Parliament', and resolved to be no Supersedeas, 2 Cro. 341. by rea­son of the length of the Return.

Anonymus.

AN Information was exhibited against A. B. for causing to be framed, printed and published a Scandalous Libel, Entituled, &c. thereby scandilizing of one C. D. Vpon Not guilty pleaded, It ap­peared upon the Evidence, that after the discovery of the Libel, there were Warrants from the Lord Arlington, Principal Secretary of State, to search the Lodgings of the Defendant, who was suspe­cted to be the contriver of it, where were found two of these Li­bels printed.

The Opinion of the Court was, That this was no Crime within the Information, though he gave no account how they came there;5 Co. 125. B. and the having of a Libel and not delivering of it to a Magistrate, was only punishable in the Sarchamber, unless the Party maliciously published it.

Anonymus.

Hob. 192, 300, 301.IF the Jury upon an Issue joyned in a Prohibition upon a Mo­dus Decimandi find a different Modus, yet the Defendant shall not have a Consultation, for it appears he ought not to Sue for Tythes in Specie, there being a Modus found.

Jurado versus Gregory.

THe Case was this, There was a Contract of Malaga concern­ing the Lading of a Ship, and for breach of this which was laid to upon be the Sea, (viz.) That he would not receive 40 Butts of Wine into the Ship according to the Agreement, there was a Libel in a Foreign Admiralty, and Sentence that the Wine should be received into the Ship; which being refused, an­other Libel was commenced in the Admiralty here in England, Reciting the former Sentence and charging the Defendant with the breach of it; and a Prohibition was prayed, because it ap­pears the Contract was made upon the Land.

Vid. Latch. 234.Against which it was objected by Finch Solicitor, that where Sentence is obtained in a Foreign Admiralty, one may Libel for Execution thereof here, because all the Courts of Admiralty in Europe are governed by the Civil Law, and are to be assistant one to another, though the matter were not Originally deter­minable in our Court of Admiralty; and for this he cited a Judgment, 5 Jac. Rolls Tit. Courts, Sect admiralty. And this the Court agreed. But here was no compleat Sentence in the Foreign Ad­miralty, but only an Award, that the Wine should be received; and now for breach thereof he Sues here, which is in the nature of an Original Suit, and to have Execution of the Sentence; and this ought not to be, though the breach were at Sea, it be­ing of a Contract made upon the Land, wherefore they granted a Prohibition.

The King Grants bona & catalla felonum, the Grantée shall not have Felons Debts, nor bona & catalla Felonum de se.

Anonymus.

A Conviction was certified of one, for carrying of a Gun, not be­ing qualified according to the Statute, where the words in the Statute are, Upon due Examination and proof before a Justice of the Peace.

The Court resolved, That that was not intended by Jury, but by Witnesses; and no Writ of Error lies upon such Conviction.

And an Exception was taken, because it was before such an one Iustice of the Peace, without adding Nec non ad diversas Felonias, Transgressiones, &c. audiend assign'. And the Court agreed, so it ought to be in Returns upon Certiorari's, to remove Indict­ments taken at Sessions. But otherwise of Convictions of this nature, for 'tis known to the Court, that the Statute gives them Authority in this Case.

The King versus Benson.

IN an Information against him for Extortion, an Issue was joyn­ed the day the Jury were returned, and the King sent a Writing under his Sign manual, to Sir Thomas Fanshaw Clerk of the Crown, to enter a Cesser of Prosecution: And Palmer Attorney General af­firmed, that the King might stay proceedings; yet notwithstanding, the Court proceeded to swear the Jury, and said they were not to delay for the great or little Seal; whereupon the Attorney entred a Noli prosequi.

Anonymus.

TRover against Baron and Feme, and laid quod ad usum pro­prium converterunt; and it was alledged, proprium might be applied only to the Husband; so also if it had been ad usum suum. But the Court held neither had been good; so it was prayed that Judgment might be entred, quod Querens nihil capiat per billam: For if it had been quod Defendens eat inde sine die, the Plaintiff could not have brought an Action de novo.

Note, A man is Outlawed in Middlesex, A Capias utla­gatum may be sued out against him into any other County, with­out a Testatum.

Anonymus.

IN Trespass, the Defendant justifies by reason of Common in the place where, for Cattel Levant and Couchant upon his Land, and doth not aver the Beasts were Levant and Couchant. This is aided after a Verdict.

A Judgment in Debt is had in the Kings Bench, and a Writ of Error is brought; it still remains a Record of the Kings Bench; and an Action of Debt may be brought upon the Judg­ment.

In a Writ of Error, if the Defendant dyed, the Writ is not aba­ted: Otherwise if the Plaintiff die. And the Secondary informed the Court of a Case betwéen Sir H. Thyn and Corie, where a Scire facias ad audiend. Errores went against the Executors, when the Defendant in the Writ of Error dyed.

Note, The Exchequer Chamber doth not award a Scire facias ad audiend. Errores; but notice is given to the Parties concerned.

Skirr and Sikes.

IN Trespass upon the Stat. of 8 H. 6. the Plaintiff had Iudgment. It was moved, whether a Writ of Error would lie of this into the Exchequer Chamber. For though Trespass be one of the seven Cases where the Statute gives it; yet it might intend Common Trespasses only, and not where the Action is founded upon a Sta­tute; as Actio de Scandalis Magnatum is not within the Statute. And the Court would advise.

Cabell and Vaughan.

5 Co. Whelph­dales Case, He cannot plead non est factumIN an Action of Debt upon a Bond against one, and it appears another was joyntly bound with him; wherefore the Defendant Demurrs. But it was adjuged for the Plaintiff; for the Defendant cannot Demurr in such case, unless the other Obligor be averred to be living, and also that he sealed and delivered the Bond, 3 Cro. 494, 544. Ascue and Hollingworth's Case, 28 H. 6. 3. And if one be bound to two, one Obligee cannot Sue unless he Averrs the other is dead. In B.R. 1651, 1068. Levit & Staneforth.

Perries Case.

IN an Information of Forgery against him, there was a Mis­trial. And it was moved, That this was aided by the Sta­tute of 21 Jac. the general Purview whereof is extended to any Action, Suit, Bill or Plaint. Then there is a Proviso, which excepts Indictments and Informations upon Penal Statutes; and this being an Information at Common Law, was not within the Proviso; and it may be taken within the word Suit, for it is Secta Domini Regis.

But the Court held it not remedied, either by the words or in­tention of the Act. Vid. Ante.

Nokes and Stokes versus . . . .

THey two brought an Action of Debt upon a Bond. The De­fendant pleads the Release of one of the Plaintiffs. They pray Oyer of the Release, which was of all Actions, Suits, &c. that he had against the Defendant upon his own account; and pleads that this Bond was not upon his own account; and upon this, Issue is taken, and found for the Plaintiff.

Now it was moved in Arrest of Judgment, That this Issue was frivolous. And upon the whole matter it appears, that the Plaintiffs have no cause of Action; for the Release of one Obligée discharg­eth the Bond; and it must be upon his own account.

But the Court Seriatim delivered their Opinions for the Plain­tiffs; for he might take this Bond as a security of a Debt, with which he was intrusted for another. And the truth of the case upon the Evidence was, That the Defendant being charged with the payment of divers Legacies to Strangers, was requested by one of the Plaintiffs to enter into Bond to him, and the other Plaintiff (who afterwards made the Release) that should be Conditioned for the payment of the Money Bequeathed to the Obligees, to the use of the Strangers, which not being done, the Defendant was Arrested at the Suit of the Plaintiffs; this being made known to the Plaintiff, who was absent at the taking of the Bond, and knowing nothing of the Suit, was con­tented to Release all Actions he had against the Defendant upon his own account.

King versus Atkins.

DEbt upon a Bond of 2000 l The Defendant demands Oyer of the Condition, which was, That whereas the Plaintiff was bound with the Defendant to the King, that the Defendant should give a true account of such Moneys, as he should receive [Page 36] for the Excise and Chimney Money, And that the Defendant should save him harmless from all Payments, or Suits upon that Bond; and pleads that no Suits, Process or Execution was against the Plaintiff upon that Bond, & issint he saved him harmless. The Plaintiff replies a Scire facias issued against him out of the Exche­quer upon the Bond, and that he was forced to retain an Attorney, and that he paid 1 s for his Appearance. To this the Defendant Demurrs.

Because he did not alledge that he gave him notice. And this was said not to be like Broughtons Case, 5 Co. For there the Defendant knew the Money was to be paid at the day, and it was to save him harmless from the single thing; but here from a great many, so that it was requisite he should have notice. Where the Mesne is bound to acquit the Tenant, the Tenant shall not recover Da­mages, unless he gives the Mesne notice that he is distrained, so that he may Replevy the Beasts.

But it was said, That no notice ought to be given, where the thing is an Act of a third person, as to pay Money when J. S. comes into England.

To which it was answered, That did not lie in the Conu­sance of either Party; but this was in the notice of the Obligée. But that which séemed most against the Demurrer in this case was, That the Defendant having pleaded no Process, &c. he takes upon him the knowledge of it:Vid. 1 Cro. 54. And if in the Replication the Plaintiff had alledged notice, and the Defendant had Traversed it; it would have been a departure; and the Court advised until the next Term. Postea.

Welsh versus Bell.

TRespass quare clausum fregit, and taking of two Horses out of his Cart: The Defendant justifies the taking of them, as a Distress for Rent due to him. And to this the Plaintiff Demurrs.

First, He could not sever the Horses, but ought to have distrei­ned Cart and all, according to the Book of 20 Edw. 4. 3. Distress of a Cart loaden with Corn, Rolls 270. 3 Cro. 783. and four Horses in it; adjudged not excessive, because he could not sever the Horses. And in 3 Cro. 7. a Dif­ference is taken between Distress for Rent, and Damage Fea­sant to this purpose. And the common ground is, that a Distress must be taken so as it may be returned in the same plight, 1 Inst. 47. a.

Secondly, It appeared also in the Declaration, That there was a Servant of the Plaintiffs in the Cart, by reason of which it was alledged, that the Cart and Horses were priviledged; for a Horse cannot be distrained upon which a Man is Riding, 3 Cro. 549, 596. Ed Adjornatur.

[Page 37] Twisden cited a Case adjudged before Rolls Chief Justice in Trespass, for taking of his Trunk. The Case was, the Defendant distrained it for Rent, and being Informed that there were things of Value in it, he caused it to be Corded to prevent damage. And for that he was adjudged a Trespasser ab initio.

Anonymus.

AN Action on the Case was brought against the Defendant, for taking and keeping of the Plaintiffs Wife from him: And upon Issue joyned the Court was moved to defer the Trial, the Case being that the Wife was Daughter of the Defendant, and taken from him by the Plaintiff without his Consent, and as the Plaintiff affirmed, Married to him. Now this Marriage was questioned in the Court Christian: And the Court thought it rea­sonable that the Trial should be delayed until the Marriage was determined there. But they were Informed on the other side, that the Court were ready to give Sentence, That the Marriage was good, and the Defendant had Appealed. Wherefore they thought fit that the Trial of the Cause should proceed.

The King versus Nelson.

AN Order for the keeping of a Bastard Child being removed by Certiorari, it was moved to have it quashed, because it was ad Sessionem pacis in Com' praed', and doth not say, Tent' pro' Com' praedict'.

Sed non allocatur: For such strictness is not required in an Order. But Twisden said, it ought to be so in an Indictment.

It was further alledged, that it ought to appear, That the Child was likely to be chargeable to the Parish; which was agreed. But that was sufficiently set forth in the Order; for upon Read­ing of it, it appeared, that he was ordered to pay such Charges as the Parish had been at.

Wherefore the Court confirmed the Order, and awarded, that he should pay such Costs as the Parish had been at for Contesting of it; as was done formerly in one Haslefoot's Case: And besides, the Court Committed Nelson.

Anonymus.

DEbt upon a Bond, Conditioned to perform Covenants: If the Defendant pleads performance without demanding Oyer of the Indenture it is a good cause of Demurrer.

Anonymus.

IN Covenant the Plaintiff declares, That he let the Defendant a House, and that he Covenanted to Repair it. The Defen­dant pleads, That it was sufficiently Repaired before the Action brought.

The Plaintiff Demurs, because he doth not plead, That he Re­paired it; for it may be the Plaintiff himself did it.

Keeling and Raynsford inclined against the Demurrer; because if it were Repaired, be it by any Body, the Plaintiff hath no Damage nor cause of Action.

But Twisden doubted, and afterwards the parties waived their Demurrer and went to Issue.

Anonymus.

AN Information was brought upon the Statute of Usury, for taking the 30th of May, in the 20th year of the King, 42 s pro deferendo 25 l for three Quarters of a year, (viz.) from the 30th of August, Anno 19. Vpon Not Guilty pleaded, it was found for the King, and moved in Arrest of Judgment, that this was not within the Statute, which extends only where there is an Usurious Contract in the beginning, and there it makes the Secu­rity void: Or if there be an Agreement after the Money lent for Forbearance, upon Consideration of paying more than the Statute allows for Interest, which is punishable in an Indictment or Infor­mation; but the Money is not lost: But in this case, the time of Forbearance was past, and the party might give what he pleased in recompence for it, there being no precedent Agreement to enforce him to it.

Sed non allocatur: For the Court said, They would expound the Statute strictly; and if liberty were allowed in this case, the Brokers might oppress the People exceedingly by detaining the Pawn, unless the party would give them what they would please to demand for the time after failure of payment.

Wingate and Stanton, the Bail of William Stanton.

IT was Resolved, That where a Scire facias goes against the Bail in this Court, an two Nichils are Returned, and Judgment is had thereupon, no Writ of Error can be brought in the Exchequer Chamber, but in the Parliament only.

Also, after such a Return it cannot be Assigned for Error, that there was no Capias awarded against the Principal. But in that case the [Page 39] Bail is relievable only by Audita querela. But if the Sheriff Returns a Scire feci, they may plead it. Fitz. N.B. 104. I.

Nota, A man cannot Release a Debt by his Will.

The King versus Saunders.

SAunders was Convicted before two Justices upon the Statute of 32 H. 8. cap. 6. for carrying of a Gun. Which being removed by Certiorari, was quashed, because it was coram nobis Justiciariis Domini Regis ad pacem suam conservand', wanting the word assignatis.

Anonymus.

AN Indictment was quashed, because it was Justiciarii ad pacem conservand' assign', and not ad pacem Domini Regis; neither would ad pacem publicam serve. And for another Reason, because it was ad Sessionem in Com' tent', and not pro Com': But if it were ad Sessionem in a Borough Incorporated, it were good, tho' it were not pro Burgo.

Maleverer and Redshaw.

DEbt upon a Sheriffs Bond; The Defendant pleads, that there was an Attachment issued out of Chancery against him, Re­turnable Octab' Sanctae Trin'; and the Condition of this Bond was, that he should appear Crast. Sanctae Trin. and so he pleads the Statute of 23 H. 6. against it; for that it was taken for Easiamento & favore.

The Plaintiff Replies, That the Writ was Returnable Crastino Sanctae Trin. And Traverses, That the Bond was taken for ease and favour. To which the Defendant demurs,Vid. 11 Co. 10. a. supposing that he should have Traversed, that the Writ was Returnable Octab. Sanctae Trin. which is the Matter of the Defendants Bar, and the other is but the consequence or Conclusion. Et Adjornatur.

Gregory versus Eades.

ERror to Reverse a Judgment given in an Inferiour Court, where an Assumpsit was brought, and the Plaintiff declared upon three several Promises, and the Jury found two for him, and the other non Assumpsit: And Judgment was given for the two, that he should recover: but no Judgment for the third, that he should be amerced pro falso clamore, or that the Defendant eat inde sine die. And for this Cause Error was assigned.

But Powys Argued for the Defendant in the Writ of Error, that the Judgment should be affirmed as to the Two Promises, for which [Page 40] it was perfect, and cited Miles and Jacob's Case in Hob. 6. and 2 Cro. 343. where an Action was brought for Words, declared to be spoken at several times, and several Damages given, and Judg­ment, and a Writ of Error brought, and assigned for Error, that the Words spoken at one of the times were not Actionable; which tho' they were not, yet the Judgment was Reversed quoad them only.

But the Court said, That it was not like this Case, for here the Judgment was altogether Imperfect; and so were inclined to Reverse it; but gave further time. Ante.

Anonymus.

IN Replevin the Defendant avows for Rent Arrear. Vpon non concessit pleaded, the Jury find for the Avowant. The New Statute says, That the Defendant may pray that the Jury should enquire what Rent is arrear, and that he shall have Judgment for so much as they find.

Now the Court was moved, that this might be supplied by a Writ of Enquiry; as if they omit to enquire of the Four Points in a Quare Impedit, it may be so supplied, 10 Co. Cheney's Case But the Court held this could not be so; for the Defendant loseth the advantage of it by not praying of it: As where a Tales is granted, if it be not Entred ad requisitionem Querentis, or Defen­dentis, it is not good; wherefore he was bid to take his Judgment, quod returnum habeat averiorum, at the Common Law.

Anonymus.

FOur Executors, two of them are under Age; quaere, Whe­ther they shall all sue by Attorney.

Note, An Infant may bring an Action against his Guardian, which pleads any thing to his prejudice: Not so of an Attorney.

Wells versus Wells.

IN an Assumpsit the Plaintiff declares as Administratix to her Husband, who in his Life-time agreed with the Defendant, That they should be Partners in making of Bricks for J. S. and after his Death the Defendant promised the Plaintiff in Conside­ration, That she had promised him to relinquish her Interest in the Partnership, that he would pay her so much Money as her Husband had been out about the Brick. And upon non Assumpsit pleaded it was found for the Plaintiff.

[Page 41]It was moved in Arrest of Judgment, that here was no Consi­deration; for the Plaintiff had no interest in the Partnership, which being joynt, must survive to the Defendant; and she ought to have shewn how she relinquished her Interest.

But the Court held it a good Consideration; for it may be there were Covenants, that there should be no Survivorship; (and the Court will intend, after a Verdict, that there were) which tho' they do not sever the joynt Interest in Law, yet they give Re­medy in Equity, which to debar her self of is a good Conside­ration, and being laid by way of Reciprocal Promise, there needs no averment of performance.

William Bate's Case.

A Prohibition was prayed to the Commissary of the Arch­deacon of Richmond, to stay a Suit against Bates a School­master; who, as it was alledged, taught School without the Bishops Licence; and it was granted, because they endea­voured to turn him out; whereas they could only Censure him, he coming in by the Presentation of the Founder.

In a Feoffment of Tythes and Lands, where there is no Livery; if they do adjudge the Tythes to pass, notwithstanding there is no Livery, a Prohibition will lye.

In Debt upon a Lease at Will, there must be an Averment that the Lessee occupied the Lands. But it is otherwise upon a Lease for Years.

Anonymus.

THe Court was moved to grant an Attachment against a Ju­stice of the Peace, who upon Complaint refused to come and view a Force: But the Court denied it, and directed the party to bring an Action of Debt for the 100 l Forfeiture given by the Statute in that case.

It was said by the Court, That in an Execution upon a Statute Merchant there is no need of a Liberate, as there is upon a Statute Staple: And in the Case of a Statute Staple, the Conusee can bring [Page 42] no Ejectment before the Liberate; neither can the Sheriff upon the Liberate turn the Terre-Tenant out of possession, as he is to do upon an Habere facias possessionem.

Dier versus East.

AN Action was brought against the Defendant upon an Indeb' pro diversis Mercimoniis venditis & deliberatis to the Wife, to the use of her Husband, it being for her wearing Apparel. And after Verdict for the Plaintiff, it was moved in Arrest of Judgment, that this Declaration being laid, That the Sale was to the Wife, tho' it was to the use of the Husband, it was not good; as if it had been sold to the Servant of the Plaintiff.

Nevertheless the Court were of Opinion, That it being for her Apparel, and that suitable to her Degree, the Husband was to pay for it: as had been Resolved in this King's time, in Scot and Manby's Case in the Exchequer Chamber, and that the Declaration was well enough.

Anonymus.

THe Defendant in an Action of Debt upon a Bond, sued out an Injunction in Chancery; where after the Case had de­pended for two years, the Court was moved, that the Plaintiff might accept of his Principal, Interest and Charges.

The Court said, If the Defendant comes before Plea pleaded, and makes such a proffer, they are ex debito Justitiae to allow it: But now he having delayed the Plaintiff in Chancery two years, it was in their discretion. And the other three, against the Opinion of Keeling, thought fit to deny it.

Clarke versus Phillips & al'.

UPon the Trial in an Ejectment, the Title of the Plaintiff's Lessor appeared to be by a Remainder limited to him, for Life upon divers other Estates, and that there was a Fine levied, and Proclamations passed; but he, within the Five years after his Title accrued, sent two persons to deliver Declarations upon the Land, as the course is upon Ejectments brought.

The Court Resolved, that this was no Entry or Claim to avoid the Fine, he having given no express Authority to that purpose; and the Confession of Lease, Entry and Ouster, by the Defendant, should not prejudice him in this respect. In this Case Keeling and Twisden were of different Opinions in this Point, (Viz.) If he that hath power of Revocation over Lands, &c. makes a Lease for Life, whether it suspends the Power only, as a Lease for years would do, or extinguisheth it as a Feoffment?

The King versus Monk & al'.

IN an Information for a Riot, it was concluded contra formam Statuti 13 H. 4. which appoints Justice of the Peace, upon complaint of Riots, to View and Record them. And after Ver­dict it was moved in Arrest of Judgment, that this Information was not good, it being grounded upon this Statute, which only mentions Riots, and appoints them to be punished in the manner there expressed.

But the Chief Justice Keeling was of Opinion, that it being a Crime at the Common Law, and mentioned in this Statute, the Information was well concluded: But the other Justices inclined to the contrary.

Anonymus.

DEbt upon a Bond Conditioned to perform Covenants in an Indenture. The Defendant pleaded, That there were no Covenants contained in the Indenture on his part to be performed. The Plaintiff demands Oyer of the Indenture, which is Entred verbatim, and then Demurs; which he could not well do before the Entry of it, whereby it becomes part of the Bar; so the cause of the Demurrer appears.

Then it was alledged by Saunders, (whose Hand was to the Plea) That the Plaintiff could not have Judgment, because he had set forth no Breach. But the Court was much offended with him: For they held the Plea in Bar meerly for delay, and advised against the Statute of Westm. 1.

Robinson versus Pulford.

IN an Assumpsit the Plaintiff declared, That the Defendant in Consideration that the Plaintiff would deliver such silver Threads, and other Wares into the Shop of J. S. that he should require, that he would see him paid.

Now, after an Assumpsit pleaded, and Verdict for the Plaintiff, it was moved in Arrest of Judgment, That the Plaintiff had not averred in his Declaration that J. S. had not paid for the Goods: For the promise to see him paid, was no more than if he had said, If J.S. doth not pay you, I will; in which Case such Averment must have been.

But the Court Resolved, that a Promise to pay, and to see him paid, was all one, and the Averment unnecessary.

Rushden versus Collins.

IN an Assumpsit the Plaintiff declared the Consideration to be, pro opere preantea facto. After Verdict for the Plaintiff, it was moved in Arrest of Judgment, that opere was too general, and might intend so inconsiderable a matter as would not amount to a Consideration for the Plaintiff: But they gave Judgment; for they said labore or servitio had been adjudged sufficient.

Lee versus Edwards.

IN an Assumpsit the Plaintiff declared, That in Consideration that he would employ his skill and pains, and provide Medicaments for, and Cure a certain person of a Pthysick, that he would pay what he deserved; and lays another Promise at the same time in Consi­deration as aforesaid, and alledges the Promise somewhat varying from the first; and concludes with an Averment, That he had bestowed his pains, and cured accordingly.

Vpon Non Assumpsit pleaded, and a Verdict for the Plaintiff, the Court was moved to stay Judgment, because the Plaintiff had made no Averment of the Cure upon the first Promise, and entire Damages were given; so it was ill in all. But the Court were of Opinion, That in regard he had Averred it upon the second Pro­mise; so as it appeared upon Record that the Cure was done, it aided the omission of it in the first, especially being after a Verdict.

Nota, There is an Inquisition upon every ones death that dies in the Kings-Bench, by the Master of the Crown-Office and Coroner.

Pomfret versus Rycroft.

IN a Writ of Covenant the Plaintiff declared, That the Defendant demised to him a House, with the use of a Pump, and that he suffered it to be so out of Repair, that it became Useless. To this Declaration the Defendant demurs; and Counsel being heard on either side divers times, the Court delivered their Opinions severally.

Keeling, Rainsford, and Moreton held, that the Action did lye, the Use of the Pump being part of the things demised, which Words make a Covenant, as in 4 Co. Noke's Case, and in 5 Co. Spencer's Case; If a man let an House together with Estovers, to be taken in the Wood of the Lessor, and afterwards the Wood is stubbed up, there Covenant lies for the Lessee. And Rainsford put this Case: If a mans Lets the Middle Rooms of his House to one, and the Vpper to another, and lets the Roof of the House [Page 45] decay, he conceived Covenant would lie for the Lessee of the mid­dle Rooms. And if a Parson makes a Lease, and then Resigns, he is liable to Covenant, as in 12 H. 4. And the Lessee would be at a mischief, for he should be a Trespasser to Enter and Repair; and if the Lessor ousts the Lessee of any of the things demised, 'tis clear the Covenant lies; and this is as much an ouster as can be in this case, where the Lessor is possessed himself. And so Iudg­ment was given for the Plaintiff, against the Opinion of Twis­den, who held strongly to the contrary; for he said he might have an Action upon the Case, and so remedy for his Damage. Also he held clearly, That he might Enter and Repair, as if one Licence another to lay Pipes in his Ground to convey Water, he may justifie an Entry to Repair the Pipes. And he cited a Case adjudged in 9 Jac. where one by Licence erected a Cock of Hay in anothers Ground: And it was held, That the Owner of the Soil might put in his Beasts into that Ground; but he that had the Licence, might by vertue of that Licence also fence in his Hay. Quando aliquid conceditur, conceditur & id sine quo res ipsa uti non potest; and he said that he never met with a Case where Covenant would lie but upon an actual ouster, either by a Stranger that hath eigne Title, or the Lessor himself: And this was a non feasans, and in that he differenced it from the Case of Estovers, being an actual Tort to stub the Wood up; and in Co­venant upon an ouster of a Term, if it be not incurred, Iudg­ment shall be to recover the Term it self, as F. N. B. 145. which cannot be in this Case, for the Sheriff cannot put him into posses­sion of the use of the Pump; neither is it fit that he should recover Damages for all the Term, for it may be the Pump will be pre­sently repaired. And he conceived, that if the Lessor Cuts down Trées growing upon the Land Demised, no Covenant lies, yet the Trees are Demised with the rest. Ante.

Anonymus.

A Draws a Bill upon B. to the use of C. and Vpon Non-pay­ment C. Protests the Bill; he cannot Sue A. unless he gives him notice that the Bill is Protested; for A. may have the Effects of B. in his Hands, by which he may satisfie him­self.

Note, It was said, if an Action to recover Lands of which a Fine was Levied, were brought and discontinued by the Deman­dant, this would not amount to a Claim.

Glyn versus Smith.

A Scire facias upon a Record in the Kings Bench, where the A­ction is brought by Original, must alledge a place where the Court was holden; because 'tis Ambulatory, and the Writs returnable there are coram nobis ubicunque tunc fuerimus in Angliâ. But it is otherwise upon Records in the Common Pleas, for that is confined to a certain place by Magna Charta.

Anonymus.

IT was moved to quash a Return of a Rescous, because it was Mandavi Ballivis, who took him virtute Warr' praed' And it was said, Mandavi did not imply that it was in Writing. But the Exception was disallowed by the Court.

Anonymus.

IF the Party that brings an Audita Querela be out of Prison, the Court will Bail him, though grounded upon a surmise of a matter of Fact, as payment, &c. But if he be in Prison, not, un­less there be a Specialty.

Parries Case.

DIvers Deeds and Evidences were shewn to Counsel for his Opinion of the Title to certain Lands which were to be sold.

He delivers them to one Parry a Scrivener, by the consent of the Parties. Parry finding a Deed to concern the interest of a third person, gives it to him, and upon complaint to the Court, they commanded him to produce the Deed, that it might be delivered back again to the Parties, they conceiving it an abuse in his pra­ctice, which was under the Regulation of this Court.

Anonymus.

IN Replevin, in the Court at Canterbury, the Defendant avow­ed for Rent.

Afterward this was removed by the Plaintiff into the Kings-Bench, and the Defendant prayed a Procedendo; because Canter­bury was a County of it self, and no Assizes there, and so the Cause could not be tried: But the Court denied it, saying, it was their own fault that they had not the Assizes there, and every Subject had the liberty of removing his Suit into a Superiour Court. Twisden said, He had formerly known it to be denied in an Ejectment.

Girlington versus Pitfield.

IN an Action upon the Case, for malitiously prosecuting of an Indictment of Perjury against him, of which he was acquit­ted; upon Not guilty pleaded, it appeared upon the Evidence, that the Defendant was a Justice of the Peace, and procured some as Witnesses to appear against him, and his own name was endorsed upon the Indictment to give Evidence.

The Court agreed that this did not make him a Prosecutor; for if a Iustice of the Peace knows any person that can give Evidence against one that is indicted, he ought to cause him to do it. But it was proved on the Defendant's side, That this Indictment was drawn up by an Order of the Sessions. Wherefore Keeling Chief Justice said, That the Plaintiff deserved to be bound to his Good Behaviour for bringing of this Action.

Horne versus Ivie.

IN Trespass for taking of a Ship and Sails, the Defendant justified by a command from the Governours and Society of the Trade into the Canaries, who were Incorporated by that name, and had the sole Trade granted to them, with a Forfeiture of all such Goods as should be imported hither from thence, by any person not of their Company; and that the Ship of the Plain­tiff brought Goods from thence. To this the Plaintiff Demur­red.

His Counsel did not much insist upon the validity of the Patent, because it was a Monopoly; though it was said to be also against divers Statutes, to Prohibit Merchants frèe trading to forein parts, as 9 E. 3. cap. 1. 25 Ed. 3. cap. 2. 11 R. 2. cap. 7 and that there could grow no Forfeiture of Goods by Patent, at least not before Conviction. Neither were the words of the Patent very full to this purpose, for they were only, That they should forfeit such Ships and Goods, and be imprisoned as by Law could be inflicted upon the Contemners of the Kings Authority, 8 Co. 125. Noy 183. And the Court said the question was, Whether the King could Prohibit the Importation of Foreign Goods; for if he might, the Importation of them would cause them to be forfeited; And the Chief Justice said, The Ship also in which they: were shipped: But no Forfeiture of English Goods could grow by Letters Patents. And admitting all this for the Defendant, yet it was said the Plea was naught. First, Because he justified by a Command from a Corporation, and did not alledge it to be by Deed: And it was agreed, that a Corporation might employ one in ordinary Services without Deed, as to be Butler, 18 Ed. 4. 8. Br. Corp. 59. [Page 48] or the like: But one could not appear in an Assize as a Bailiff to a Corporation without Deed, Pl. Com. 797. 12 H. 7. 27. Neither can they Licence one to take their Trees without Deed, nor send one to make a Claim to Lands, 9 Ed. 4. 39. They cannot make them­selves Disseisours by their assent without Deed, or Command one to Enter for a Condition broken, 7 H. 7. 9. Rolls Tit. Corp. 514. Again it was said, The Plea was double, for that the Patent Pro­hibits the Trading thither, and also Importing from thence; and 'tis laid that he loaded Wines there and brought them hither, so an offence respecting both Parts, and one would have served. But of these matters the Court would be advised.

Burwells Case.

UPon complaint to two Justices about a Bastard Child; they by the 18 Eliz. order one Reynolds to keep the Child: Vpon this Reynolds appeared at Sessions; where they vacated the Order, and referred it back again to the Justices, who do no­thing.

The next Sessions after Burwell is judged the reputed Father, and ordered to pay so much a Week to the Parish, until the Child was 12 year old. This was removed into the Kings Bench by Cer­tiorari.

And they resolved, That the referring back again to the Ju­stices, by the Justices at the Sessions, was not warranted; and that the last Order was insufficient, because it was that he should pay the Parish due time until the Child was 12 year old, whereas the Father might take it away when he pleased; but it ought to have béen, that he should allow so long as it should be chargeable to the Parish; wherefore they bound the Parties to appear at the next Sessions by Recognizance.

Anonymus.

A Man hath a Messuage and a Way to it through anothers Freehoold, and 'tis stopped, then the House is aliened, the Alienee can bring no Action for this Nusance before request.

If a Man lets a House reserving a Way thorough it to a Back­house, he cannot come thorough the House without request, and that too, at seasonable times.

Anonymus.

IF the Husband and Wife be Arrested in an Action that re­quires Special Bail, and the Husband puts in Bail for himself, he must put in Bail for his Wife also; but if he lyes in Prison, the Wife cannot be let out upon Common Bail. But it is other­wise, if the Husband absconds himself and cannot be Arre­sted.

Anonymus.

IF a Man brings Debt for Rent, and upon his own shewing he demands more than is due, and upon non debet pleaded, the Jury find for him, he may remit the overplus, and have Judg­ment for the residue.

Note, One was Committed for sending of a Note to a Juryman, (after a privy Verdict was given,) to know what Verdict they gave.

Parris's Case.

AN Information was brought against him, for that he frau­dulenter & deceptivè procured one Ann Wigmore to give a Warrant of Attorney to confess a Judgment.

To this he pleaded Not guilty, and upon the Tryal it was de­bated, whether she might be admitted to give Evidence against the Defendant; for if he were Convicted, the Court said they should set aside the Judgment. Nevertheless she was sworn, by the Opinion of 3 Judges, against Twisden, This Suit being for the King. Vpon his Tryal he was found Guilty, and fined 100 Marks, and ordered to come with a Paper on his Hat expressing the offence.

Note, No Writ of Error to reverse a Judgment given in an Action, qui tam, &c. lyes into the Exchequer-Chamber, because the King is Party; so also upon the Statute de Scandalis Mag­nactum, 1 Cro. Lord Says Case.

Perill versus Shaw.

A Scire facias was brought against the Bail, who pleade that before the Return a Capias was issued out against the Prin­cipal; and that he was taken at D. and detained in Prison quo­usque postea he paid the Money; The Plaintiff pleads non sol­vit. Then the Defendant Demurrs.

[Page 50]And it was adjudged for the Plaintiff; for the Defendants Plea was vitious, because there is no place alledged where the Money was paid; and it is not necessary to be intended to be paid where he was Imprisoned: And though the Plaintiff did not De­murr, but replied; yet when there is a Demurrer, the first fault is fatal.

Sir John Kerle versus Osgood.

AN Action was brought for these words, spoken of him be­ing Justice of the Peace, He is a forsworn Justice, and not fit to be a Justice of Peace; if I did see him I would tell him it so to his Face.

After Verdict for the Plaintiff, it was moved in Arrest of Judg­ment, That these words were not actionable, because forsworn doth not necessarily intend any judicial Perjury, and there was no Communication of his Office. One said of a Justice of Peace, He is a Blood-sucker and seeks after Blood; if one will give him a couple of Capons he will do any thing, and held not actionable; because there was nothing to make them relate to his Office, Rolls 56, 29. Nevertheless, the Plaintiff had his Iudgment by the Opinion of all the Court; for the calling of him forsworn Justice, shews he intended Perjury relating to his Office; to which an Oath is annexed.

Manwood brought an Action for calling of him A corrupt Judge, 4 Co. Cases of Slander. 1 Cro. for calling of an Attorney A cheating Attorney. And Sir John Masham recovered for calling of him Half-eared Justice. Vid. Rolls 53. pl. 4. and 4 Co. Stucleys Case. And here the latter words, viz. That he is not fit to sit upon a Bench, Shews that he intended the Scandal in his Office; and words shall not be taken in mitiori sensu, so far as to draw them from the general Acceptation; and sermo refert ad conditionem per­sonae.

Twisden cited a Case, where a Man brought an Action for saying, He was a Debaucht Man, and not fit to be a Justice of the Peace; and not maintainable, because spoken of the time past: If it had been, He is Debauched, he said the Action would lie.

Hill versus Langley.

DEbt upon a Bond to perform an Award. After nullum fecere Arbitrium pleaded, The Plaintiff replies and sets forth, That they submitted to the Award of 4, so that they made it by the 16th of Nov. and signified it under the Hands and Seals of two of them, and then alledges the Award under two of their Seals; to which the Defendant demurred, conceiving the Award to be void, be­cause [Page 51] the submission was to four. But the Court gave Iudgment for the Plaintiff, according to the Cases in 2 Cro. 276. and 400.

Anonymus.

IN an Indictment for the using of a Trade contrary to the Sta­tute of 5 Eliz. It was said, That to keep a Shop within a Country Village was not within the Statute; and it were very inconvenient, that the Inhabitants must go to some great Town upon every occasion. And it was also Juratores dicunt super Sacra­mentum suum, and not adtunc & ibidem jurati.

If a Statute appoints an Indictment to be taken at the Quar­ter Sessions, the Caption must be Entred ad Quaterial' Ses­sion', &c. for ad General' Session' pacis will not serve.

Jackson versus Gabree.

JAckson took out a Capias ad satisfaciend' against Gabree and his Wife; the Gaoler lets the Husband escape. The Court was moved, that the Wife might be discharged; alledging that the Husband took no care of her, but let her lie there in a very necessitous Condition. They were doubtful what to do in it at the first motion, but did afterwards resolve, That unless the Plaintiff would get the Husband taken again, as he might do, they would discharge the Wife; and they said, the Escape of the Husband was the Escape of the Wife.

Anonymus.

AN Infant brought an Assumpsit by his Guardian, and decla­red, That whereas the Defendant entred into his Close and cut his Grass, that in consideration that he would permit him to make it Hay, and carry it away, he promised to give him six pounds for it; and he also declared for six pounds Debt more that he ought him.

Vpon this Declaration the Defendant demurred, supposing it to be no Consideration; for the Infant was not bound by his per­mission, but might Sue him notwithstanding; and then the promise to pay six pounds Debt was not good, because not declared how indebted. But the Court gave Iudgment for the Plaintiff.

Sir Henry Frederick Thynne versus Sir James Thynne.

PAsch. 13 Car. 2. B.R. Rot. 448. Vpon a Special Issue directed out of Chancery, the Case was thus, One was seized in Tayl of the Mannor of B. and of two Closes, which in reality were not part, [Page 52] but reputed part thereof, and suffered a Recovery only of the Mannor with the Appurtenances; and whether the Recovery was a Bar as to the two Closes, was the Question. And in the 16 year of this King, it was resolved by all the Court, and Hide Chief Justice delivered the Opinion of the Court, That the Lands reputed parcel of the Mannor should pass, by reason of the Deed of Covenants to lead the uses, which explained the intent, Dier 223. 1 Cro. Sir George Symond's Case, Hob. 177. Dier 376. Long 5 to E. 4. 303. 6 Co. Sir Moyle Fynch's Case. Modern Rep. 250.

Wilbraham versus Snow.

IN an Action of Trover the Plaintiff declares, That he was Owner and possessed of certain Goods, and sets them forth particularly, and that they came to the Defendants Hands, who converted them, &c. The Defendant pleaded Not guilty, and the Jury find this Special Verdict.

That the Plaintiff was Sheriff, and that he took the Goods into his Possession by force of a Fieri facias; and that the De­fendant (who was also Defendant in the Execution) took them away. And then they demand the Iudgment of the Court, if the Plaintiff could maintain this Action.

It was said that he might, Because he was answerable over to the Plaintiff in the Execution at whose Suit he took them; and could not return that they were taken away: And if he re­turns, that he hath taken Goods sufficient, and after looses them, he is bound to answer the value as returned. A Bailée of Goods shall bring Trespass, quare bona sua cepit; And Rolls 5. a Carrier from whom Goods are taken may bring Trover. But it was argued on the other side, That the property is in the Defendant, notwithstanding the seizure, Dier 99. a. and Yelverton 44. And the Sheriff had but an Authority in Law to Sell, as Commissioners of Bankrupt have of the Estate of the Bankrupt per 13 Eliz. 7. or Executors upon a Devise, that they shall Sell Land, &c. but Trespass he might bring, because of the Possession, but Trover cannot be maintained without property.

[Page 53]But the Court held that the Action was maintainable; And that the reason was the same, as in the Case of the Carrier; and also held that the Defendants Property ceased by the Seisure: And also, that if a Man becomes a Bankrupt after that the Commissioners have granted over his Goods, he cannot meddle with them, 1 Cro. 106. So by the Opinion of Keeling, Rainsford and Moreton, haesitante Twisden, Iudgment was given for the Plaintiff.

Gavell and his Wife versus Burket.

AN Action was brought for these Words spoken of the Wife, You are a Pimp, and a Bawd, and fetch young Gentle­women to young Gentlemen, and Declared of a Special Damage. The Jury gave a Special Verdict, and found the Words spoken; but not the Damage, as the Plaintiff had Declared. Now, whether the Words were Actionable of themselves, was the Que­stion.

And it was Agreed, that no Action would lye for calling one Bawd or Pimp, 1 Cro. 286 Dimock's Case, Rolls 44. pl. 10. But to say one keeps a Bawdy-house, it will lye, 27 H. 8. 14. an Indictment lies for Keeping of a Bawdy-House, because it is a Common Nusance; but here the subsequent words expound in what sense the former words should be taken, that is, To bring Gentlewomen to Gentlemen for Bawdry, which is as much as keeping a Bawdy-house; and 1 Cro. was cited where Judgment, was given for these words, Thou keepest a House worse than a Bawdy-house, and keepest a Whore in thy House. And in 3 H. 7. it is said, that Constables ought to apprehend Bawds.

But the Court inclined, that the Action would not lye; for a Bawd was not punishable in our Law, unless for Keeping of a Bawdy-House, it being a Crime of Ecclesiastical Conusans. Sed Adjornatur.

Thomlinson versus Hunter.

TRespass, Quare clausum fregit & arbores succidit ad valentiam decem librarum. 5 Co. Play­er's Case. To which the Defendant Demurred gener­ally. The Plaintiff prayed Judgment for Breaking of his Close; but as to the other, the Declaration was Insufficient, because not expressed what kind of Trees.

Anonymus.

A Writ of Error was brought upon a Judgment given in Ireland. It was held that a Day ought to be given by Rule of Court to the Plaintiff, to assign his Errors, or else to Nonsuit him;Dyer 76. b. for the Defendant could have no Scire facias into Ireland.

Leech versus Widsley.

IN an Action of Trespass for Chasing of his Sheep, and Im­pounding of them, and there detaining of them until he gave him 12 d per quod one of the Sheep died. The Defendant pleads, that J.S. was seised in Fee of the place Where, and that the Sheep were there Damage feasant, and that he by the Command of J. S. leniter chaceavit eas, and Impounded them until he gave him satis­faction, quae est eadem Transgressio. The Plaintiff in his Replica­tion entitles himself to Common there. The Defendant Rejoyns, and says, that the place Where was parcel of a great Waste, wherein the Plaintiff had Common appurtenant, and that the Lord Inclosed the place Where, and that the Plaintiff had tempore quo, &c. & semper postea, sufficient Common for all his Sheep levant and couchant. To which the Plaintiff Demurs,

First, For that the Bar was Insufficient; for the Plaintiff chargeth him with detaining them until he paid him a Shilling; and he pleads, that he detained them until he gave him satisfa­ction; sed non allocatur.

Vid. 3 Cro. 384. Hill and Pride­aux's Case; but here the Plain­tiff hath waived that Advantage by plead­ing over.Again, He doth not answer to the killing of the Sheep; sed non allocatur; for he pleads leniter chaceavit; so that if the Sheep did dye he is not answerable; neither doth the Plaintiff declare of any extraordinary Chasing; but alledges the dying of the Sheep only in aggravation of the Damages, coming after the Per quod, and that is not traversable: As in an Action for Beating of his Servant, per quod servitium amisit, the loss of the Service cannot be traversed.

But that which was most insisted on was what he alledges in his Rejoynder, (viz.) That the Plaintiff had Common sufficient left him for his Sheep levant and couchant upon the Tenements Whereas he ought to have said, Sufficient ad tenementa praedicta. For it may be the Ground was understocked. Also, 'tis not set forth, that he had free Egress and Regress; the Words of the Statute of Merton are, Tantam pasturam habeant quantum sufficit ad tenementa sua, & quod habeant liberum ingressum; sed non allocatur, for his Sheep levant and couchant, is intended as many as the Land will maintain, and if there were no Egress or Re­gress, it ought to come on the other side. So Judgment was given for the Defendant, nisi causa.

Anonymus.

AN Infant Executor brings an Action. It was said by Twis­den, That it had been Adjudged, that he ought to sue by Guardian.

Ely versus Ward.

IN a Writ of Error to Reverse a Judgment given in the Court at Hull; upon an Assumpsit the Plaintiff declared, That it was Agreed between them at a place infra Jurisdictionem Curiae, That upon Request, &c. and that he Requested him at a place infra Juris­dictionem Curiae.

It was assigned for Error, That this Action ought not to have been brought in Hull, because the Request was not appointed to be made within the Iurisdiction by Agreement. Sed non allocatur, As long as the Agreement and Request were made there, tho' the Request might have been elsewhere.

Another Error was assigned, in that the Precept to the Serjeant at Mace for Returning of the Jury was, Probos & legales homines qui null affinitat', &c. attingen', whereas the Form of the Venire is, attingunt. Sed non allocatur: For it was held to be as well. Tho' Twisden said, The Form of a Writ ought not to be altered into another Expression of the same signification.

Then the Entry was, Ad quem diem venerunt the Plaintiff and Defendant, & Juratores; and it should have been, Veniunt; sed his non obstantibus the Judgment was affirmed.

Anonymus.

IT was held, That if the Sheriff Returns a Cepi Corpus upon a Capias, altho' he hath not his Body in Court at the day of the Return, yet no Action can be brought against him, but he is to be amerced for it at the Common Law. One so taken could not be Bailed, but by a Homine Replegiando; and now the Statute of the 23th of H. 6. obliges the Sheriff to take Bail, however the Return is as at the Common Law, Cepi Corpus.

Freeman versus Barnes.

TRin. 20 Car. 2. Rot. 554. Error to Reverse a Judgment given in Communi Banco in an Ejectment; where, upon Not Guilty pleaded, the Jury found a Special Verdict to this effect: Tenant in Fee makes a Lease for an hundred years, in Trust for himself, to wait upon the Inheritance; the Lessee enters, Cestuy que Trust enters and takes the Profits, and makes several Leases, all which being expired, he makes a Lease for 54 years, and for the corroborating of it Levies a Fine with Proclamations; the Lessee enters, 5 years pass. And Tyrrel and Archer (they being the only Judges in the Common Plea then) gave Iudgment, That the Fine should bar the Lessee for an hundred years. Vpon which a Writ of Error was [Page 56] brought in this Court, and Argued this Term by Levins for the Plaintiff in the Writ of Error; and Finch, Solicitor for the Defen­dant.

And for the Reversing of the Judgment, Levins Argued, That this Lease by the Cestuy que Trust, and the Entry of his Lessee, did not dispossess the former Lessee; and then the Fine and Non-claim could not prejudice his Interest, which was not put to a right: For first, the Cestuy que Trust was at least Tenant at Will. So is Littleton, Sect. 464. Cestuy que Use may enter, and hold at the Will of his Feoffees; then his Lease can be no Disseisin, be­cause the Inheritance was in himself. 'Tis true, in some Cases a man may do an Act which shall divest his own Estate: As if a Stranger disseises Tenant for Life to the use of him in the Rever­sion, and he assents, Co. Lit. 180. b. the Law shall not construe a Dissei­sin against the parties Intention, Rolls 661. He that enters by colour of a void Lease is no Disseisor, 1 Cro. 188. nor any one that enters by Consent, 15 E. 4. 5. b. Neither shall the Interest of the Lessee be divested but at his Election; for this Lease works in point of Contract, and not so violently upon other mens Interests as Livery doth. In Latche's Rep. 75. Sir Thomas Fisher's Case, Tenant for years lets at Will, the Lessee makes a Lease for years; this works no dispossession. If a Copyholder makes a Lease for years without Licence, the Entry of the Lessee is no Disseisin to the Lord, and he may chuse whether he will take it as a Forfeiture, Rolls 830. Lease for years, upon Condition to be void upon Non­payment of Rent, a demand is made, the Lessor may make a new Lease of the Land, the former Lessee being still in possession. And Blunden and Baugh's Case was cited in 1 Cro. to the same purpose; and that a Fine doth not bar an Interest which is not divested. He quoted also the 1 Inst. 388. 9 Co. 106. and 5 Co. Saffin's Case, where a Fine and Non claim shall bar the Interest of a Term; yet it appears in 2 Cro. 60. that two Judges were against that Iudgment given by the other three, 2 Cro. 659. Tenant at Will makes a Lease for years, and it was held to be no Disseisin volens nolens to him that had the Inheritance. And for Isham and Morris's Case, 1 Cro. 74. it was the Judges Opinion upon Evi­dence, and there a Fine was levied of the Inheritance, which passed the Trust inclusively; but this Fine was only to establish an Interest for 54 years. Then he Argued, that the Inconvenience would be very great to Purchasers, who often keep such Leases and Interests on Foot, tho' they buy the Inheritance, if they should be all barred by Levying of the Fine.

The Solicitor è contra, He agreed that a Fine could not bar any Interest, which was not divested at the time of the Fine. He Ar­gued first, That the Cestuy que Trust was not Tenant at Will; for a man shall not be Tenant at Will against his own Conveyance, [Page 57] unless by Construction of Law, to avoid a Tort; as in Littleton's Case, where the Cestuy que Use enters upon his Feoffee. But tho' the Lessor hath a right to the possession before the Entry of his Lessee for years; yet when the Lessee Enters, as 'tis found in out Case, he doth as much as declare, that Cestuy que Trust shall not be Tenant at Will. Indeed the Bargainee of an Estate for years, is in actual possession by force of the Statute; yet the Bargainor (in case of a Mortgage) may Enter to hold at Will, because there was no Act done to express his dissent. He agreed also, that no Disseisin was wrought; but there may be an Expulsion without a Disseisin, as Hob. 322. where it is said, If the Lessor puts out his Lessee for years, there is no Disseisin committed; and yet the Lessee hath lost his Estate, and hath but a Right to it, and that whether he will or no: And if he were Tenant at Will, he by making this, and divers Leases before, hath absolutely determined his Will; if Tenant at Will be ousted by a Stranger, and he in Reversion disseised he may enter again; not where he is the Wrong-doer himself, for that were to make him Tenant at Will against his Will. If Tenant at Will makes a Lease for years, and the Lessee enters, the Tenant at Will is the Disseisor, 2 Cro. 660. 3 Cro. 830 5. E. 42. and Tenant at Will is intrusted with and hath power over the possession. And where it was said, it should be in the Election of the Lessee for 100 years, to take this for an Eject­ment or no, he Argued that it ought clearly to be in the Election of the Lessor.

For, first, it was his own act, and therefore he could best explain quo animo hoc fecit, and that his antecedent Acts had sufficiently done, especially being Cestuy que Trust, and having also the Inhe­ritance in him; and he insisted very much upon the Notice that the Law takes of such an Interest, tho' relievable only in Equity, 7 H. 5. 3. Cestuy que Use of a Mannor, to which an Advowson was appendant, was Outlawed, the Church became void; the King brought a Quare Impedit, 2 Cro. 512. A Trust of a Chattel, resolved to be forfeit by Attainder, Hob. 214. in that case the King shall have the Land it self, and Process shall issue out of the Ex­chequer to seize the Land it self, which shews that it hath a legal influence upon the Land; therefore, he and not the Trustee, ought to have the Election. If Cestuy que Use had made a Lease for years, this had been a Disseisin, until 1 R. 3 5 H. 7. 56. 8 H. 7. 8. A Lease of two Acres, habendum the one for Life, that other in Fee, to the use of another; shall not the Cestuy que Use determine in which the Inheritance shall be: Again, It is agreed that this Fine conveys away the Trust; shall the Law strain to save the Interest of the Trustee, to occasion a Chancery Suit? And the Judges ever Expounded the Statute of 4 H. 7. strictly, to bind the Right of Strangers, Leonard 99. It was the Chief Baron Man­wood's [Page 58] Opinion, That he that had a future Interest to Lands, of which a Fine was Levied, ought to have five years after his Interest came in esse, neither is there any reason to favour long Leases. By the Ancient Law, a Lease for above 40 years was void, Mirror 164, 293. 1st Inst. 46. they are never without suspicion of Fraud: and 3 Co. Twyne's Case, that which is called a Trust, is in plain English a Fraud; and as this is found, it appears by the Circumstances to be almost Fraud apparent. And as to the Inconvenience which was alledged would come to Purchasors, who desire to keep Leases on foot, he Answered, That might be pre­vented by claiming within five years; and it would be mischievous to Purchasors if it were otherwise, to have such Leases set up against their Titles. Postea.

Note, One makes a Lease, wherein the Lessee Covenants to Repair, and then bargains and sells part of the Reversion; He shall have an Action of Covenant per 32 H. 8.

Bosvile versus Coates.

IN Debt upon a Bond with Condition, That the Obligor should bring in the Son and Daughter of J.S. at their full Age, to give such Releases as a Third person shall require. The Defendant pleads, That the Son is alive under Age at Doncaster. To which the Plaintiff demurs, and held he might; for it must be taken at their respective Ages. Vid. 5 Co. Justice Wyndham's Case.

Crispe and Jackson versus The Mayor and Commonalty of Berwick.

IN a Writ of Covenant, the Plaintiffs declared upon an Indenture of Demise of an House from the Defendants, wherein they Co­venanted, That the Plaintiffs should enjoy it without the Interrup­tion of any Persons whatsoever; and assigned for Breach, That J. S. entred and dispossessed them at Berwick. Vpon which the Defendant takes Issue. Whereupon the Plaintiff suggests, That such a place in Northumberland is the next to Berwick; and the Venire is awarded to the Sherriff accordingly, and a Verdict was found for the Plaintiff.

It was moved by Jones in Arrest of Judgment, That here was a Mis-Trial, not aided by any Statute; for the last Act, which is the largest, remedies all Trials, so as they be in the proper County; but this is not so: And he said, It ought to have been tried where the Action was laid. As when an Action is brought upon a Chartr-Party, and a Breach is assigned in a Foreign Kingdom, it shall be Tried where the Charter-Party is dated; and here the [Page 59] Covenant bore Date at the Castle of York, and there the Trial ought to have been, 6 Co. Dowdale's Case; and Berwick is part of Scotland, and bound by our Acts of Parliament, because Con­quered in Edward the Fourth's time: But the course is to name it expresly, because 'tis out of the Realm, and not like to Wales, where the Trials in such Cases shall be out of the prochein County, 19 Hen. 6.12. for that is a Member of England: Vid. 7 Co. Calvin's Case. But two Presidents being shewn, where the Trials were as it is here, and one of them affirmed in a Writ of Error; also the Case in Rolls tit. Trial, 597. A Writ of Error was brought to Reverse a Judgment given in Ireland, and an Error in Fact was assigned and tryed in a County next to Ireland: The Court Ruled the Venire to be well awarded.

Twisden said, The Reason why an Ejectment would not lye of Lands in Jamaica, or any of the Kings foreign Territories, was, Because the Courts here could not command them to do Execution there; for they have no Sheriffs.

This Case having remained two or three Terms since the Postea was Returned, and no Continuances Entred, one of the Plaintiffs died, and it was doubted whether Judgment could be now Entred: And the Secondary said, That they did Enter up Judgments two Terms after the Day in Bank, as at the Day in Bank, without any Continuances. And of this Matter the Court would be Advised. Postea.

Anonymus.

IF one, upon Complaint to two Justices, 1 Cro. Pri­geon's Case. be Ordered to keep a Bastard Child, and this upon an Appeal to the Sessions is revoked, that Person is absolutely discharged; and unless a Father can be found, the Court said, the Justices of Peace must keep it themselves.

The Earl of Peterborough versus Sir John Mordant.

IN an Action upon the Statute de Scandalis Magnatum, for speaking these Words of the Plaintiff, I do not know but my Lord of Peterborough sent Gybbs to take my Purse. After Judgment, by Default, and a Writ of Enquiry of Damages returned, it was moved in Arrest of Judgment, that no Action would lye for these Words.

First, He doth not positively charge him with it.

Again, The Words do not import a Felonious taking, Hob. 326. Mason's Case, I charge him with Felony, for taking Money out of the Pocket of H. Stacie; adjudged not Actionable. And in 1 Cro. 312. Thou didst set upon me and take my Purse; go before a Justice and I will charge you with Felony. It was held there that no Action would lye.

[Page 60]But the Court gave Iudgment for the Plaintiff. As to the first, it was held as much as a direct Affirmation; for otherwise one might slander another, and by such a slight Evasion escape an Action.

Twisden said, He knew these Words adjudged Actionable, He hides himself for Debt, and for ought I know is a Bank­rupt.

And for the Words the Court said, Three was difference between an Action grounded upon the Statute de Scandalis Magnatum, and a Common Action of Slander. The Chief Justice said, The Words in the one case shall be taken in mitiori sensu, and in the other in the worst sense against the Speaker, that the Honour of such Great Persons may be preserved. More 55. The Earl of Leicester had Judgment for these words, My Lord of Leicester is a Cruel Man, an Oppressor, and an Enemy to Reformation, Leon. 33. The Lord Abergavenny sued for these words, My Lord Abergavenny sent for us, and put some of us into the Stocks, some to the Coal­house, and some to the Prison in his House called Little Ease. And Recovered. Vide Crompton's Jurisdiction of Courts, 13. and Leonard, 336.

Anonymus.

AN Indictment was, Compertum fuit per Sacramentum duo­decim proborum & legalium hominum, &c. and quashed, be­cause it was not jurat' & onerat'. And the Clerk of the Crown-Office Informed the Court, that that was always the Course; also it must be, Adtunc & ibidem jurat', where the Caption is recited to be taken.

Williams versus Gwyn.

ERror to Reverse a Judgment given in Dower in the Grand Sessions in Wales. It appeared by the Record, that the Tenant appeared upon the Summons Returned, and Day was given over, & adtunc venit per Attornatum & nihil dicit in barram: Where­upon, Consideratum est quod tertia pars terr' & tenemen' capiatur in man' Domini Regis, and Day was given ad audiend' Judicium; at which Day Iudgment was given quod recuperet.

It was Assigned for Error, that the Court here had awarded a Petit Cape, and yet the Defendant appeared, whereas they should have given Iudgment upon the Nient dedire; for a Petit Cape is always upon default after appearance, and only to answer the Default: The Grand Cape is before appearance, to answer the Default and the Demand, Vet. N. B. 97. So it was said, the Court had erred in Judgment; and tho' it were in advantage of the Tenant by the delay, yet not being by his Prier as an Essoign granted, where none ought to be, is not Error, but the act of the [Page 61] Court, as if they should Enter a Misericordia for a Capiatur, it were Erroneous.

But the Court answered, That the reason of that was, Be­cause it is parcel of the Judgment, and the King should lose his Fine; But this was only the awarding of Process more than should be, and in advantage of the Tenant, wherefore they resolved that they could not Reverse it for Error. And Twisden said, Admit­ting it were Erroneous, they might then give Iudgment in this Court.

Anonymus.

A Prohibition was prayed to the Arches for Libelling against one there, for calling Whore and Baud, because they were but words of Heat; also the Party lived in the Diocess of London, so a­gainst 23 H. 8. to Cite him there. But the Court would not grant it; for though formerly there hath been divers Opinions touch­ing these words, yet Twisden said ever since 8 Car. the Law hath been taken, that they may punish such words, pro reformatione morum. And for the other, it appeared Sentence was given, and that it was too late to pray a Prohibition, when it appears they have Iurisdiction of the Cause, as the Superiour Court; and he that would have the benefit of the Statute against citing out of the Diocess, must come before Sentence, 1 Cro.

Anonymus.

FInch Solicitor, moved for a Prohibition to the Ecclesiastical Court, to stay a Suit for Tythes of Hopps, commenced there by the Vicar, upon a Suggestion, that they had paid for all Tythe Hopps so much an Acre to the Parson, time out of mind. But it was denied; for there could be no such Composition time out of mind, Hopps not being known in England until Queen Elizabeths time; for then they were first brought out of Holland, though Beer is mentioned in a Statute in Henry the Fourth's time.

But it was said by the Court, That perhaps the Vicaridge was Endowed time out of mind of the small Tythes, of which nature Hopps were. Then the prescription of paying of Modus to the Parson, shall not take them from him; for it shall be taken to have commenced since the Endowment.

Note, If the Matter concerns the whole County, it is to be Tryed in another County which is indifferent.

Hall versus Philips.

AN Information was brought for the forfeiture of a certain quantity of Brandy, and sets forth the two Acts, 13 & 14 Car. 2. c. 23 and 24. of Excise upon that and other Liquors, and then the addi­tional Act of 15 Car. cap. 11. wherein it is Enacted, That no Foreign imported excisable Liquours shall be Landed, &c. before due Entry be first made thereof, &c. or before the Duty of Excise due and payable for the same be fully satisfied and paid; and that every Warrant for the Landing or Delivery of any such Foreign Liquors, shall be Signed by the Hand of the said Officer, &c. upon pain that all such Foreign Li­quors as shall be landed, &c. contrary to the true intent and mean­ing thereof, or without the presence of an Officer or Wayter for the Excise, or the value thereof, shall be forfeited and lost, the one Moiety to the King, the other to him which shall seize, inform, &c. And avers that this Brandy was Landed, the Duty not fully sa­tisfied and paid, and without the presence of an Officer or Way­ter for the Excise; but doth not aver, that a due Entry was not first made thereof,

Whereupon it was moved, after a Verdict for the Informer, in Arrest of Judgment; that if either the Duty were paid, or Entry made, or the Landing were in the presence of an Officer, it satis­fied the Act, which is in the Disjunctive, and, or shall not be taken Conjunctive, unless the words are of like nature, as 1 Mar. cap. 3. Maliciously or Contemptuously disturb Preachers; especially in a Penal Law. Besides, if the Act required these three things should be done, then payment would not suffice, without the presence of an Officer at the Landing; the like words are taken Disjunctive­ly in Renigers Case, Pl. Com.

But it was said on the other side, That the word or, must be taken here in the Conjunctive, and that for the apparent inconve­nience that would follow; and that the Statute intended all thrée should be performed, and that an Entry should not suffice without payment, or agreement with the Officer, which Tantamounts: For otherwise, this Act which was made to be further remedial to the King, would rather disappoint this Revenue of Excise given by former Acts, which did also require an Entry to be made; but this Act adds the Penalty for Non-entry, and this Entry is to be made for a check upon the Officer, that he accounts right to the King. 2 Cro. 322. Also it appoints Landing in the presence of the Officer, that it may be observed whether more be Landed than is contained in the Warrant for Landing; but never meant that Entry should suffice without payment; for so if Party be a Foreigner or In­solvent, the King loseth his Duty.

[Page 63]And the Court gave Iudgment for the Informer: But said they would have staied until the next Term, but that great mischief might be done in the interim, if it should be known that such a doubt sticks here; and they would not give any incouragement to the lessening of the Kings Revenue.

Anonymus.

IN an Indictment upon the Act, for coming within five Miles of a Corporation.

It was moved, that no Indictment lay upon it, because the Act appoints a Penalty of 40 l to be recovered by Action of Debt, Bill, Plaint or Information.

Sed non allocatur, For when a Statute makes an Offence, the King may punish it by Indictment; but an Information will not lye, when a Statute doth barely prohibit a thing, vid. 2 Cro. 643. 3 Cro. 544.

Note, It was resolved at Serjeants Inn, That when a Penalty is to be divided, (viz.) To the King, the Poor and the Informer. If the King along Sue, so that there is no Informer, yet the Poor shall have their part.

Adrian Lampereve and other Frenchmens Case.

A Motion was made by the Solicitor, upon a Special Di­rection from the King, in behalf of the said Lampereve and others Frenchmen, to have a Certiorari to Bedford Gaol, where they were committed for Robbery.

Keeling Chief Justice, I lately attended his Majesty about this matter, and I thought he had been satisfied with what I then said and now repeat, (viz.) That if we should remove them now, we should discharge his Majesties Justice; for there is no Indictment found, and none can be found but at Bedford, and the Prosecutors and Witnesses are there; but he might have it Tryed at the Bar if he pleased, so the only way is to let them stay at Bedford till the Assizes; and then if Prosecutors appear not, or an Ignoramus be found, they will be discharged by Proclamation; and if the In­dictment be found, then the Judge may take a new Recognizance of the Prosecutors to appear and Prosecute here; and you may have a Certiorari now to deliver there, or you may have it there from my Brother Rainsford, who goes that Circuit, to remove all up hither.

Sollicitor. I suppose this will satisfie.

Curia. We must acquit our selves of the Kings Justice.

[Page 64]In Easter Term following they were brought up hither, and be­ing Arraigned upon the Indictment, they pleaded Not guilty; and some of them desired to be Bailed, and the Court said they might, but it must be done in the Court, because the Bail must be bound Body for Body; and they required 4 Men to be Bail, each worth 300 l Body for Body, and in no sum certain.

They were afterwards Tryed per medierat' linguae, and some of the Aliens were not Frenchmen, and most of them dwelt in Mid­dlesex.

Lady Baltinglass's Case.

THe Court denied a Tryal at the Barr, because the Costs were not paid upon other Tryals, which went against her in o­ther Courts; which the Court here would take notice of.

Articles were exhibited against a Register of an Ecclesiastical Court, for Misdemeanours done by him in his Office.

He moved for a Prohibition; but it would not be granted, un­less they examin him concerning the Articles upon his Oath.

Wright and Johnson.

Assmpsit, To deliver a Gelding in as good plight as he bor­rowed him; and Avers, that he did not deliver him at all. A Verdict was had for the Plaintiff yet; Iudgment was given against him, because the Breach was not laid as the Promise is.

Playters versus Sheering.

IN a Replevin (removed by Recordari,) There was a Non-suit for want of a Declaration, and thereupon the Defendant made a Sug­gestion, and took out a Writ of Enquiry upon 17 Car. 2. cap. 7. The Plaintiff moved that this might be set aside, because the Non-suit hapened, through the sudden Sickness of the person emploied to Prosecute.

Curia, This new Statute having taken away the Writ of Second Deliverance, hath made the Plaintiff remediless, unless we help him; therefore we will endeavour it as far as we can. Let the Defendant shew Cause, why he should not accept of a Declaration upon payment of Costs.

Anonymus.

IF there be several Contracts between A. and B. at several times, for several sums,Prohibition each sum under 40 s and they do all amount to a sum sufficient to Entitle the Superiour Court; they shall be there put in Suit, and not in a Court which is not of Record. And so it was resolved in the Case of the Savoy Court, and Stanford 24. C. 2. Also it was said, That if a Man at divers times Steals things, all which amount to above 12d 'tis Felony Capital.

In an Account after a Quod computet, the Court Assigns Auditors, and they sit upon and return the Account when they will; for day is not given them, and they give the Parties in the interim what time they please; but if the Defendant de­lays, they return it to the Court, and Process goes out against him.

Nota, Memorandum, On Tuesday April the 26th, Steven Mos­del, to whom Mr. Lenthal had granted the Office of Marshal of the Kings-Bench for life, was sworn Marshal. The Oath was this, (Viz.) You shall swear, that during the time of your being Marshal, you shall well and truly use, exercise, and behave your self in the said Office; you shall encrease no Fees, and in all things shall do your Duty in the said Office, &c.

It was resolved, That the said Stephen Mosdel could not after­wards practise as an Attorney of this Court; and that Mr. Len­thall Marshall in Reversion had no Priviledge.

Anonymus.

A Promise was made to give 1000 l to one for curing of his Eyes; and an Assumpsit is brought.

Vpon this, the Jury may give less than 1000 l Damages, if they think fit.

Sir W. Mewes versus Mewes.

A Title of Land was tryed out of the proper County, upon a feigned Wager, Whether well conveyed or no, (this is the Course of Issues directed out of Chancery.)

Note, In this Case a Bill in Chancery was given in Evidence against the Complainant, though held to be but of slight moment.

Smiths Case.

SMith and other Commissioners of Sewers which sate at White-Chappel, were brought in upon an Attachment awarded against them, for a Contempt of this Court. And the Case was thus.

A Certiorari was lately sent and delivered to them out of this Court, (upon Special direction and recommendation by the King and Council, before whom the Business had been agitated) to re­move hither Certain Orders and Proceedings of theirs, in order to a Tryal of the Right of the Matter in Question.

At first they did not allow the Certiorari, but afterwards having allowed it, they proceeded de novo upon the same Matter; and made an Order again, which certain persons (being the same per­sons who procured the Certiorari,) refusing to obey, the Commis­sioners fined them 10 l apiece.

Then a second Certiorari was taken out and delivered to them; after which they imprisoned persons for not executing and obeying of a Warrant made upon their second Order, and for speaking Con­temptuous words of the Commissioners, and fined them 5 l apiece. Being now questioned by the Court, concerning these Contempts and Misdemeanours, They said, they did this wholly by the ad­vice of their Counsel Mr. Ofley, (who being in Court received a severe Reprimand therefore;) and the Commissioners were com­mitted to Prison.

About the Fortnight afterwards, having made and Filed their Return, they were brought into Court, to receive the Sentence of the Court. And then it was said by them and Coleman their Coun­sel; that they would not urge any thing in justification of their not returning their Proceedings, they only offered, that what they did was by the advice of their Counsel; and that the Clause in 13 Eliz. cap. 9. was so penned as to give a great occasion of doubt in this particular, which Clause upon their desire was read; And is this,

And be it further Enacted, &c. That from henceforth the said Commissioners of Sewers, nor any of them shall not be compelled, [Page 67] or compellable to make any Certificate, or Return of the said Com­missioners, or any of them, or of any of the Ordinances, Laws or do­ings, by the Authority of any of the said Commissions, nor shall not have any Fine, Pain or Amerciament set upon them, or any of them, or any ways to be molested in Body, Lands, or Goods for that Cause, and after the reading thereof, the Court delivered themselves seriatim, as followeth,

Moreton. This is a great Offence and Contempt; The Com­missioners of Sewers and their Proceedings are subject to the Juris­diction of this Court. Sir Henry Mildmayes Case, 2 Cro. 336. and Sir H. Hungates in our Memory: If Commissioners of Sewers, or any other inferiour Jurisdiction excéed their Commission, we may reform and restrain them, and it; nay we prohibit them in Cases where They have no Jurisdiction of the matter: Many presidents are with us in the present Case. And we cannot answer our Duty to the King, without taking notice of and punishing this Offence. Therefore my Opinion is, That for their not obeying of the first Writ, they be fined 40 Marks apiece, and for their not obey­ing of the second Writ 20 Marks apiece.

Rainsford: This is indisputably an Offence and Contempt; and the greater for that it was seconded. It is aggravated too; in that the Commissioners proceeded after they had allowed the Certiorari, and that they fell upon, and shewed their Indignation against those persons, who only pursued the Kings Authority; and that this was in a Case, which was recommended by the King and Council, to which Recommendation the Commissioners were Privy; they had contrary advice from other Counsel then there, but they would hearken to that advice which pleased them best: Obedience is that Ligament of the Government, without which all will be turned into Anarchy and Confusion. Without betraying the Trust reposed in us by the King, and violating of our Oaths, we cannot omit to punish this, therefore I agree the Fines: The Rea­son of the Fines, is the disobeying of the Writs; the Reason of their disproportion, is to resemble the Measures the Commissioners obser­ved towards those persons whom they unduly fined.

Twisden. It was resolved in 23 Car. That this Statute hath no reference to this Court, and that this Clause extends only to Cer­tificates and Returns into Chancery; the Statute speaks of Super­sedeas, &c. which issue out of the Court of Chancery only; for this Court does not, nor ever did send out Supersedeas's, but this Court sends out Certiorari's, which are to bring the business before the King here, and the words of them are, quia coram nobis terminari volumus & non alibi. What should move that Gentleman to give such advice (as he did) I cannot imagin: I suppose there is more in the matter than we know, and 'tis a strange thing, that these Commissioners should ask Counsel, whether they should obey the Kings [Page 68] Writ or no? Especially when it went out upon such particular direction and recommendation. 'Tis some mitigation, that they had such advice of Counsel; otherwise, I should not stick to fine them 100 l apiece. We are bound to take care of the support of the Government. I agree the Fines.

Keeling Chief Justice. It is provided by 23 H. 8. cap. 5. that the Laws, Acts, &c. to be made by the Commissioners of Sewers, should stand good and effectual, &c. no longer than the Commission en­dured, except they were Engrossed in Parchment, and certified un­der their Seals, into the Kings Court of Chancery; and then the Kings Royal Assent to be had to the same, &c. But that was alter­ed by this of 13 Eliz. whereby it is Enacted, That their Laws, &c. should stand and continue in force, without any such Certificate to be made thereof into the Chancery; and then a little after in this Statute follows the Clause which hath been read, and that refers wholly to Certificates, or Returns to be made into the Chancery, for the purpose aforementioned. 'Tis plain, the Clause refers not to this Court, for it speaks of returning their Comissions; now their Commissions were never returnable into this Court; this Court cannot be ousted of its Jurisdiction without special words; here is the last Appeal, the King himself sits here, and that in person if the pleases, and its Predecessors have so done; and the King ought to have an account of what is done below in inferiour Jurisdicti­ons. 'Tis for the avoiding of oppressions and other mischiefs. To deny and oppose this, and to set up uncontrolable Jurisdictions below, tends manifestly to a Commonwealth; and we ought, and we shall take care that there be no such thing in ours days. I know there is a great clamour, so soon as an inferiour Jurisdiction is touched; and tis thought we deal hardly with them: But unless we will suffer this Court to be dissolved, and the Prerogative of the King to be encroached upon, we must oppose our selves to these Proceedings.

I have a great respect for these persons the Commissioners, but 'tis but usque ad aras. When the Jurisdiction of the Crown, the Justice of the Kingdom, and the Duty of my place is concerned, I ought not to spare my best Friends. Some Presidents have been cited in this Case, and many more might; there are two memora­ble Records cited, 1 Cro. concerning persons which contemned the Kings Writ and their Penalties. I agree the Fines, and here­by we do not go so high as our Predessours have gone Hundreds of years ago.

Nota, This Proceeding and Sentence of the Court, was upon Confession of the Commissioners; the Court forthwith making an Entry and Record of their Confession.

[Page 69]In an Assize only, where the Writ is Returnable into this Court, it is apud Westmonaster'; but in all other cases, where Writs are Returnable out of Chancery into this Court, they are Returnable Ubicunque, &c.

The King versus Jane D—.

SHe was Indicted for Stealing of several things, and pleading Not Guilty, and a Jury sworn to try her; the Witnesses not appearing, were suspected to be tampered with by the Prisoner; and the Jury were discharged, and the Trial put off. Vid. 1 Inst. 227. b.

Wise's Case.

AN Order of the Justices of the Peace, for the maintenance of a Poor Woman, was Confirmed, tho' it appeared she was able of Body to work: But the Justices of the Peace are Iudges of that.

Cousin's Case.

ERror to Reverse a Fine for Infancy; Now 'twas moved, that the party being in Court she might be inspected, and the Inspection Recorded; and there was produced and read a Copy of the Register Book, sworn to be a true one, and several Affidavits of her Age.

Curia: Let the Inspection be now Recorded; the Issue of her Infancy, may be tryed at any time hereafter, tho' she comes of Age.

Nota, A Prisoner in the Kings-Bench that lyes in the Common Side, pays no Fees for his Lodging.

Anonymus.

IT was said by Twisden, That if two submit to an Award, this contains not a Reciprocal Promise to perform; but there must be an Express Promise to ground an Action upon.

Nota, A Fine which was set two or three Terms since, was this Term set aside, because of some surreptitious Practice and Mis­information to the Judge.

Auberie versus James.

ASsault, Battery and Wounding: The Defendant Iustified; for that he being Master of a Ship, commanded the Plaintiff to do some Service in the Ship, which he refusing to do, he mode­rate castigavit the Plaintiff, prout ei bene licuit.

The Plaintiff maintains his Declaration absque hoc quod moderate castigavit, and Issue was taken thereupon.

Negativum infinitum.After Verdict for the Plaintiff, it was moved in Arrest of Judg­ment that the Issue was not well joyned; for non moderate casti­gavit doth not necessarily imply that he did Beat him at all, and so no direct Traverse to the Defendants Iustification, which immo­derate castigavit would have been: But, De injuria sua propria absque aliqua tali causa would have been the most formal Repli­cation.

But the Justices held, that it would serve as it was, after a Verdict, tho' the Statute at Oxford 16 Car. 2. the last and most aiding Act of Jeofails be (Which was a mi­stake.) expired, and that de injuria sua propria, not adding absque aliqua tali causa, hath been held good after a Verdict.

Green versus Cubit.

ERror to Reverse a Judgment, given in the Court at Norwich, in Debt upon a Bond; where the Plaintiff declared, that the Defendant per scriptum suum Obligatorium, at a certain place there became bound, &c.

The Defendant pleaded, that he was in Prison, & scriptum praedictum was obtained by Duress; which was found against the Defendant, and Judgment given accordingly.

The Errors assigned were first, Because he declares of a Writing Obligatory, and both not say sigillo Defendentis sigillat', 3 Cro. 571. Declaration in Covenant was held Insufficient for the same cause.

Secondly, There is no place where the Defendant alledgeth himself to be in Prison; and being in an Inferiour Court, it shall not have any aid of Intendment.

But the Court Over-ruled the first, because the Plea of the Defendant confesses the Deed; and the second, because the Impri­sonment must of necessity refer to the place where the Plaintiff declares the Bond to be made: For the Defendant pleaded, that he was then in Prison; wherefore they affirmed the Judgment, 3 Cro. 55. 2 Cro. 420. 3 Cro. 737. 19 H. 6. 15. 19.

Baldway and Ouston.

DEbt upon a Bond, the Condition was, That the Defendant should pay such Costs as should be stated by two Arbitra­tors by them chosen.

He pleaded, that none were Stated.

The Plaintiff Replied, That the Defendant did not bring in his Bill.

To which it was Demurred: For tho' if the Defendant were the cause that no Award was made, it was as much a forfeiture of his Bond, as not to perform it would be; yet here there was a precedent act of the Plaintiffs necessary, (viz.) To choose an Arbitrator, which he ought to have shewn before any Fault could be assigned in the Defendant, in not bringing in of his Bill. And to this the Court did not incline: Sed Adjornatur.

Nota, It was said. Tho' every Innkeeper may detain an Horse until he is paid for his Meat, yet he cannot sell him; for that was good only by the Custom of London.

Anonymus.

A Custom was alledged in the City of Norwich, That in regard they maintained a Common Key, for the Unlading of such Goods as were brought up the River in Vessels to the said City, that every Vessel passing through the same River, by the said Key, should pay a certain Sum.

It was held a void Custom as to those Vessels which did not unlade at the said Key, nor any other place in the City; there being no benefit redounding to them from the Maintenance of the Key, they only passing by, and were bound for another place, and therefore could have no Imposition upon them: But if they had Received their Fraight at the said Key, it might extend to them.

And Coleman said, The last Session of Parliament there was Complaint made against the Governour of Gravesend, who would have prescribed to have Two shillings and Six pence of every Boat that passed by the Fort there: And it was held to be Vnreason­able.

Anonymus.

TRover and Conversion for a pair of Curtains and Vallence was held Insufficient, for the uncertainty of what was meant by a Pair in this case.

Bernard versus Bernard.

ERror to Reverse a Judgment in the Court of Hull, upon an Assumpsit, where the Plaintiff declared upon two Promises; the first was upon an Indebitatus infra Jurisdictionem Curiae, for Money lent.

The Error assigned was, That the Loan did not appear to be within the Jurisdiction; but upon view of the Record it was adtunc & ibidem.

The other Promise was, That there being Communication between the Plaintiff and Defendant concerning a House, which was said to be at Hull-Bridge, which the Plaintiff sold him, the Money being unpaid, and the Defendant unable; in Consideration that the Plaintiff would release to him the said Debt, he Promised to deliver him up the Possession of the House by a certain Day. Then he Avers, That tho' he Released him, yet the Defendant had not delivered him up the Possession, licet saepius requisitus.

It was assigned for Error, That the House was not expressed to be within the Jurisdiction; for the performance of the Promise must be as well within the Jurisdiction; as the Promise it self: But it is not material, tho' there be other foreign Circumstances in the Case; as Assumpsit upon a Promise to Re-deliver an Horse at Hull, which the Plaintiff lent the Defendant at Hull, to Ride to Beverly: This that Court had Conusans of, tho' Beverly was out of the Jurisdiction. And tho' the House were alledged to be at Hull-bridge, that shall be intended a Vill by it self, and no part of Hull: And of that Opinion was Twisden; but Keeling otherwise.

Another Error was assigned, That there was no Request laid, which ought to have been, being a Collateral thing, (viz) To deliver up Possession of an House.

Sed non allocatur: For being to be done at a time certain, there was no need of Request; but if no time had been set, he would have had time during his Life, unless hastned by Re­quest.

Another Error assigned was, That the Style of Court was, Placita coram Majore, &c. virture Literarum Patentium, H. 6. yet the issuing out Process, and filing Bail, was Entred secund' con­suetud' Cur': And for this 1 Cro. 143. Long and Nethercote's Case was cited, where the same Matter was held to be Error; for the Court being Erected within time of Memory, could have no Cu­stom to warrant their proceedings. Sed non allocatur: For it is according to Law, and the just Course of their Court.

But Twisden said, If it had been secund' consuerud' Cur' de temps d'ont memorie ne court, it had been Ist.

Girling versus Alders.

IN a Prohibition to the Court of the Honour of Eye, the Case was, One Contracted with another for divers parcels of Malt, the Money to be paid for each parcel being under Forty Shillings, and he levied divers Plaints thereupon in the said Court. Wherefore the Court here granted a Prohibition; because tho' they be several Contracts, yet forasmuch as the Plaintiff might have joyned them all in one Action, he ought so to have done, and Sued here, and not put the Defendant to an unnecessary Vexation, no more than he can split an entire Debt into divers, to give the Inferious Court Jurisdiction in fraudem Legis.

Heskett versus Lee.

PAsch. 21 Car. 2. Rot. 408. Error to Reverse a Common Recovery had in the County Palatine of Lancaster, against an Infant.

The first Error was assigned in a Variance between the Writ and the Count; the Writ was of Lands in Bikerstaffe, and the Count was Bickerstaffe, (5 Rep. 46. Isfeild for Iffeild; but there the Court suffered it to be amended, being the default of the Clerk:) Sed non allocatur, quia idem sonant.

Another Error was assigned in the Entry of the Admission of the Guardian. Which was thus: Concess' est per Cur' quod Johannes Molineaux Armig', sequarur pro Thoma Heskett Armig', ut Guardian' praedict' Thomae in plito terrae versus Lee: Whereas it was said it should have been, ad comparendum & defendendum, and this is ad sequendum, which is a Form proper only for the Demandant, and so is the 2d Cor. 641. And the Reason why Infants are bound by Recoveries when Guardians are assigned them, is, Because if they suffer any Wrong, they have an Action against the Guardian, in whose default it was: Whereas if the Infant should bring an Action in this Case and declare against Molineux, That he was admitted as Guardian, to defend for him; if Issue were taken upon it by this Record, the Tryal would be against him.

Again, It is sequatur pro Thoma ut Guardians, and ut is but similitudinary.

Another Error was assigned in the Entry of the Appearance, which was, praedict' Thomas Heskett per praed' Johannem Molineux qui specialiter admissus est per Cur' ad sequend' pro praedict' Tho' venit in propria persona & defendit jus suum: Where it was said, It must be taken that the Tenant appeared in Person, and not the Guardian, and a Recovery suffered by an Infant where he appears by Attorney, or in proper Person, is Erroneous, Rolls 731. [Page 74] But notwithstanding these Errors the Court affirmed the Reco­very.

For the Admission of the Guardian ad sequend' is proper enough; for it signifies no more than to follow the Cause: And in many Cases the Tenant or Defendant doth Prosecute, as in Voucher, praying Tales, carrying down Trials by Proviso, &c. and in Replevin the Avowant is Actor, and in Suffering of a Recovery the Tenant is the main Agent, being to his use in no other be declared. And it was an Error assigned in the Lord Newport and Mildmay's Case, as appeareth by the Record; yet it seems it was taken to be so plain, as not fit to be insisted on: Wherefore there is nothing of it in the Report of the Case 1 Cro. 224. yet there was all endeavour imaginable used to Reverse that Reco­very; and divers other Presidents there are of the same manner of Entry: And if it can appear to the Court, that there was a Guardian admitted, the Form of the Entry shall not be so severely Examined, as in the 4 Rep. 53. where there was no Entry of any Admission of the Guardian by the Court at all; yet it appearing quod venit per Guardianum, the Court would not Reverse the Judg­ment for Error. And for the Book of the 2 Cro. 641. there were other Reasons which Reversed the Judgment, and the Admission (ad pro­sequendum) was not mentioned, until the Court upon the other Matters had Resolved the Reversal: And the Books there cited do not at all prove it to be Error. And ad sequend' ur Guardianum is not at all amiss; for Ut many times notes an Identity; Seisitus ut de feodo, makes Conusans ut Ballivus, &c. And for the Entry of the Appearance, it may be taken, that the Guardian came in proper Person, and so it ought to be: But if propria persona refers to the Infant, he must have Reversed the Recovery during his Nonage. And so Twisden saith, it hath been resolved in this Court lately. Vid. Roll's 1st Part 171, and 2d Part. 573.

Anonymus.

SCroggs, the King's Serjeant, moved to have at Trial at Bar, in an Indictment of Perjury, and for some further Time, urging that it was the King's Case.

The Chief Justice said, The King was no otherwise concerned in it, than in maintenance of the Common Justice of the Realm: It was usually the Subjects Interest, and His Prosecution, and there­fore must not deviate from the Course in Civil Causes, and not to be resembled with Causes wherein the King is concerned in point of Interest.

Anonymus.

A Prohibition was prayed to stay a Suit for Tythes of Wood. The Plaintiff suggested, That he had a House in the Parish, and that the Wood was cut for Fuel burnt in his House.

But the Court said that this would not serve, unless it were ex­pressed▪ that the House was for maintenance of Husbandry; by reason of which the Parson had Uberiores Decimas.

Barrett versus Milward. & al.

A Scire facias was awarded against the Defendants upon a Re­cognizance, which they entred into as Bail for a Plaintiff in a Writ of Error, that he should prosecute it with effect, or pay the Money if the Judgment were affirmed.

They plead, That he did prosecute it with effect, and that the Judgment was not yet affirmed.

The Plaintiff Replied, Protestando, that they did not Prosecute with effect, Pro placito, that the Judgment was affirmed by the Justices of the Common Bench, and Barons of the Coif, Et hoc paratus est verificare per Recordum. To which the Defendants De­murred generally.

Because it was not alledged, That there were Six Justices and Barons present when the Judgment was affirmed: For 27 Eliz. c. 8. which gives them Authority, requires, that there should be Six at the least.

Sed non allocatur: For the Defendant should then have pleaded Nul tiel Record'; for if there were not Six, their Proceedings were coram non Judice.

Nota, If a Certiorari be not Returned, so that an Alias be awarded, the Return must be as upon the first Writ, and the other must be Returned quod ante adventum istius brevis, the Matter was certified.

Gybbons versus North.

IN an Assumpsit the Plaintiff Declared, That whereas at the Defendants Request he was bound with him in a Bond of 200 l he in Consideratione inde promised to save him harmless, and obliged himself, his Heirs and Executors in 200 l to the perfor­mance of it; and the Money not being paid, the Defendant did not save him harmless: But, per debitum legis processum, he was forced to pay the Money.

[Page 76]The Defendant Demurred, because he did not alledge, That he did not pay him 200 l For obliging of himself in the penalty of 200 l to save him harmless, He hath election either to save him harmless, or pay 200 l

But the Court gave Judgment for the Plaintiff; for there is no Election in this case, being no more than an ordinary Promise to Save harmless: And this Action is brought upon the Plaintiffs Dampnification, which is a Breach, and he doth not demand the 200 l Also a Verbal Contract cannot create a Penalty to oblige the Heir.

Jordan versus Forett.

ERror to Reverse a Judgment given against an Executor in Debt in the Common Pleas, where the Executor pleaded divers Judgments formerly obtained against him; and the last he pleads thus: That one Eliz. H. in eadem Curia implacitasset, &c. and Recovered in Trinity Term, but expresses not in what Year; and there, upon a general Demurrer, Iudgment was given for the Plaintiff, and it was assigned for Error.

That this Incertainty in respect of Time, was good at least upon a general Demurrer.

But the Court affirmed the Judgment: For if such Pleading should be allowed, it would be very inconvenient to the Plaintiff, and very difficult to find out the Record, and then how should he plead that it was kept on foot by Fraud, or such like? But if it had been ascertained when the Plea commenced, tho' no time alledged when the Judgment was obtained, yet that would have been good; for the Continuances would have directed to the finding of it.

Twisden said, That the Course in this Court was a in Scire facias upon a Judgment, to say quod cum recuperasset, without alledging any Time: But in the Common Pleas they set forth the Term.

Putt versus Vincent.

IN Debt for 3900 l the Plaintiff declared upon Articles of Agree­ment, wherein Putt Covenanted to Convey certain Lands to one Nosworthy; and there are also certain Covenants from Nosworthy to the Plaintiff, and from the Defendant Vincent; who after Imparlance pleads, that Nosworthy sealed the Deed, and is still alive.

To which the Plaintiff Demurred.

And it was alledged by Jones, That this being after Impar­lance, could not be pleaded, it being only in Abatement, and that he Commences his Plea Actio non, as if it were a Plea in Bar.

[Page 77]And the Court inclined that it was insufficient for both Causes: But then it was said, It appears by the Deed to which Nosworthy was a party, that the Plaintiff could not sue the Defendant alone, and so of his own shewing he could not have Iudgment. But it was answered, That it did not appear, that Nosworthy ever Seal­ed the Deed. Et Adjournatur, Postra.

Gifford versus Perkins.

IN Debt upon a Bond entred into Eliz. Perkins, who was the Plaintiffs Wife, and he as her Administrator brings this A­ction. The Defendant pleads, That he delivered the Bond to one Eliz. Perkins his Sister, quae obiit sola & innupta, absque hoe that he delivered it to Elizabeth Perkins the Plaintiffs Wife; And to that the Plaintiff Demurres Specially. For if it be taken that there are two of the name, the Defendant should have plead­ed non est factum; for it amounts to no more. Or at least he ought to have induced his Plea, that there were two Elizabeth Perkins. But this Traverse is designed to bring the Marriage in question, which is not to be tried now. Wherefore the Court gave Iudgment for the Plaintiff.

Twisden said, If the Issue be, Whether the Wife of such a Man or no? This is to be tried per Pais: For if she be a Wife de facto, it serves upon the Issue: But Loyalty of Matrimony is to be tried by the Certificate of the Bishop only, 2 Cro. 102.

Dightons Case.

A Mandamus was prayed to the Corporation of Stratford super Avon, to restore Dighton the Town Clerk.

They returned their Letters Patents of Incorporation, whereby they had Authority to Grant the Office of Town Clerk Durante bene placito; and that he was amoved from his Office by the Mayor and Burgesses.

It was said, that here appeared no Cause of amoval upon the Return, which was manifestly needless, having Authority to turn them out at their Pleasure. But Twisden said, It hath béen held, that where any such like Power is to chuse one into a Iudicial Office, as an Alderman, whose place concerns Judicature; that they cannot amove him without Cause: But this was in a Mi­sterial Office.

It was further moved, That it did not appear, that they had discharged him by any matter in Writing under Seal; and it could not be by Parol. Sed non allocatur; for it is returned to be done by the Mayor and Burgesses; and a Corporation cannot do any thing by Parol. Post.

[Page 78]An Executor obtained Judgment in Debt in this Court, and was afterwards upon an Information here convicted of Forging the Will; It was also made void by Sentence in the Ecclesiastical Court. Whereupon the Court was moved to vacate the Judgment, which they ordered accordingly, and the Cause of Vacuteing thereof to be entred upon the Record. Vide Ante in Paris's Case.

King versus Atkins.

IN Debt upon a Bond, the Condition recited, That whereas the Plaintiff was Bound with the Defendant being an Excise-Man, that he should render a true Account in the Exchequer; that the Defendant should save him harmless at all times, &c. The Defen­dant pleaded non fuit damnificatus. The Plaintiff replied, That a Scire facias issued out against him, &c. To which the Defendant demurred, because he did not alledge that he gave notice.

This being spoken to divers times, the Court thought notice not requisite in this Case, no more than upon a Promise to pay so much at the others Marriage, or return into England. vid. Hob. 112, 113. 1 Bulst. 12 and 13. Where it is held upon a Promise notice is not necessary, otherwise upon a Bond, because of the penalty. Ante

Chester versus Wilson.

TRin. 21 Car. 2. Rot. 498. The Case was two Ioyn-tenants, the one Grants Bargains and Sells all his Estate and Interest to the other. It was held clearly by all the Court, That this amounted to a Release; but it must be pleaded quod relax­avit; for one Ioyn-tenant cannot grant to another.

Wilson versus Armorer.

IN Debt against the Heir, upon the Bond of his Ancestor, who pleaded riens per discent; the Jury find a Special Verdict to this effect,

That the Father was seised of a Mannor in Fee, and made a Feoffment of it, excepting two Closes, for the life of the Feoffor only, and refered it to the Iudgment of the Court, whether these Closes descended to the Defendant or not. So that the Question was, Whether the Closes were well excepted, or passed by the Feoffment.

And it was argued by Levins for the Plaintiff, That by these words, the two Closes were Totally excepted, and that the Law should reject the latter words; because they cannot take effect accord­ing to the Parties intention, to reserve to the Feoffor a parti­cular Estate. If one surrendred a Copyhold to the use of J. S. [Page 79] and his Heirs, which Estate to begin after his death, adjudged in 2 Rolls 261. a present Fee simple passed, 3 Cro. 344. A Man said to his Son being upon his Land, Stand forth, Eustace my Son reserving and Estate for mine and my Wifes Life, I do give you this Land, to you and your Heirs. Resolved there that this is a good Feofment, Moor 950. Popham 49. A Man possessed of a Term in an House in the right of his Wife, granted it, excepting the Cellar, pro usu suo proprio, and held that by these words it was alto­gether excepted out of the grant, 1 Anderson 129.

Serjeant Turner è contra, For that it is but one Sentence, and cited 38 H. 6. 38. An Addowson was granted, saving the Presen­tation to the Grantor during his life, and held void, and Pl. Com. 156. where it is said, if a Termour granted his Term after his Death, it is void. But if in two Sentences, as to grant his Term, Habendum after his Death, there the Habendum is only void. Er Adjurnatur. Postea.

Love versus Wyndham.

AN Action upon the Case, upon an Issue directed out of Chancery; upon a Special Verdict, the Case was, George Searl being seised of the Mannor of N. Demised the same to Nich. Love for 99 years, if 3 Lives should so long live. N. Love devi­sed it to Dulcibell his Wife, the remainder to Nich. his Son for life, and if he the said N. the Son should dye without Issue, then to Barnaby Love, the Plaintiff. The Executor assented, and whether the Devise to Barnaby were good, was the Question. Jones for the Plaintiff, this is a good possibility. I shall make two points.

First, If a Termor Devise first to one and then to another, whether he may Devise it over.

Secondly, Whether the Limitation here after the Death with­out Issue, be a good Limitation over.

First, He may make a third Limitation, which is a Possibility upon a Possibility; at least he may make 2 or 3 such Limitations over. I can't certainly say where it will end. It can't be denied, but that a Termour may Devise first to one for life, and after to another, 8 Co. 95. But I say he may go further, and that will appear by Reason and Authority.

First, By Reason. The Reason given, why the Executory Devise in the first case is good, is, because 'tis in Construction of Law, as much as if he had Devised it to the last first, (if the first Man should dye within the Term) and then had Devised, that the first should hold during life; and without such a transposition it cannot be good. Now this being the way of Operation, there is no reason why he may not Devise it to one, after the death of [Page 80] two, as well as after the death of one. This would be so in Grants, were it not that a certainty is required in them, 1 Cro. 155. which is not required in Devises.

Freeman versus Barnes.

EError to Reverse a Judgment in an Ejectione firmae in the Common Pleas; the Case upon a Special Verdict was thus.

The Marquess of Winchester being seised in Fee of the Lands in Question the 8 of July, 9 Jac. Lets them to Sir An. Maynee for 100 years, in Trust for the Marquess and his Heirs, and to wait upon the Inheritance. The Lessee enters, afterwards the Mar­quess enters, and Lets it to the Lord Darcy for 7 years, and then Lets to the Spanish Embassador for 7 years, which Leases be­ing expired, Sir A.M. Demises to Freeman for a Term yet un­expired (this Demise is not found to be upon the Land.) After­wards the Lord Marquess Demises to Germin for 54 years, upon Consideration of Money, and Reserves, a Rent, and Cove­nants, to Levy a Fine for the assurance of the Term, which was afterwards done with Proclamation. Germin enters, and five years passed without any Claim made; which Lease by mean Assign­ment came to Wicherly, the Lessor of the Defendant, who was Plaintiff in the Common Pleas, and there had Iudgment.

The only Question upon this Special Verdict was, Whether the Fine and Non Claim, should barr the interest of Sir A. M. the Lessee in Trust.

This Case having béen argued thrée several times at the Bar; The Court did this Term deliver their Opinons, and did all agrée, that the Iudgment ought to be affirmed.

It was considered quid operatur, by the entry of the Marquess, and they all, except Moreton, held, that Prima facie, he was Te­nant at Will, as Littleton Sect. 463. is, where the Feoffor enters up­on the Feoffée to his use; but that the Entry of Germin his Lessée did ouft Freeman the Assignee of Sir A.M. which Assignment, though not found to be upon the Land, 2 Cro. 660. was good, as the Chief Justice held, because the two former Leases made by the Marquess were expired, so he became Tenant at Will again; but them he making of ano­ther [Page 81] Lease, and the Lessee entring, this must work an ouster, and so the Fine would bar the Right: For they agreed, that a Fine regularly shall not work upon an Interest which is not dive­sted; though in some Cases it doth, as upon the Interest of a Term, according to Safins Case, 5 Co. which yet cannot be divested; but though the first Entry make but a Tenancy at Will, yet taking upon him to make Leases, that is enough to declare his intent to dispossess his Lessee in Trust. Besides he reserves a Rent, and Co­venants for quiet Enjoyment, and to make further assurance, which could not stand with the Interest of the Lessee in Trust: And for the Cases that were objected as Blunden and Baughs, 1 Cro. 220. Where it is adjudged, That the Entry of the Lessée for years of Tenant at Will, should be no disseisin, nolens volens, to him that had the Freehold, for there was no intention of the Parties to make it so; and here the Law shall rather give the Ele­ction to him which had the Inheritance to make it a devësting, than the Lessee; or rather, as the Chief Justice said, the Law con­strues such Acts to amount to a divesting, or not divesting, as is most agreeable to the intention of the Parties; and the right of the thing which distinguishes it also from the Case of Powsley and Blackman cited in Blunden and Baughs Case; where the Mortgageor held at the Will of the Motrgageē, and let for years, the Lessee entred, and held notwithstanding, that the Mort­gagee might Devest. So Sir Tho. Fishes Case, in Latches Rep. Where Tenant for years Lets at Will, and the Lessée makes a Lease for years, and then the remainder is granted over; This Grant is held to be good; which, whether by the remainder there be understood, the interest of the Lessee, or the Fee-simple; yet it is no more than my Lord Nottinghams Case, and not like the Case in Question, For there the Lessee held the interest in his own Right, and here but in Trust; and for the Case in Noyes Re­ports 23. Twisden said, he wholly rejected, that Authority; for it was but an Abridgment of Cases by Serjeant Size, who when he was a Student borrowed Noyes Reports, and abridged them for his own use.

The Case was this; Tenant in Fée makes a Lease for years, then Levies a Fine before Entry of the Lessee: It is held there, though five years pass the Lessée is not barred, which is directly against the Resolution of Saffins Case; and for Authority in this Case, they relied upon the Case of Isham and Morris, in 1 Cro. 781. Where upon Evidence it was resolved by the Justices, That if the cesty quo Trust of a Lease for years, Purchaseth the In­heritance, and Occupies the Land, and Levies a Fine, that this after five years shall bar the Term, which is not so strong as this Case; because there were no Leases made, and Entry there­upon; and the Trust must pass inclusively by the Fine, as is re­solved [Page 82] in divers Books; especially in this Case, where it is to wait upon the Inheritance, which though it arises but out of a Term, yet it shall follow the Land, and go to the Heir.

And for the inconveniences which were objected, That if any Man purchased Land by Fine, that he could not keep on Foot Mortgages and Leases, which it is often convenient to do. The Chief Justice declared his Opinion, That in that Case the Fine should not bar, there not being any intention of the Parties to that purpose.

And as to the other, that where the Mortgageor continuing in Possession, Levies a Fine, this should bar the Mortgagee; he denied that also, and grounded himself upon Fermours Case, in 3 Cro. And Twisden agreed.

Dighton's Case.

HE brought a Mandamus to be restored to his place of Town Clerk of Stratford super Avon. The Corporation returned Letters Patents, whereby they were empowered to chuse one into the Office of Town Clerk, Durante bene placito, and that they removed him from his Office.

Jones prayed that he might be restored notwithstanding, because no Cause of his removal was returned, nor that they had ever Summoned him, whereas if they had, he might peradventure have shewed such Reasons as would have moved them to have continued him; and he cited Warrens Case, 2 Cro. 540. who was restored to his Aldermanship, where the Return was as here.

But the Court held, that they could not in this Case, (although) they confessed they knew the Merits of the Person) help him. And the Chief Justice said, The Case of the Alderman differed, for he is a part of the Corporation, which is a continuing Body, and no Member thereof can be displaced at the will of the rest; but it is otherwise in Case of such an Office as this; the Cases cited agree, if it had béen a Common Council Man, as was re­turned at first.

And here they said it were fit a Scire facias went out of Chan­cery, to Repeal these Letters Patents as unreasonable. If they had béen to chuse a Town Clerk generally, it had béen for his life; or if to chuse one, provided they might turn him out at their Will and Pleasure; yet they could not have done so without Cause, as Twisden said: But here the Authority is absolute, to chuse him Durante bene placito, which it was said was not so much to be admired at, for the Offices of Judicature in the Courts at Westminster are so determinable.

Foot versus Berkley.

Pas. 19 Car. 2. Rot. 1618. In a Writ of Error to Reverse a Judgment, given in an Ejectione firmae in C. Banco. The Case upon a Special Verdict was this, The Prior of Bodmin was sei­zed in Fee, and 29 H. 8. demised to John Monday and others for 96 years, at the Rent of 60 l per annum.

The Possessions of the Priory afterwards came to the Crown, and descended to Queen Eliz. Who in the 42 year of her Reign grant­ed to John Monday for 30 years, Habendum after the end of the former Term, under the same yearly Rent. The Inheritance was afterwards conveyed to divers in Trust for the late Queen Mother; who in 14 Car. 1. demised to Francis Godolphin in this manner, reciting that Queen Eliz. in the 32 year of her Reign, (whereas it was the 42) demised to J.M. (and did not recite for what Term) to Commence after the Expiration of the Term for 96 years, granted by the Priour, reserving 60 l Rent, did Demise to the said Francis for 21 years, to Commence after the end of the Term granted, by the said recited Letters Patents of Queen Eliz. They find no Lease made in the 32 year of the Queen, &c. Now whether Godolphins Lease should begin from the making, (which if it should, it is for some year expired,) or to expect while the Lease made in 42 Eliz. should determin, was the sole Question.

And by the Opinion of the Court of Common-Pleas, (Tyrrel only to the contrary,) It was adjudged, That the Lease should Commence presently upon the making: And a Writ of Error being brought, after divers Arguments at Bar, it was this Term argued by the Court, And resolved, that the Iudgment should be af­firmed.

They held that every Lease for years must have a certain be­ginning and a certain end, either expressed, or referred to some­thing which they make it so: And here it is referred to a Lease, whereas there is not any such Lease, therefore it is to begin pre­sently; as if it had been to Commence from an impossible date; Co. Litt. 46. B. A Lease made from the 30 of February shall Com­mence presently; and it is the same thing, when to begin from the end of a Lease misrecited, for it is no more than to refer it to nothing, Br. Leases 62. 1 Cro. 220. Miller and Johns Case, Dier 116. 2 Roll 55. 4 Rep. 53. Palmers Case, Bendlowes Rep. 35. 1 Ander­son 3. Leonard Mounts Case. And whereas it was objected in this Case, That the Date is not material, and that there was enough expressed, to ascertain what Lease the Parties intended; and the Case in Hob. 129. was cited, Where one made a Lease, Habendum à festo purificationis, and then reciting by his Deed, that he had made [Page 84] a Lease to Commence à festo Annuntiationis, granted the said Re­version; The Court held this there a good Grant.

It was answered, That the Lease here was tied up by such precise words, to begin upon the Determination of the Lease granted by the said recited Letters Patents, that this cannot be referred to a Lease which varies in the Date, though agreeing in other Circumstances; (yet the certainty of the Term is not reci­ted neither,) And though a Lease is good without a Date; yet when a Lease is recited to be of one Date, a Lease which bears another Date cannot be said to be the said recited Lease. And the Case in Hobart is very different from this Case; for in the Grant of the Reversion, the misrecital of the particular Estate is not material in the case of a common person, so long as he hath a Re­version in him: But here on Term is recited to give a certainty of Commencement to another; and if here be none such, it must begin presently; so that however, the Grant is good also here, either to pass the Reversion with Attornment, or being by Inden­ture to take effect, upon the forfeiture, &c. of the former Term, Pl. Com. 433.

Twisden said, Walter Chief Baron reported, this Case to be ad­judged, where one made a Lease to begin from the Nativity of our Lord last past, It was resolved it should begin presently, and not from Christmas, for that was the feast of the Nativity; and to take it from the Nativity, the time would have béen effluxed many times over, and that in the Kings Case, such a Lease would be void. But here, if the Case were thus, that A. had made a Lease to B. for 30 years, to Commence from the 1st of March, and then A. reciting the former Lease to be made the 1st of May for 30 years, had made another Lease, to Commence from the end of B's. Lease; the Lease should have Commenced after the former ended. But it cannot be so in the Case in Question, Because tied up to the said recited Deed.

Another Objection was, Because this being by Indenture, the Parties should be estopped to say, that there was no such Lease; and this was much insisted on by Serjeant Maynard, in his Argu­ment for the Plaintiff.

To which it was answered, That this being by Recital, could work no Estopel.

Again, the Question is not now between the Parties to the Lease; and though they and their Assignees might be bound in pleading; yet being in a Special Verdict, the Court shall judge according to the Truth. And so is Isham and Morrice's Case, 1 Cro. 77. And Rawlins Case, 4 Rep. is between the Parties them­selves. So they all resolved, that Iudgment should be affirmed.

The King versus Bates.

ERror to Reverse a Judgment given in an Information at the Assizes in Norwich, because the Information was Exhi­bited before Justice Moreton and Justice Rainsford; and the Trial and Judgment was at the next Assizes before two other Judges.

And it was Objected by Pemberton. That their Commission of Oyer and Terminer doth not empower them to determine any thing which was not Commenced before them; and so is Bro. tit. Commission 24. And in the 4th Inst. my Lord Coke saith, that the Sta­tute of Edward the 6th extends only to Justices of Gaol-delivery; sed non allocatur.

For the Court said, the Statute extends to hath; and so hath been the constant Practice.

Secondly, There was no good Trial; for there is an Award of a Venire facias, but no Writ certified. But this was also Over­ruled; for it is the Course of the Assizes not to make out any Writ.

Thirdly, Issue is joyned by the Clerk of Assize, which the Court said ought to be; for he is Attorney General there.

Parker versus Welby.

THe Plaintiff brought an Action upon the Case against the Defendant, and Declared, that he Sued out a Latitat against a third Person, directed to the Defendant, being Sheriff; who thereupon Arrested him, and after let him go at large: And then he Returned a Cepi Corpus & paratum habuit, ubi revera, he had not his Body at the Day.

To this Declaration the Defendant Demurred, supposing that no Action would lye for this False Return; for the Statute of 23 H. 6. obliges the Sheriff to let to Bail; and if he hath not the Body at the Day, he is to be amerced.

But the Court were of Opinion for the Plaintiff: For it shall be intended that he let him go without Bail; and if he did not, he ought to have pleaded the Statute of 23 H. 6. which is a Private Law: And at the Common Law a man could not be let at large in such case, without a Homine Replegiando.

Or else he might have pleaded Not Guilty, and given the Statute in Evidence: And so it is Adjudged in Layton and Gardiner's Case, 3 Cro. 460. So Moor placito 996. 2 Cro. 352. and 3 Cro. 624. Where the Defendant pleaded, That he let to Bail according to the Statute; and the Plaintiff was barred.

[Page 86] Twisden cited a Case in this Court, Paschae 21 Car. 1. Rot. 616. between Franklyn and Andrews; where the Plaintiff Declared, as in this Case. And the Defendant pleaded the Statute, and that he let him at large upon Sureties, and traversed absque hoc, that he returned his Writ Aliter aut alio modo: To which the Plaintiff Demurred.

It was Resolved,

First, That the Sheriff could Return nothing but Cepi Corpus: And he was then amerced, because he offered to make a Special Return.

Secondly, That where the Sheriff let the parties out to the Bail, and he made such Return; that it was no False Return, and therefore he should not have traversed Absque hoc, that he Returned Aliter vel alio modo: As in Maintenance, where the Defendant Iustifies, for that the party could not speak English, and therefore he went with him to instruct his Counsel: He shall traverse Absque hoc, that he maintained Aliter; because that he maintained [Would not do,] tho' it be justifiable. So in that case the Court ordered it to be Entred upon the Roll, that Judgment was given for the Plaintiff quia Traversia fuit mala.

So here they Ordered it to be Entred, because the Defendant did not plead the Statute of 23 H. 6.

Hocking versus Matthews.

AN Action upon the Case was brought for Maliciously Im­pleading, and causing him to be Excommunicated in the Ecclesiastical Court; whereby he was taken upon an Excom' Cap', and Imprisoned, until he got himself absolved.

The Defendant pleaded Not Guilty, and found against him: And it was afterwards moved in Arrest of Judgment, that the Decla­ration was not good; for no Action will lye for suing a man in the Spiritual Court, tho' without cause, no more than in Suing in the Temporal Courts. For Fitz. N. B. is, That a man shall not be punished for bringing the Kings Writs. So Hob. Waterer and Freeman's Case. And it hath been lately held, that no Action will lye for an Indictment of Trespass, tho' falso; but an Action of the Case will lye for suing in Court Christian for a Temporal Cause.

But the Court in this Cause gave Judgment for the Plaintiff: For tho' in an Action between party and party in the Ecclesiastical Court; where (if the matter goes for the Defendant) he shall have his Costs, no Action will lye if the Court hath Iurisdiction: Yet where there is a Citation ex Officio, and that is prosecuted malicously without ground, the Party shall have his Action; for in such Suit he can have no Costs: And so is Carlion and [Page 87] Mills's Case Adjudged, 1 Cro. 291. And this shall be so intended after the Verdict, or otherwise the Defendant should have shewed it to be otherwise, and Iustified. And Rainsford said, without Cause, shall be understood, without any Libel or Legal Pro­ceedings against him.

Anonymus.

IN Debt upon an Obligation to perform an Award, which was to pay the Rent mentioned in such an Indenture: He that pleads performance of this Award, needs not set forth the Indenture, but refer generally to it: But if it be to be paid in such manner, and at such times as is expressed in the Indenture, then it must be set forth at large.

The like of an Award of payment of Money given by a Will.

Wilson versus Armorer.

THe Case was Argued again this Term by Coleman for the Plaintiff, who Argued, that the Exception takes the two Closes wholly out of the Grant, and that no modification can be annexed to it, 3 Cro. 657. and Moor Pl. 747. A Lease was made for certain Lands, excepting a Close, and Covenants were for quiet Enjoyment of the Premisses. The Lessee disturbed the Plaintiffs possession in the Close excepted, yet he could not bring a Writ of Co-venant; for by the Exception it is as much as if it had been never mentioned; and in this Case the Livery being secundum formam Chartae, could not work upon these Closes. The Case of Hodge and Crosse; cited in Hob. 171. was this: A man gave Lands to another, Ha­bendum to him and his Heirs after the death of the Feoffor, and Livery secundum formam Chartae: Resolved a void Feoffment, and relyed upon the Case in 1 Anderson 129. as full in the Point, A Lease of an House, excepting a Chamber pro usu suo proprio & occupatione: It was held, that he might assign.

Weston ê contra. This Exception is altogether void; for it cannot be for the Life of the Feoffor only, Bro. tit. Reservation 13. and it shall not except the whole Fee against the Intention of the Parties; for then the Ill wording of his Exception should give him above twice as much as otherwise be should have had; and it is but one entire Sentence, and taking it altogether it must have an effect, which the Law doth not admit, and is therefore to be wholly rejected: As where a man grants his Term after his death, the Grant is void. Otherwise where he grants his Term habendum after his death; for there the last Sentence is rejected, Hob. 171. The Case of the Exception of the Chamber is not alike; for excepting it for his own use, are apt words to give him power to dispose of it at his pleasure.

[Page 88] Keeling, Rainsford and Moreton held the Exception good for the entire Fee.

Twisden, That it was wholly void, because one Sentence. Plus Postea

Sympson versus Quinley.

TRin. 20 Car. 2. Rot. 719. A Custom, that Lands should descend always to the Heirs Males, (viz) To the Males in the Col­lateral Line, excluding Females in the Lineal, was held good. Which it was said was allowed anciently in the Marches of Scotland, in order to the Defence of the Realm, which was there most to be looked to; tho' it is said in Davis's Reports, That the Custom of Gavelkind, which was pretended in Ireland and Wales, to divide only between Males, was naught. But the former Cu­stom was adjudged good in this Court, Hill. 18 Car. 2. Rot. 718.

Foot versus Berkly.

BErkly had Iudgment in an Ejectment in Communi Banco, and Execution of his Damages and Costs: Foot brings Error, and the Judgment is affirmed. Whereupon Berkly prays his Costs for his delay and charges; but could not have them.

For no Costs were in such case at the Common Law, and the Sta­tute of 3 H. 7. cap. 10. gives them only where Error is brought in delay of Execution; so 19 H. 7. cap. 20. And here, tho' he had not Execution of the Term, yet he had it of his Costs.

If one hath Iudgment in a Formedon in Remainder, and before Execution the Tenant brings Error, the Judgment is affirmed; yet he shall pay no Costs, because none were recoverable at first, 1 Cro. Ante.

Weyman versus Smith.

A Prohibition was prayed to the Mayor and Court of Bristol, Suggesting, that a Plaint was Entred there for 66 l and that the Cause of Action arose in London, and not in Bristol, and so out of their Iurisdiction.

Note, An Affidavit was also made thereof, and this is upon Westm. cap. 35. and so is F.N.B. 45. Vnless the party pleading in Bar, or Imparling, admits the Iurisdiction of the Court, 2 Inst.

Tarlour and Rous versus Parner.

AN Account brought by the Plaintiffs, as Churchwardens, against the Defendant the former Churchwarden, for a Bell, &c.

[Page 89]The Defendant pleads, That it lacked mending, and that by the Assent of the Parishioners it was delivered to a Bell Founder, who kept it until he should be paid. To which the Plaintiff De­murred.

For this Plea is no bar of the Account, but a good Discharge before Auditors. But it was said on the other side, That the Matter pleaded shewed that the Defendant was never Accountable, therefore it might be in Bar. The contrary whereof is Adjudged in the same Case in terminis, 1 Rolls 121. between Methold and Wyn; and so was the Opinion of the Court here.

But then it was alledged, that the Declaration was not good, for there were two Plaintiffs, and yet it is quod reddat ei compo­tum, and it is de bonis Ecclesiae, whereas it should have been, bonis Parochianorum.

For the first, the Court said that it should be amended; for it was the default of the Clerk.

But the other was doubtful: For the Presidents were affirmed to be both ways; but they rather inclined, that the Declaration was not good for that cause.

Anonymus.

AN Indictment of Forcible Entry in unum Messuagium vel domum Mansional', (quaere, if not uncertain) and other Lands and Tenements, tent' ad voluntat' Dom' secundum consue­tudinem Manerii, and doth not express what Estate.

For which the Court held, it ought to be quashed; for the Statutes 8 H. 6. and R. 2. extend only to Freeholds, and the Statute in King James's time, to Leases for years and Copyholds. And here, tho' he saith, at the Will of the Lord, according to the Custom of the Mannor; yet 'tis not sufficient, because he saith not, by Copy of Court Roll. And it was Adjudged in 1653, in this Court, that none of the Statutes extended to Tenants at Will.

Martyn versus Delboe.

IN an Assumpsit the Plaintiff Declared, That he was a Mer­chant, and the Defendant being also a Merchant, was Indebted to him in 1300 l And a Communication being had between them of this Debt, the Defenant promised him in Consideration there­of, That he should have Share to the Value of his said Debt, in a Ship of the Defendants, which was then bound for the Barbadoes; and that upon the Return of the Ship he would give him a true Account, and pay him his proportion. And sets forth, That the Ship did go the said Voyage, and returned to London; and that after the Defendant, with some other Owners, had made an account of [Page 90] the Merchandize returned in the said Ship, which amounted to 9000 l and that the Plaintiffs Share thereof came to 1700 l which he had demanded of the Defendant, and he refused to pay it, &c.

To this the Defendant pleads the Statue of Limitations, and the Plaintiff Demurred.

Alledging, that this Action was grounded upon Merchants Ac­counts, which were excepted out of the Statute. Tho' if an Action be brought for a Debt, upon an Account stated between Mer­chants, the Statute is pleadable, as was Adjudged in this Court last Hillary Term, between Webber and Perit; yet here there being no Account ever stated between the Plaintiff and Defendant, it is directly within the Statute: And of that Opinion were Keeling and Rainsford.

But Twisden inclined otherwise, because the Plaintiff declares upon an Account stated, and tho' between Strangers, yet he bring­ing his Action upon it admits it. Et Adjornatur.

Nota, Every Parish of Common Right ought to Repair the High-ways, and no Agreement with any person whatever can take off this Charge which the Law lays upon them.

Crispe and Jackson versus The Mayor and Commonalty of Berwick.

IN Covenant, after Verdict for the Plaintiff, it was moved in Arrest of Judgment, that there was a Mis-Trial, the Venire being awarded to an adjoyning County: Which the Court, after Hearing of Arguments in it, Ruled it to be well enough; but one of the Plaintiffs died before the Court had delivered their Opi­nions.

It is prayed notwithstanding, that Judgment might be Entred, there be no default in the Plaintiffs; but a delay which came by the act of the Court; and that it was within the Statute of this King, That the death of the Party between Verdict and Judgment should not abate the Action, and that it was in the discretion of the Court, whether they would take notice of the Death in this case; for the Defendant hath no Day in Court to plead, there being no Continuances entred after the Return of the Postea, 1 Leon. 187. Isley's Case Latches Rep. 92. And the Court were of Opinion, that Judgment ought to be Entred, and there being no Continuances, it may be as if immediately upon the Return of the Postea. Ante.

Lion versus Carew.

THe Case was: A Lease was made to two for 99 years; if three Lives should so long live, and this to commence after the end of a Lease for Life, Reddend' a certain yearly Rent, and two Work-days in Harvest, post principium inde, & reddend' inde 3 l nom' Harriotte, post mortem of the Lessees, or either of them, and reddend' two Capons at Christmass, post principium inde. One of the Lessees died before the Lease for Life deter­mined, whereupon the Lessor brings Covenant for the 3 l and sets forth this Matter in the Declaration.

To which the Defendant Demurred, supposing that the 3 l was not to be paid unless the Death had hapned after the Term had commenced. And the Court having heard it spoken to divers times by Counsel on both sides, by the Opinion of Twisden, Rainsford and Moreton, Iudgment was given for the Defen­dant.

For all the other Reservations but this were expresly post prin­cipium termini, and Clauses in Companies are to expound one another, as it is said in the Earl of Clanrickard's Case in Hobart. It is in the nature of a Rent and Reservation, which it is not necessary that it should be Annual. And in Randall and Scories Case, 1 Cro. such a Duty was distrained for, and it shall attend the Reversion, Rolls 457. And he that hath but an interesse termini, is not to pay the Rent reserved; for there is no Term, nor no Reversion, until it commences.

If A. lets to B. for 10 years, and B. redemises to A. for 6 years, to commence in futuro; in the mean time this works no suspension of either Rent or Condition. The Intention of the Parties is to be taken, That it should not be paid until then. However, Reservations are to be taken most strongly against the Reserver: As Palmer and Prowses Case, cited in Suffeild's Case, 10 Co. is: The Reversion of a Lease for years was granted for Life, reserving certain Rent cum reversio acciderit; a Distress was made for the Rent arrear ever since the Grant.

Resolved, that it was good for no more than was incurred since it fell into possession.

Keeling Chief Justice held strongly to the contrary: For he said the words were so express in this Case, that they have left no place for Construction, which other Clauses or the Intention of the Parties may direct, when the Expression is doubtful. He took it for a Sum in gross; for Distrained for, it could not be being reserved upon the Death of the Lessees, or either of them; which was also the limitation of their Lease: And that Inter­pretations were not to be made against the plain sense of words, [Page 92] He relied upon Edriches Case, 5 Co. where the Judges said, They would not make any Construction against the express Letter of the Statute; yet there was much Equity in that Case to incline them to it. And he said, As well as a Fine is paid upon the taking of such Lease before it begins, why may not something be paid also when their Interest determines? And in some Countries they call such Payments, A fair Leave.

Miller versus Ward.

TRespass for breaking of his Close on the 1st of August, and putting in his Cattel. The Defendant Iustifies for Com­mon, which he prescribes for in this manner; (viz.) That two years together he used to have Common there, after the Corn reaped and carried away until it was sown again, and the Third year to have Common for the whole year; and that that Year the Plaintiff declares for the Trespass was one of the years the Field was own, & quod post grana messa, &c. he put in his Cattle, absque hoc that he put them in aliter vel alio modo.

The Plaintiff Demurs, which it was Ruled he might; for the Defendant doth not answer to the Time wherein the Trespass was alledged; and the Traverse will not help it; for aliter vel alio modo doth not refer to the time.

Anonymus.

AN Administrator brings Debt upon an Obligation. The Defendant pleads payment to himself. Vpon which it was found for the Defendant.

Coleman prayed that he might have Costs: As where an Execu­tor brings an Action sur Trover and Conversion in his own time, and found against him; it was Ruled in Atkyes Case, 1 Cro. that he should pay Costs; and hereof his own knowledge he had no cause of Action, the Money being paid to himself.

But the Court Resolved, That there ought to be no Costs in this Case; for the Action of Trover in his own time might have been brought in his own Name, so it was needless to name himself Executor or Administrator; but the Action here is meerly in right of the Intestate.

Harvey versus James.

AFter Verdict at the Assizes, the Clerk delivered the Postea to the Attorney, by whose negligent keeping it came to be eaten with Rats. But the Court Examining the Clerk of Assize, it appeared that he had Entred the Jurors Names, Verdict and [Page 93] Tales in his Book, and according to that, the Court suffered the Verdict to be entred on Record.

Anonymus.

IN an Action of Battery against Baron and Feme the Jury find the Feme only Guilty and not the Baron.

It was moved in Arrest of Judgment, That this Verdict was against the Plaintiff; for he ought in this Case to have joyned the Baron only for conformity, and he declaring of a Battery by both, the Baron being acquitted, he hath failed of his Action; and so is Yelverton 106. in Drury and Dennys Case.

But here the Court gave Iudgment for the Plaintiff, and said that that in Yelvetron was a strange Opinion.

Anonymus.

A Certiorari was prayed to remove an Indictment of Man­slaughter out of Wales; which the Court at first doubted, whether they might grant, in regard it could not be tryed in an English Country: But an Indictment might have béen found there­of in an English County, and that might be tryed by 26 H. 8. cap. 6. vid. 1 Cro. Soutley and Prices Case, and Chedleys Case.

But it was made appear to the Court, That there was a great cause to suspect Partiality, if the Tryal proceeded in Wales; for the Party was Bailed already, by the Justices of Peace there, (which Twisden said it was doubtful, whether they had power to do for Manslaughter.) They awarded a Certiorari, and took Or­der, that the Prosecutor should be bound by Recognizance to pre­fer an Indictment in the next English Country.

Collect versus Padwell.

IN Debt upon a Bond to perform an Award, which was▪ That one should make a Lease to another before the 21 of October, which was 2 or 3 Months after the Award, and that the other upon the making of the Lease, should pay him 50 l

The Question was, Whether notice in this Case ought to be given, when he would make the Lease; for otherwise it was said; the other must have 50 l always about him, or be in danger to break the Award.

And it was resolved by the Court, That no notice was neces­sary.

Noell versus Nelson.

MIch. 21. Car. 2. Rot. 745. Error to Reverse a Judgment given in the Common Pleas, where the case was thus. Nelson brings Debt against Noel, as Executor of Sir Martyn Noel, who pleads plene administravit. The Plaintiff confesseth the Plea, and prayeth Iudgment, de bonis Testatoris quae in futoro ad manus Defendentis devenirint; and upon a Suggestion of Assets after­wards, he had a Scire facias against Noell, and Iudgment there­upon.

Noell brings a Writ of Error, and assigned it in this, that the Plaintiff confessing the Plea of fully Administred, ought to have béen barred.

And it was argued by Wynnington for the Plaintiff, and Symp­son for the Defendant.

Wynnington, Where an Executor pleads falsely or de­ceitfully, Iudgment is to be given against him; as upon [...]he unques Administer come Executor, Iudgment shall be de bonis propriis: But where he Pleads truly, it is the Reason the Plaintiff should be barred; and the Plaintiff confessing his Plea, It is as strong as if found by a Jury, or rather more; for Verdicts may be false, and therefore Attaints are provided; and such express con­fession as here is, is much stronger than an implied Confession sur Demurrer. Indeed if upon plene Administravit Assetts are found for part of the Debt, Iudgment shall be for the whole, 8 Rep. 134. Shipley's Case, Because the Plea was false: But if an Executor should be liable to be Sued, and have Iudgment given against him when he had fully administred, it would put a great inconve­nience upon him, as to be put to charge to defend the Suit, and to be in Misericordia.

And whereas it was objected, That if the Plaintiff should be barred in such Case, he would yet have no advantage by Com­mencing his Suit, of having his Debt paid before other Debts in pari gradu; he answered, this inconvenience is not to be match­ed with that, that the Executor should be liable to; besides the Law will ever favour the Executor; for if an Executor be Sued, and the Plaintiff Nonsuit, he shall have Costs; but an Executor Plaintiff shall pay no Costs upon a Nonsuit, 3 Cro. 503. vid. Hob. 83. Lawneys Case. Also a Man may be presumed to know whe­ther an Executor hath Assetts or no, for he may consult the In­ventory.

And for the Cases that might be objected, as that of the Warrantia Chartoe against an Heir, who Pleads Riens per descent, or that the Plaintiff is not impleaded, the Plaintiff may pray Iudgment pre­sently, F. N. B. 134.

[Page 95]He Answered 'tis true, the Writ may be brought quia timet, for he may be after impleaded in an Action wherein he cannot Vouch; yet if he be after impleaded in a Praecipe he must Vouch, and this is a line real, and the Heir merely in loco patris; whereas, when an Executor hath fully Administred, the Executorship is as it were determined. And for the Case where Debt is brought against the Heir, who Pleads riens per descent; the Plaintiff may pray Iudgment presently, to have Execution of Assetts, as shall after­wards descend, he said he knew no particular Authority where it was so done; but if it be so as it is said in Shipleys Case, yet not to be resembled to this Case; for the Heir is charged as for his own Debt, and the Action is in the Debet, & Detinet, Com. 443. and if the Heir Pleads riens per discent, and found against him, the Iudgment is general, not so so of an Executor; so where the Iudgment is, sur nihil dicit, Moor 522. Dier 81. 344. 2 Rolls 67. Tit. Heir, so where he confesses the Action; but if an Executor after pleading Plene Administravit confess the Action, the Iudg­ment shall be de bonis Testatoris, Hob. 178. And for the Opinion in Shipleys Case, 8 Rep. which is according to the Iudgment here, he said it was obiter; but he relied upon Cro. Dorchester and Webbs Case; where that Opinion is denied, and said there, that all the Presidents are, that the Plaintiff is in such case to be barred, Rastals Entries, 323, 324.

Sympson contra, The nature of the Plea is to be considered, it both not deny the Cause of Action, but goes only to take away the present effect of it; remoto impedimento resurgit Actio vel Ex­ecutio, 34 H. 6. 23. Prisot saith, If an Executor Pleads ne unques Executor, and found against him, Iudgment is to be de bonis pro­priis. But otherwise, If he Pleads Plene Administravit, for then be doth not put the Party from his Action for ever. He said the Case of the Action of Debt against the Heir was the same, for he is bound only by reason of the Land descended, 1 Rolls 929. If an Executor Pleads Plene Administravit, and the Plaintiff takes Issue, and found against him, he is to be barred, for he (as the Book saith) hath waived his advantage; he cited also the Book of the Office of Executors,3 Cro. 887. (supposed to be written by Dode­ridge) lib. 7. cap. 15. and relied pricipally upon Shipleys Case, 8 Co. 134. which is cited and allowed in Hob. 199. And upon a President in this Court, Trin. 13 Jac. Rot. 1104. between Perryman and Westwood, where Iudgment was just as in this Case, and Mich. after Rot. 206. Vpon Suggestion of Assets, a Scire facias was taken out, and Issue taken and tried at Guild-hall, before my Lord Coke; where Assetts were found for part, and Iudgment to Re­cover so much, and the residue if Assetts should come after; which as to the latter Iudgment, was somewhat further than the princi­pal Case.

[Page 96] Keeling, Rainsford and Moreton, Held clearly, that Iudgment ought to be affirmed, chiefly for the great inconvenience it would be to one that had Commenced an Action, and yet his Debt should have no preference before others of the same sort; and many times the Testator leaves a great Estate in Bonds and Specialties, which yet are no Assetts until the Money is paid: Whereas the Case of the Heir is much stronger, in regard of the improbability of his having Assetts in futoro.

In 16 H. 7. 10. it is said, if an Executor Pleads Plene Admi­nistravit, it is but a Temporal bar. A Rent is granted in Fee, provided that it shall cease during the minority of the Heir, the Wife brings Dower, the Heir being under Age, she shall have Iudgment, sed cesset Executio.

Vid. Hutton 128. the case repor­ted without any such O­pinion. Twisden stuck much to the Authority of Dorchester and Webbs Case, but at length consented, that Iudgment should be affirmed.

Note, The Iudgment was in Misericordia, and the Court doubted at first, whether it were not Erroneous for that Cause; but it appeared, that the Executor did not come in primo die, wherefore notwithstanding they affirmed the Iudgment. Ante.

Prydyerd versus Thomas.

A Writ of Error was brought upon two Judgments, given in an inferiour Court, and they returned two Records betwéen the same Parties, but it seems not those which the Plaintiff in­tended, and this was complained of to the Court; and it appeared, that those which the Plaintiff brought his Writ of Error upon, were not determined, for Writs of Enquiry of Damages were re­turned, but no Judgments entred.

Curia, If there be divers Records betwéen the same Parties, the inferiour Court may remove which they please, they being warranted by the Writ so to do; and if Iudgment be given after the Teste, and before the Return of the Writ of Error, the Record shall be removed; but if Iudgment be entred after the Writ is re­turnable, the Writ is only to be returned, and that no Iudgment is yet given; and here was an omission in the Plaintiff, that he did not see that Iudgment was entred; for after a Writ of Enquiry of Damages returned, the Court is to give Iudgment at the prayer of either Party, and not without.

[Page 97] Note, If the Record vary from the Writ of Error, yet the infe­riour Court ought to remove it.

The King versus Ledgingham.

IN an Inormation against him for the King, the Court took a privy Verdict, and so it was said was the usual course at the Assizes. But it cannot be so in case of Felony and Treason, as is said in the 1 Inst. 227. b.

In cases of Life and Member, if the Jury cannot agree before the Judges depart, they are to be carried in Carts after them, so they may give their Verdict out of the Country.

Polus versus Henstock.

IN Trespass for impounding of 11 Oxen. The Defendant Pleads, That Sir H. Vernon was seized of a Close called the Cowes Lesowe in Fee, and Let it to him for 99 years; and that the Cattel came upon the Close, and so justifies for Damage Feasant.

The Plaintiff Replies, confessing Sir H. V's. Estate, and the Lease and saith, that Sir H. V. was seized of another Close adjoyn­ing, called Browns Close, and alledges a Custom in Peplow, (in which Town both the Closes are;) that all the Occupiers of the Cowes Lesowe had maintained a Fence against Bowmers, and that the Cattel came upon the Land in default of the Fence, &c. and Issue taken upon the Custom, and found for the Plain­tiff.

It was moved in Arrest of Judgment. First, That this was in the nature of a Prescription, and not of a Custom; for a Custom can­not be laid in a Ville, and applied to a particular place, or Inha­bitant therein, unless in case of a Coppyholder; where it is ne­cessary, in regard he cannot prescribe 4 Co. 113.

Secondly, If it had béen alledged by way of Prescription, it should be laid in him that had the Inheritance. And if it be objected, that it is hard to drive a Stranger to discover that; then it ought to be alledged quod omnes Tenentes; but not as it is here, omnes Occu­patores, 1 Cro. Baker and Breremans Case.

Thirdly, By the Vnity this Duty of Fencing is extingui­shed, and shall not revive though the Closes come after into se­veral Hands. In Dier 295. b. it is left a Quaere. But in Popham 172, it is clearly held so, where it is said, things of necessity shall re­vive, as a Way to Market or Church; but not so of Easments, 1 Cro. Baker and Breremans Case.

And of this Oppinion were the Court.

Jones versus Powell.

THe Plaintiff declared that he was an Attorney, and the Defendant to Scandalize him in his Profession said of him, That he could not read a Declaration; By reason of which many of his Clients left him. And the Opinion of the Court inclined against the Plaintiff.

For the Allegation of Special Damages will not maintain the Action, unless the words import some Slander, which these did not, unless brought in by some words precedent, touching his knowledge in his Profession; for the Declaration might be so writ­ten, that he might not be able to read it, without any Imputation of Ignorance.

Sard versus Ford.

MIch. 21. Car. 2. In an Action upon the Case the Plaintiff declared, That he was seized of the Mannor of Newton Abbot, and that he, &c. had kept a Market there every Wednesday, and used to have the profits of Stallage, &c.

That the Defendant had erected a new Market, at a place 7 miles distant from the Plaintiffs, held every Tuesday, &c.

Jones excepted to this Declaration, for that it could not be to the hindrance of the Plaintiff's Market which was 7 miles off, and kept upon another day, 22 H. 6. 14. 2 Rolls 140. It appears that an Action was brought against one that levied a Market not above 5 miles distant, and upon the same day.

Curia contra, The Writ of ad quod damnum doth not express the Market to be erected the same day, and notwithstanding it will hinder recourse to the other Market.

Anonymus.

A Dean and Chapter made a Lease of Tythes for years; the Lessée assigned over his Interest, and afterwards the Dean and Chapter bring Debt against him for the Rent: Who Pleads, That the Plaintiffs accepted the Rent, due since the As­signment from the Assignee, to which the Plaintiffs Demurr.

Jones, This is no Rent, but a méer Sum in gross due upon the Contract, therefore in the 5 Rep. in Jewells Case it appears, that such a Rent cannot go to the Successor of a Bishop, for the Suc­cessor of a Sole Corporation cannot Sue upon a Personal Con­tract to his Predecessour.

If the Reversion be granted over, the Grantee cannot bring Debt, 2 Rolls 447, 451. 1 Inst. 47. a. By the same Reason the As­signée of the Lease is not liable.

[Page 99]Again, The Acceptance is not well pleaded, for it is only Ac­ceptaverunt. Whereas a Corporation aggregate cannot accept but by Bayliff, and an Acquittance must be given.

Saunders contra. This is not a meer Sum in gross, but in the nature of a Rent, as is held in Valentine and Dentons Case, 2 Cro. 111. If it were a sum in gross, no Action could be brought until all the days of payment were incurred, 1 Inst. as upon a Bond to pay Money at several days.

Also the pleading of Acceptaverunt is good, for it being such a Corporation as can accept, necessary circumstances are ever im­plied, as Livery in a Feoffment; such a Corporation in an Assumpsit shall declare of a Promise made to them, which yet must be by means of their Bayliff or Attorney.

The Court held this last Matter to be most doubtful. And Twysden and Rainsford said it might be questioned, whether after acceptance of the Assignée, the Lessor might not resort to his Lessee for his Rent. It is delivered in Walkers Case thus, fuit dit, not as a Resolution, 3 Co. Et Adjurnatur.

Catterel versus Marshal.

ERror to Reverse a Judgment in an Assumpsit, brought by Mar­shal in the Common-Pleas; wherein he declared, that he be­ing sued in the Kings Bench, retained Catterel for his Attorney; who in Consideration of 30 s given him, and that he would en­ter into a Bond with sufficient Penalty to save him harmless, promised to get Bail filed for him; and Avers, that he did give him Bond with a great and sufficient Penalty, &c. The Defen­dant Pleads Non Assumpsit, and found for the Plaintiff, and he had his Iudgment.

Now it was assigned for Error, that he did not express of what Penalty the Bond was, that it might appear to the Court to be sufficient; as if one avow for a distress upon a Copyholder for a reasonable Fine, the value of the Land must be set forth, and the certainty of the Fine, that the Court may judge of it. Au­stin and Gervases Case, Hob. 69, 77. In Consideration that he should give him Bond for 10 l the Defendant promised, &c. and pleads, that he offered him Bond for the said sum, &c. and upon Issue Non Assumpsit, it was found for the Plaintiff. But he could not have Iudgment, because the sum wherein he offered to become bound was not exprest, so that it might appear to the Court to be sufficient.

Jones contra. This differs from the Case in Hob. for there the sum being certain for which the Bond was to be given, the Court may well judge what Penalty will secure it. But it is not so in this Case, for it doth not appear to what value the damnifi­cation [Page 100] may be; so there is nothing, as in the other Case, where­unto to Proportion the Penalty of the Bond.

The Court held, that it would not have been good upon a Demurrer; but being after a Verdict, and the Statute of Jeofails made at Oxford, (which Twisden stiled an omnipotent Act,) they gave Iudgment for the Plaintiff.

Lord Birons Case.

THe Lord Biron was Plaintiff in an Action, and upon a Non-Suit five pounds Costs were taxed against him; and he brought another Action for the same matter, which was said to be meerly for vexation; and that he refused to pay the Costs; nei­ther could he be compelled being a Peer, and in Parliament time.

Wherefore the Court gave day to shew Cause, why this Action should not stay until he had paid the Costs in the former.

Anonymus.

IF a Writ of Error be brought in the Exchequer Chamber, and that being discontinued, another is brought in Parliament; this second Writ is a Supersedeas. But if a Writ of Error be brought in Parliament, and that abates, and the Plaintiff brings a second; this is no Supersedeas, because it is in the same Court.

Prior versus Shears.

IN a Writ of Error to Reverse a Judgment given in the Palace Court in an Assumpsit, where the Plaintiff declared sur inde­bitatus pro Naulo, and upon Non Assumpsit, &c. had Judgment.

It was assigned for Error, That it was not ascertained how the Defendant was indebted; and that Fraight was usually con­tracted for by Charter party, and if so, the general Indebitatus would not lie for a Debt by Specialty.

Notwithstanding the Judgment was affirmed; for, for ought ap­pears there was not any Deed in the Case; and it shall not be inten­ded; and it is no more than the Common Action, pro mercimoniis habitis & venditis.

Note, It was further objected, That this appears to be for Marriners Wages for Sailing to some Foreign parts, which must needs be out of the Jurisdiction of the Marshalsea, and though the Argréement were made within it, yet the thing being to be done else­where, they could not hold Plea: As if a Carrier should agree within the Limits of the Court, to carry Goods from thence to York; no Action could be brought there upon it; which was agréed.

[Page 101]But the Court said here, It doth not appear they were to Sail to any place out of the Jurisdiction, and they have laid all the Matter to be infra Jurisdictionem Curiae. And therefore the Judgment was Affirmed.

Hayman versus Trewant.

TRin. 22 Car. 2. Rot. 710. In an Action upon the Case, for that the Defendant bargained with him such a day and year for the Corn growing upon such Ground, affirming it to be his own, whereas he knew it to be the Corn of J. S. and postea adtunc & ibid. fraudulenter vendidit & Warrant', &c.

The Defendant pleads, That the Plaintiff had another such Action depending for the same Cause, and demands Iudgment of the Writ.

The Plaintiff Replies, that that Action was commenced for ano­ther Cause, and not for the same; absque hoc, that it was for the same Cause. To which the Defendant Demurs specially; because the Plaintiff having denied what the Defendant affirmed, ought not to have added a Traverse, but to have concluded to the Country: As the Case of Harris and Phillips, 3 Cro. 755. was Adjudged, Where in an Audita Querela, to avoid the Execution of a Recogni­zance the Plaintiff sets forth, that it was defeazanced upon payment of divers Sums of Money at certain days; and that he was at the place appointed, and tendred the Money, and that the Defen­dant was not there to receive it. The Defendant pleaded Pro­testando, that the Plaintiff was not there to pay it, and that he was there ready to receive it; absque hoc, that the Plaintiff was ready to pay it.

Which being specially Demurred to, the Court held the Plea naught, and that there being an express Affirmative and Negative, there should have been no Traverse; for so they may traverse one upon another in infinitum.

Notwithstanding the Traverse was here held good, which was allowed for putting the Matter more singly in Issue: And it appears that Phillips's Case was Adjudged upon another matter; For that the Plea in Bar was not entred as the Defendant's Plea, but was entred thus: Pro placito Bush, a Stranger, dicit, Yelv. 38.

Then it was moved, That (as the Plaintiff hath declared) here it appears, that the Warranty was subsequent to the Bargain: For it is said, that he bargained for the Corn, knowing it to be the Corn of J.S. postea adtunc & ibidem vendidit, which is repugnant. Sed non allocatur; for where it is said first, That he bargained, that shall intended a Communication only, and the Consum­mation of it after, when the Warranty was given, which is also said to be adtunc & ibidem. So alledged well enough.

Foxwith versus Tremaine.

TRin. 21 Car. 2. Rot. 1512. Five Executors bring an Action sur Indebitat' Assumps. The Defendant pleads in Abatement, That two of them are under the Age of 17. and that they ap­peared by Attorney. And to this the Plaintiffs Demur.

They who Argued for the Defendant made two Questions:

1. Whether they ought all to joyn in the Action? And it was said, they ought not; for one under Age cannot prove the Will. And in Smyth and Smyth's Case; Yelv. 130. it is Resolved, they must be all Named, so that their Interest may be reserved unto them; but are not to be made parties to the Action. And for this the Case between Hatton and Mascue, which was Adjudged in the Exchequer Chamber, was cited: Where in a Scire facias it was set forth, That A. being the Executor of B. made his Will thus:

I Devise all my Personal Estate to my two Daughters and my Wife, whom I make my Executrix: And that they had Declared in the Ecclesiastical Court, that this made them all three Execu­trixes, and that the Will was proved; and that the Wife brought this Scire facias, to have Execution of a Judgment obtained by A. the Testator. And the Defendant Demurred, because not brought in all their Names; and it was Resolved in the Kings-Bench that the Action was well brought, and affirmed upon a Writ of Error in the Exchequer Chamber: But if in the Case at Bar they ought to joyn, they must appear by Guardian.

It having depended divers Terms, It was now Resolved by Rainsford and Moreton, that the Action was well brought; and they relyed upon the Case in Yelverton; and they said, the Case of Hatton and Mascue was no Authority against it, for there they were named; and where some are of Age, no Administration durante minori aetate is to be granted.

They held also, that the appearance ought to be by Attorney, because they joyn with others; and so in auter droit; and so is 3 Cro. 377. the Countess of Rutland's Case, and 541. Resolved, that an Infant Administrator shall sue by Attorney. See 1 Roll. 288: and 2 Cro. 420, & 421. Cotton and Westcote's Case. The difference is taken where an Infant Executor is Defendant, and where Plaintiff, and Judgment given for him; in which last Case only the appearance by Attorney is said to be good.

Twisden contra. An Infant cannot in any wise sue or defend by Attorney.

First, Because he cannot make an Attorney.

Secondly, If it should be allowed, he might be amerced pro falso clamore, and no way to avoid it but by bringing a Writ of Error.

[Page 103] Thirdly, He might be injured by the Attorney's Plea, and could not remedy himself, as he may against his Guardian; as if in Debt the Defendant should plead a Release, and the Attorney confess it. And he cited a Case in this Court, Mich. 1649. between Colt and Sherwood, Where an Administrator brought an Action, and it appeared by the Record, that he was above 17; yet it was Ruled, he ought to sue by Guardian. For tho' by the Civil Law he was of Age to undertake the Administration; yet the manner of his Suing was to be determined by our Law, and that could not be by Attorney until the age of 21.

Another Case be cited between Peyton and Dorce, adjudged in the Court upon a Writ of Error, out of the Petit Bag; where Peyton sued as Administrator, and the Entry was Quod queritur, and did not express, whether per Attornat', Guardianum, or how; and had Judgment; and Error was brought in this Court, and these Four Points were Resolved:

First, That a Writ of Error did lye out of the Petit Bag into this Court, upon an Error in Fact.

Secondly, That the Entry being General, it should be taken that the appearance was in propria persona.

Thirdly, That the Plaintiff being an Infant, tho' an Administrator, could not sue or appear, but by Guardian or Prochein amy.

Fourthly, That the Statute of Jeofails did not aid this Case, which expresses only the Defendant's appearing by Attorney.

As to the other Point, He inclined that the Action brought by them all was well enough: But he acknowledged that much might be urged against the Case of Hatton and Mascue; for the naming of them could signifie nothing, not being made parties to the Action. But he was not so much swayed by that Authority, because he held, that the Cause did not come well into the Exchequer Chamber, being a Scire facias, upon which he said no Writ of Error lay thither, tho' upon a Judgment, no more than upon a Recogni­zance, and said, They did joyn here, as it were, for Conformity. As if a Feme Infant be made Executrix, and Marries, the Admini­stration durante minori aetate ceases, tho' she be under 17, and she and her Husband shall Sue.

The Chief Justice was absent, being Sick; and so the Plaintiff had Judgment by the Opinion of Rainsford and Moreton.

Ward versus Rich.

WArd brought an Action against Hatton Rich de uxore ab­ducta, and keeping of her from him, usque such a day, which was sometime after the exhibiting of the Bill, and concluded contra formam Staturi.

After Verdict for the Plaintiff, it was moved in Arrest of Judg­ment, [Page 104] and the Declaration was held good notwithstanding the im­pertinent Conclusion of contra formam Statuti, there being no Statute in the Case.

Secondly, The Court Resolved, that Judgment should be stayed; for the Jury shall be intended to give Damages for the whole time mentioned in the Declaration: As in Trespass, with a Con­tinuando, to a day after the Writ brought, the Plaintiff shall not have Judgment after Verdict, which gives Damages by Intend­ment for the whole time declared for.

And Twisden said, These two Cases were Resolved: A Trades­man brought an Action in an Inferiour Court, for slandering of him in his Trade, by which he lost his Custom within the Iuris­diction of that Court, & alibi; and it was held maintainable not­withstanding the alibi.

The other was an Action brought upon the Sale of several things for divers Sums of Money quae quidem pecuniarum sum­mae attingunt ad 10 l whereas rightly computed they came but to 9 l The Jury gave Damages less than 9 l and it was held good: But if the Verdict had been for 10 l it had been naught.

The King versus Ledgingham.

AN Information was brought against Ledgingham, for that he being a man of an unquiet Spirit, communis perturba­tor & oppressor vicinorum & tenentium, had taken excessive Distresses of divers of his Tenants.

After Verdict for the King at the Assizes, it was said, That no Judgment could be given upon this Information, which was said to be defective both in matter and form.

It hath been often Ruled, that Communis oppressor, or such like General words, without particularizing Offences, was insufficient in an Indictment or Information, unless the word Com­munis Barrectator, which is of known signification in Law, and comprehends divers Crimes; and Twisden said, is as much as Common Knave, 9 Ass. 2. Communis latro, not good: Vid. Roll. 79. Moor 451. neither can an Information be exhibited for taking of excessive Distresses; for that was not punishable until the Statute of Marlebridge, cap. 4. which saith, that he that so Distrains shall be amerced, whereas upon an Information he must of neces­sity be fined, 2 Inst 107.

Again, It ought to have been expressed upon what Tenants the Distresses were taken, with their Names, otherwise it is too incertain. One was Indicted, for that he serving upon such a Grand Enquest, did reveal the Secrets of the King and himself. It was Resolved to be ill, because not expressed what Secrets, Moor 451. and of this Opinion was the Court in omnibus. Ante.

Pierson versus Ridge.

IN Replevin, the Defendant made Conusans as Bayliff to a Lord of a Mannor, who had a Court Leet by Prescription, and laid a Custom for such a Township to send one to be sworn Constable there, which not being done, a Fine was set, and this Distress taken for it. Vpon which it was Demurred; because no Custom was alledged to warrant the Distress: For tho' of common Right a Distress may be taken for a Fine in a Court Leet, that is, where it is imposed for such things as are of common Right incident to its Jurisdiction, as for Contempts, or the like: Yet where Custom only enables them to set a Fine, it cannot be Distrained for without Custom also, 11 Co. Godfrey's Case: And to this Opinion did the Court incline. Sed Adjor­natur.

Anonymus.

TWo Actions of Account were removed into this Court by Habeas Corpus, and Special Bail put in. And it was moved, that the Bail might be discharged, and Common Bail filed; because in an Account Special Bail is not to be put in. But it was said, the Plaintiff had declared in one in an Action upon the Case, and so prayed that the Bail might stand quoad that.

But it was Ruled, That the Bail should be discharged; and if the Plaintiff would have Special Bail, he must Arrest the Defendant again in an Action upon the Case.

Doctor Lee's Case.

DOctor Lee having Lands within the Level, was made an Expenditor by the Commissioners of Sewers; whereupon he prayed his Writ of Priviledge in this Court; and it was granted. For the Register is, Vir militans Deo non implicetur saecularibus negotiis; and the ancient Law is, Quod Clerici non ponantur in Officia; F.N.B. Clergy-men are not to serve in the Wars.

Jemey versus Norris.

ERror to Reverse a Judgment in an Assumpsit, upon a Quan­tum meruit for divers things sold.

It was assigned for Error, that the Declaration amongst the rest was for unum par Chirothecarum, and did not express what sort of Gloves they were, which are of much different prices, accord­ing to the different Leather they are made of. And Playter's Case, 5 Co. was cited, where Trespass for taking of his Fishes, was held [Page 106] not good, because not ascertainedb of what kind: Sed non alloca­tur.

Another of the things declared for was una parcella fili, which (as it was said) was utterly uncertain; and that was held to be naught. Tho' it was said, an Action was brought for taking away unum cumulum. Foeni, Anglicè a Rick of Hay, and not al­ledged how much it contained; yet held good. But in Webb and Washburn's Case an Action was brought for a pair of Hang­ings, and it was Adjudged against the Plaintiff, for the Incer­tainty.

Jones contra, and cited a Case in this Court 24 Car. 1. Green and Green, in Trover for six parcels of Lead, and notwithstanding the Incertainty the Plaintiff had Judgment. So in Trover for a Trunk de diversis Vestimentis, and did not say what Garments; and yet held good. But admitting it should not be good in Trover; yet it is well in this Action. 'Tis the Common course to declare sur Indebitatus pro mercimoniis, and never express what they are.

And the Court were of Opinion, that the Plaintiff was to have Judgment; for it is an Action much of the same nature with an Indebitatus.

And Twisden said, Where the Promise is to pay Quantum meruit, he knew not why the Plaintiff might not declare upon an Indebitatus in a certain Sum, and that he might prove the value upon the Evidence; and if such a Case came to be tried before him, he would have a Special Verdict found in it.

The Court said, Such an uncertain Declaration would hardly be good in Trover or Replevin, and held the Case of the six Parcels to be strange; and for the Trunk, that an Action lies; for that the things contained in it were alledged but as matter of aggra­vation of Damages.

Vid. the Case of Taylour and Wells, ante: Trover de decem paribus velorum & tegularum, Anglicè, Ten pair of Curtains and Vallance.

Wilson versus Armorer.

IN Debt against the Heir, and Reins per discent pleaded, the Case upon Special Verdict was thus: The Ancestor made a Feoffment of a Mannor to divers uses, excepting two Closes for the Life of the Feoffor only; and whether those two Closes did discend, was the Point referred to the Iudgment of the Court.

And it was Adjudged, That they did discend, either for that the Exception was good; tho' the latter part of the Sentence, (viz.) for the Life of the Feoffor only, was void, and therefore to be rejected; or, if the whole Exception were void, because one intire Sentence.

[Page 107]Yet they all agreed, that there was no Vse limited of those two Closes which were intended to be excepted; for the Vse was limited of the Mannor exceptis praeexceptis, which excluded the two Acres. For altho' there were not sufficient words to except them, yet there was enough to declare the intention of the Feoffor to be so.

Anonymus.

AN Indictment for Erecting of a Cottage for Habitation, contra Statut' 31 Eliz. cap. 7. was quashed, because it was not said that any had inhabited in it; for 'tis no Offence before, per Rainsford & Moreton, caeteris absentibus.

Robson's Case.

A Prohibition was prayed to a Suit for Tythes by the Parson, upon a Suggestion of a Modus paid to the Vicar, and that the Vicaridge had time out of mind been En­dowed.

Coleman moved for a Consultation, because the Endowment of the Vicaridge was not proved by two Witnesses within six Months, according to the Statute.

But it was denyed; for that part of the Suggestion is not to be proved by Witnesses, but only the payment of the Modus. And it was said, If the Suggestion consisted of two parts, it was sufficient to produce one Witness to the one, and another to the other.

Dacon's Case.

DAcon was presented in the Court Leet, for refusing the Office of Constable, and Fined.

It was moved to quash it, because it expressed the Court to be held infra unum mensem Sancti Michael' (viz.) 12 November, and so the Day shewn above a Month after Michaelmas. And it is necessary to set down the precise Day, for it may else be upon a Sunday, and yet within a Month after Michaelmas; and for this cause the Court held, that it must be quashed.

Error.

AN Outlawry was Reversed, for that the Proclamations were Returned to be ad comitat' meum tent' apud such a place in Com' praedict', and not said, pro Comitatu: For anciently one Sheriff had two or three Counties, and might hold the Court in one County for another.

Calthorpe versus . . . .

IN Debt for Rent the Plaintiff declared, that he let the Defendant such Land, anno 16 of the King quamdiu ambabus partibus pla­ceret; and that anno 16 the Defendant entred, and occupied it pro uno anno tunc proximê sequent': and because the Rent was behind pro praedict' anno finit' 18 he brought the Action. Vpon which it was Demurred.

Because the Rent is demanded for the Year ending 18, and it is not shewn that the Defendant enjoyed the Land longer than anno 17. And in Debt for Rent upon a Lease at Will, Occupation of the Tenant must be averred.

To which it was Answered,

That it is said, Pro praedicto anno, which refers to the Year mentioned before, which was next following the Lease, and it might be said finito anno 18, for so it was ended then, or at any time after.

And the Court said, It would be clearly good after a Verdict: But being upon a Demurrer they would Advise.

Anonymus.

AN Indictment for not performing an Order of the Justices of the Peace, concerning a Bastard Child.

It was moved to quash it, because it did not conclude contra pacem. But it was held, that ought not to be, it being but for a Non feasans.

An Indictment of Forcible Entry was quashed, because it al­ledged the party to be seized and possessed, and so uncertain which.

Monnington versus William.

IN a Replevin the Defendant avowed for a Rent charge, and set forth, That the Plaintiff granted a Rent to J. S. in Fee, who granted, bargained and sold it una cum arreragiis to him, and shewed the Indenture to be Inrolled within six Months, virtute cujus, [Page 109] and the Statute of Uses, he was seized, and for a years Rent since the Assignment avowed.

The Plaintiff replies, and Traverses the Grant of J. S. prout, and found for the Avowant, and moved in Arrest of Judgment by Jones,

First, That here is an impossible Issue, which comprehends as well the Grant of the Arrears (which cannot be) as the Rent.

Secondly, He Intities himself by Bargain and Sale, and the Statute of Uses, and doth not shew that it was in Consideration of Money; and otherwise the Rent cannot pass without Atturn­ment, 3 Cro. 166.

But the Court gave Iudgment for the Avowant.

As to the first, The pleading the Arrears to be granted is al­together void, and does no harm, in regard the Avowry is ex­presly for Rent Arrear after the Grant.

And for the second, The Court held the pleading good after a Verdict; and it shall be intended, that Evidence was given of Money paid. As a Grant of a Reversion pleaded, without At­tornment; or a grant of a Rent, and not expressed to be by Deed; yet a Verdict will help those defects, Huttons Rep. 54.

Note, Twisden said, where a man in pleading sets forth his Title by a Conveyance, in which are the words Give, Grant, Release, Con­firm, Bargain, Sell, &c. he must express to which of them he will use it.

Addams versus Guy.

ERror to Reverse a Judgment given in the Court at Bristol, in Debt against the Defendant as Executor to J.S. who decla­red upon a Mutuasset of him so much, because Debt lies not a­gainst an Executor upon a simple Contract.

Sed non allocatur, He agreeing to the Action, and suffering Iudgment to pass against him.

Secondly, That he set forth, that the Testator Mutuasset, which properly signifies to lend and not to borrow, and it ought to have been Mutuatus esset.

But the Court affirmed the Iudgment; and held, that either might be expounded to borrow.

Anonymus.

AN Administrator brought Trover and Conversion, and decla­red, That the Intestate at the time of his Death was possessed of divers Goods, and that after his Death, and before Administration committed, they came to the Defendants hands, who converted them.

[Page 110]Vpon Not guilty it was found for the Defendant, and prayed that he might have Costs; and the Court held that he ought to have them, the Conversion being since the Death of the Inte­state.

Sir Thomas Pettus Case.

IT was moved to quash an Indictment of Manslaughter against him, for that it is said to be taken coram Coronatoribus Comi­tatus & Civitatis Norwici, at Bucthorp in the County of the City, per Juramentum hominum de Civitate Norwici.

Whereas the Jury ought to have come from the County and City of Norwich, for they shall not be intended to be coexistent, especially in an Indictment.

As if the Caption of an Indictment be at Dale, and the Jury come de Parochia de Dale, it is good cause to quash it; yet in an Action they should be intended the same: So it is sufficient to put the County in the Margin of the Declaration in an Action, but not so in an Indictment, 1 Cro.

Again, By the Statute de Coronatoribus, the Jury ought to come from the four next Vills.

Of the first Exception the Court doubted.

But to the second Twisden said, it need not be returned upon the Indictment, that the Jury came from the four next Vills.

But they would not quash the Indictment upon Motion, for they said it was not their course to do so in Case of Manslaugh­ter; but ruled the Party to Plead to it, tho' it was shewn he had been Tryed at the Assizes upon an Indictment of Murder, for the same Killing, and found Guilty of Manslaughter.

The King versus Clapham.

A Mandamus was prayed to the Lord President, and Council of the Marches to admit Clapham to the Exercise of the Office of Deputy Secretary.

And it was returned quod tempore receptionis brevis non fuit constitutus Deputatus.

It was said, That one which claimed to be Deputy, his Au­thority being revocable, could not pray a Mandamus.

But to that it was answered, That the Mandamus was at the Suit of Mr. Win; and it set forth how he had the Office of Secretary, exercend' per se vel sufficientem Deputatum suum; and that they had refused this Clapham, whom he had appointed his Deputy.

[Page 111]And it was resolved, That the Mandamus was well awarded, for he had no other remedy to have his Deputy admitted. And whereas it was said, being an Officer belonging to the Court, they are to judge of his sufficiency, and so have power to refuse him.

It was answered to, and so resolved, That then they ought to have returned, that he was insufficient.

And it was also resolved by all the Court, That the Return being, that non fuit tempore receptionis brevis Deputatus constitutus, was naught; for if he were made his Deputy before, the Return was true, unless he made him his Deputy at the very instant of the Receipt of the Writ; and Returns must be certain, because there is nothing can be pleaded to them.

Anonymus.

AN Indictment for not performing an Order of the Justices, for payment of a Poors Rate.

It was moved to quash it, because it did not conclude, Con­tra pacem: Sed non allocatur, because it was not for a Male Fesans, but a Non Fesans.

Horsam versus Turget.

MIch. 22 Car. 2. Rot. 687. Debt upon a Bond.

The Defendant demands Oyer of the Condition, which was to perform an Award; and sets forth, that there were divers Accounts, &c. betwéen J. S. Testator of the Plaintiff, and the Defendant; and they submitted all Controversies to the Award of such an one, and that he awarded, that the Plaintiff should deliver certain Goods, of which the Testator died possessed, to the Defendant; and that the Defendant should pay unto the Plaintiff 320 l And then sets forth the custom of Foreign At­tachments in London; that if a Suit were commenced against the Executor of any person, any Debt which was due to the Te­stator tempore mortis suae might be attached; and then sets forth according to the common form, how this 320 l was attached, &c. and Avers, that there were no other Controversies, Differences or Matters between the Plaintiff and Defendant, but what con­cerned the Testator of the Plaintiff and him as his Executor only.

The Plaintiff replies, That the Defendant had not paid the 320 l according to the Award, &c. upon which the Defendant Demurred.

And whether this Money were Attachable as a Debt due to the Testator, tempore mortis suae was the Question.

[Page 112]It was argued by Winnington, That it was. For it appears by the Averment, that it was awarded to be paid meerly upon the Testators account, and it is but as it were a reducing the Testators Debt to a certainty; for an Award being no Record or Specialty will not alter the nature of the Debt; and that clearly it should be Assets in the Executors Hands; and the Custom of London was to have a liberal Construction.

Pemberton contra. It doth not appear, That there was any Debt due to the Testator: There might be Covenants, or other Matter between them, which shall be rather intended than Debt, as strongest against the Plaintiff; if there were, the nature of the Debt is altered, for an Award may be pleaded in Bar to an Action brought upon the Original Debt.

Also this must have béen sued for in the Debet and Detinet, and not in the Detinet only; so it is not a reducing the Debt to a certainty; as where an account is made upon Debts by sim­ple contracts, or where an Executor gives time for payment of a Bond due to the Testator, this is still Attachable, 1 Rolls 551.

He denied it to be Assets. If it were, the Administrator de bonis non might sue for it after the Executors death, which clearly he could not do; and the Executor was chargeable only in pro­portion to the Debt extinguished, and not according to the Sum Awarded, or at least it could not be Assets before recovered; if it were Assets it did not follow it should be Attachable, for if an Executor Recovers in Trespass, for taking away the Testators Goods, the Damages shall be Assets; yet they are not Attacha­ble: So Damages recovered upon Covenant made to the Te­stator.

He said it would be very inconvenient that this Money should be attached, for the Executor was liable to a Devastavit upon this matter, and yet should have no remedy for the Sum Awarded.

Again, It would be Attachable in two respects, both as the Executors Debt, (for so clearly it is) and as the Testators Debt, and the Bond for performance would be Attachable for the Exe­cutors Debt, and the Sum Awarded for the Testators. He said all Customs ought to be taken strictly, and this was clearly out of the words, as being no Debt due to the Testator tempore mortis suae. And here it is pleaded, That it was Commanded by the Court to the Officer to Attach the Defendant by a Debt due to the Testator at the time of his Death, so no Authority to At­tach this Debt; and if it were by Law Attachable, the Command ought to have béen Special.

[Page 113]The Court were all of Opinion, That this was not Attacha­ble as the Testators Debt; for then the Administrator de bonis non might Sue for it. And they held it to be like the Cases where the Executor takes Bond for a Debt due to his Testator, or where he sells the Goods, the Money for which they are sold cannot be Attached; and here the Award is made of this Sum, in Con­sideration of conveying to the Defendant the Goods of the Te­stator, and releasing of his Debts, which séems to be all one with the other Cases.

And so they gave Iudgment for the Plaintiff.

Error.

A Judgment out of an inferiour Court was reversed, because being by default the enquiry of Damages was only by two Jurors, and Custom alledged to Warrant it.

And it was resolved by the Court, That there cannot be less then twelve, though the Writ of Enquiry saith only per Sacra­mentum proborum & legalium hominum, and not duodecim as in a Venire.

Note, There were divers Recognizances take before the Lord Chief Justice Keeling; who died before his Hand was set to them.

It was moved by Coleman, that they might be Filed.

But the Court said a Certiorari must go to his Executors to certifie them, and doubted whether they were compleat Records.

If a Warrant of Attorney be given after the continuance day, to enter up a Judgment as of the Term preceding; this may be well enough, if it be dated within the Term; but it cannot be so, if such a Warrant be given to confess a Judgment generally, and dated after the Term.

Anonymus.

A Prohibition was prayed by one, who being a Churchwar­den, was tendred an Oath by the Court Christian, to pre­sent according to the Bishops Articles, which he refusing to take, was Excommunicated.

Now, for that some of the Articles were to present Filthy Tal­kers, Revilers and Common Sowers of Sedition amongst Neigh­bours, which were general Terms, and might be understood to comprehend things out of their Iurisdiction, the Court conceived a Prohibition ought to go as to them.

But he should have first pleaded there, quod non tenetur respon­dere as to those matters, and upon their refusal to have prayed a Prohibition.

Elpicke versus Action.

AN Action of Trover was brought de diversis vestimen­tis.

And held not to be good, because not expressed what kind of Garments.

But 7 Jac. Emery's Case, where Trover was brought for a Library of Books, and held to be good without expressing what they were; because to set down the particular Books, would make the Record too pro­lix. Vid. 3 Cro. 164. and Pl. Com. where a man pleaded that he was chosen Knight of the Shire, per majorem numerum, and held to be good.

Barnard versus Michel.

IN an Action of Debt, the Plaintiff declared upon a Deed com­prehending divers Covenants, for the performance of which the Defendant obliged himself in the penalty of 40 l and sets forth that the Defendant had broke the Covenants.

The Defendant pleaded non est factum, and it was found for the Plaintiff.

And it was moved in Arrest of Judgment, That though the Issue was found for the Plaintiff; yet he having assigned no Breach, no Cause of Action appeared upon the Record; so he could have no Judgment.

For if the Declaration be insufficient, let the Defendant plead what he will, yet Iudgment shall not be given against him.

Indeed if the Action had béen brought upon a Bond Conditi­oned for the performance of Covenants, and non est factum had béen pleaded; no Breach needed to have been assigned, for then the Declaration is only upon the Bond, without mentioning any thing of the Condition.

[Page 115]But here the Breach of the Covenant is, as it were a Condi­tion precedent, to Entitle him to the Penalty; and here the de­claring that he broke the Covenants without shewing which, or how, is altogether insufficient, though the Defendant who pleads in the Negative, might have pleaded non infregit conventiones. Vid. Rastals Entries 162. Pl. Com. 5. A President just agreeing to this Case.

But the Opinion of the Court inclined for the Plaintiff here. Sed Adjornatur. Vide Postea.

Anonymus.

A Mandamus was prayed to the Ecclesiastical Court, to Swear two Churchwardens elected by the Parish, surmising that so was the Custom in that place; but that the Bishops Officers had refused to admit them, upon pretence that the Parson ought to chuse one.

And it was granted. Vid. 2 Rolls 106, 107. 3 Cro. 551, 589. such a Writ granted.

The Case of the City of London and Coates.

COates who was Imprisioned in Newgate, by the Court of the Lord Mayor and Aldermen, brought an Habeas Corpus, and the Sheriffs returned, that the Custom of the City was, That if any Freeman hath Forestalled any Fish, coming to any Market within the City, and complaint made thereof to the Court of Al­dermen, and he appearing there confessing the same, and they or­dain that he shall desist from such Forestalling, and he will not promise to obey; but declares in Court, That he will not obey their Order, That the Court there had time out of mind used to Commit such Freeman, until he signified to the said Court, that he would conform himself.

Then it is Returned, That complaint was made to the said Court, that this Coates had Forestalled a great number of Lob­sters; whereupon they caused him to appear, which he did, and con­fessed the same, and they ordained, that he should desist from such Forestalling; but he said Obstinately and in Contempt of the Court, That he would not obey their Order; whereupon they com­mitted him to Newgate, until he should signifie to the Court, that he would conform himself, or otherwise he delivered by due course of Law.

The Return being Filed.

It was moved by the Attorney General, That is was insuffici­ent; for a Custom to commit a man for Forestalling is void, and that Offence was always Bailable, and so it appears by the [Page 116] Register; But here the Commitment is to remain in Prison, with­out Bail or Mainprise.

Also the Commitment is upon a Complaint without Oath, which ought not to be; neither ought they to extort a Promise from him, to observe their Order, admitting it to be Legal, for an Oath can­not be imposed upon a Man to keep the Law.

Besides, The Custom is absurd, to Commit a Man to Prison until he submits to the Court; whereas a Man in Prison cannot come into Court to make such Submission; and then suppose they will keep no Court, must a Man lie in Prison whilest they do?

Then the Custom as it is laid, reserves the discharge of him only to themselves; for it is said, or by due course of Law.

This Imprisonment looks in the Face of Magna Charta, which saith nullus liber homo Imprisonetur, &c. in all Offences Finable, the Imprisonment is only to be until the Fine is paid; if the Fine be tendred, there is to be no Imprisonment at all, and so resolved in Parliament, Br. tit. Imprisonment 100.

To this it was answered by Jones on the other side, That the Imprisonment in this case was not for Forestalling, but for the Contempt to the Court.

It is returned that he confessed the Fact, and yet declared that he would not conform himself to the Order of the Court; the Pro­ceeding is very mild, not to punish for an Offence unless com­mitted after an Admonition in Court. It is implied in the Custom, That he may be delivered by due course of Law, it is sufficient to express that in the Commitment, and so it is.

Also he cannot be prejudiced by the deferring of Courts, for the Custom is returned to keep the Court of Aldermen twice a Wéek.

It is not that he shall come in person and submit to the Court, but that he shall signifie his conformity to the Court, which may be done by Letter or Message; and it is returned, that he did not by any means submit himself.

Twisden, The Custom doth not here come in Question, The Com­mitment is returned to be for a Contempt to the Court; It must be allowed they have such power, for they are a Court of Record. Langham was Committed, for refusing to take the Oath usually administred to Sheriffs; and resolved to be good, because it con­cerned the Government. The City hath the Regulation of Trade, and Orders made by them, that one Man should not use the sign of another, and for distinguishing Trades, (Viz.) That a Plaisterer should not use the Trade of a Bricklayer, and such like, have béen allowed.

Wherefore the Court remanded the Prisoner, he promising to make submission at the next Court, and the Sheriff promising he should be discharged thereupon.

Phillips versus Kingston.

HIll. 22 & 23 Car. 2. In an Action of Slander the words were, He hath broke three or four of his Fathers Ribbs, of which he shortly after died, and I will complain to a Justice of him: He may be hang'd for the Murder altho' it were done twenty years since.

After Verdict for the Plaintiff, it was moved in Arrest of Judg­ment, that he did this hurt to his Father against his will, as it might be intended; and tho' the Defendant said he might be Hanged for it, that is but his Iudgment and Collection thereupon. As Jacob and Mills's Case, 2 Cro. 343. where the words were, Thou hast poysoned Smith, and it shall cost me an hundred pounds but I will have you hanged for it. And it was Resolved that an Action did not lye, because it might be unwillingly done, Hob. 6.

Also it is not averred that the Father was dead, and that is necessary; for otherwise it shall be taken that he is alive, and then 'tis no Slander; and so is Yelverton 21 and Hob. 6.

But the Court held, That the Plaintiff must have his Judgment; for taking all the words together, the Defendant must necessarily intend a murdrous Killing; and for the not averring that he was dead, Twisden said, the latter Opinions have all been, that this is not necessary; and the Action lies, unless it appears upon the Record that the party is alive.

Anonymus.

IN an Action for Words, the Plaintiff declared that he was a Woollen Draper; and the Defendant said of him, You are a cheating Fellow, and keep a false Book.

After Verdict for the Plaintiff it was moved in Arrest of Judg­ment, that the words might not be intended to relate to his Trade; for they were capable of another sense, and there was no collo­quium of his Trade.

Sed non allocatur: For they must be intended of a Debt-Book which Shop-keepers keep, and to say such an one keeps a False Book it is a great slander to him in his Trade. Vid. 1 Cro. 403.

Twisden cited a Case, Where Roberts an Attorney brought an Action for saying, Go tell the black Knave Roberts, That I will teach him, or any Attorney in England, to sue out a Writ against me, and he had Judgment; for it was as much as to call him Knave Attorney, Hill. 22 & 23 Car. 2. Rot. 1426.

Methin and the Hundred of Thistleworth.

AN Action was brought upon the Statute of Winton.

The Defendants pleaded, that they made Hue and Cry, and that within 40 Days they took one Dudley, which was one of them that did the Robbery, and had him in custody.

The Plaintiff Replied, That Dudley was not taken upon their fresh pursuit modo & forma.

And upon this Issue the Jury find a Special Verdict to this effect:

That the Hundred made Hue and Cry, and that Sir Joseph Ash finding Dudley in the presence of Sir Philip Howard, a Justice of the Peace of Westminster, at his House in Westminster, the said Sir Joseph being an Inhabitant in the Hundred of Thistleworth, charged Dudley with this Robbery before Sir Philip, who promised he should appear at the Sessions at the Old Baily.

And whether this be such a Taking as is put in Issue, they referred to the Iudgment of the Court.

Jones for the Plaintiff Argued, That in this Case there doth not appear to be any Taking at all, but only a Discourse between Sir Joseph Ash and Sir Philip Howard. As admitting the Issue were, Whether a man were Arrested or no; and it should appear upon Evidence that one should come to the Sheriff and declare, That he had a Writ against such a man then present; and upon this the Sheriff should say, I will take his word for his Appear­ance; this clearly could not be taken for an Arrest.

Again, The Issue is, Whether he were taken upon the fresh pursuit of the Hundred; and it doth not appear by the Verdict that there was any Hue and Cry made this way, and it might be ceased before this time: But it seems rather, that Sir Joseph Ash found him by accident.

But the Opinion of Hales Chief Justice, Twisden, Rainsford and Moreton, was, that Judgment ought to be given for the Defendant: For the charging of Dudley with the Robbery in the presence of a Justice of the Peace was clearly a Taking within the Statute.

For being in the presence, which the Law construes to be under the Power or Custody of the Magistrate, it would have been vain and impertinent to have laid hold of him; and it shall be intent­ed, that this was upon Fresh pursuit: For when the Verdict refers one Special Point to the Iudgment of the Court, all other matters shall be intended.

[Page 119]And the Chief Justice said, That if the Hue and Cry was made towards one part of the County, and an Inhabitant of the Hundred apprehended one of the Robbers within another, yet this was a Taking within the Statute.

Hornsey (Administrator of Jane Lane) versus Dimocke.

THe Plaintiff, as Administrator of Jane Lane, brought an Assumpsit, and declared, that he had formerly deposited such a Sum in the Defendants hands, for the use of the Intestate Jane Lane; in Consideration whereof the Defendant promised to the Plaintiff, that he would pay it her; or if she died before 18 years of Age, that he would pay it to her Executors: And shews, that she died before 18, and that he had not paid it to the Plaintiff, her Administrator, licet saepius requisitus.

Vpon non Assumpsit, a Verdict was for the Plaintiff.

It was moved in Arrest of Judgment, that the Plaintiff brought this Action as Administrator, which ought to have been in his own right; for the Promise was made to him.

Sed non allocatur: For if a man names himself Executor or Administrator, and it apears the Cause of Action is in his own right, it shall be well enough, and he calling himself Executor, &c. is but Surplusage. But here it seemeth Jane Lane might have brought an Assumpsit, because she was the party to whom the Money was to be paid. So it is good either way.

It was further Objected, That it was not averred, that the Defendant did not pay the Money to Jane Lane during her Life.

Sed non allocatur: For 'tis aided by the Verdict. As the Chief Justice said a Case was Adjudged, where an Assumpsit was brought upon a Promise to pay Money to two or either of them; and declared that the Money was not paid to the two, and not said, or either of them; yet Resolved to be good after Ver­dict.

Matthewes versus Crosse.

IN Debt for Rent the Plaintiff Declared, That by an Indenture made in the Parish of St. Mary Undershaft, London, he Let an House to the Defendant, situate in parvo Turris monte, reserv­ing so much Rent, &c.

The Defendant pleads, That before the Rent incurred, the Plaintiff entred into a certain Room of the said House, apud parvum Turris montem praedict', and so suspended his Rent, upon which it was Demurred.

[Page 120]And it was shewn for Cause, That no place was alledged where the Entry was, but said to be at Little Tower-Hill, which cannot be intended a Vill. And a Case was cited of an Indictment in this Court, of a Fact laid to be done at White-Hall, and quashed for want of Place. And to this the Court inclined; but the Matter was ended by Comprimise'.

Anonymus.

A Prohibition was prayed to a Suit for a Pension in the Ecclesiastical Court, surmising that the Lands out of which it was demanded were Monastery Lands, which came to the King; and that he granted the Lands, &c. under which Grant the Plaintiff claims; and that he Covenanted to discharge the said Lands of all Pensions, &c. and this upon the Statute of 34 H. 8. cap. 19. which appoints the Suit to be for Pensions in such cases in the Court of Augmentations, and not elsewhere.

But the Court would not grant it, until the Letters Patents of Discharge were produced, being a matter of Record.

But where the Surmise is of matter of Fact, it is sufficient to suggest it.

And it was said by the Court, That Pensions, whether by Pre­scription or otherwise, might be sued for in the Ecclesiastical Court; but if by Prescription, then there was also Remedy at the Common Law. F.N.B. 50. 1 Cro. 675.

Davis versus Wright & al'.

HIll. 22 & 23 Car. 2. Rot. 701. In an Assumpsit the Plaintiff declared, That his Father gave him by his Will, 3 l per annum during his Life, and that he was about to Sue for it; and that the Defendants being Executors to the Father, in Consi­deration that the Plaintiff would forbear to commence a Suit against him for it, promised to pay him.

The Defendants plead, That the Testator was indebted in divers Sums, and ultra to pay them he had no Assets.

To this the Plaintiff demurred; for that by this Promise the Defendants have made it their proper Debt.

But it was said on the other side, That if there were no Assets, there was no cause for the Plaintiff to have commenced a Suit: And to stay a caussess Suit can be no Consideration;1 Cro. 804. Yelv. 84.184. as the Case of Smith and Johns, 2 Cro. 257. where one having married an Executrix, after her decease promised J. S. that if he would forbear a Suit against him for a Legacy, he would pay it.

[Page 121]It was held to be a void Promise, being in no wise liable to be sued after the Death of his Wife: And the Opinion of my Lord Coke, 9 Rep. 94. in Bane's Case is, That an Executor shall not be charged with such Promise, unless he hath Assets.

But the Court Resolved for the Plaintiff: For it is not material whether the Defendants had Assets or no at the time of the Pro­mise; for by the Promise they caused the Plaintiff to desist, who peradventure at that time was prepared to prove Assets; and relying upon such Promise might be much to his prejudice, if he could not afterwards recover upon it.

But the Chief Justice said, If it had appeard upon the Declara­ton that there were no Assets, the Plaintiff by shewing that would have destroyed his Action.

Vere versus Smith.

IN Debt upon an Obligation.

The Condition recited, that the Defendant served the Plaintiff as a Brewer's Clerk, and that if he performed such Cove­nants, &c.

The Defendant pleads, performavit omnia.

The Plaintiff Replies, That one of the Covenants was to give the Plaintiff a true Account of all such Moneys as the Defendant should receive, &c. whensoever he should be thereunto requested; and alledged, that 30 l came to his hands, and that he requested him to give an account of it, which he refused to do.

The Defendant Rejoyns, confessing the Receipt of the said Money, but saith, That before Request made by the Plaintiff, he laid it up in the Plaintiffs Warehouse, and that certain Malefactors (to the Defendant unknown) stole it away, & hoc paratus est verifi­care. And to this the Plaintiff Demurs generally.

And Jones Argued, That the matter contained in the Rejoynder was a Departure from the Bar, for it doth not amount to an Account, but rather an Excuse or Discharge of himself, why he should not account.

Again, He ought not to have averred his Plea, but to have concluded to the Country. For the Plaintiff in his Replication having alledged, That he gave no Account; and the Defendant in his Rejoynder setting forth, That he did give an Account, there is an Issue joyned; wherefore it ought to have been concluded, & de hoc ponit se super Patriam.

But these Matters were Over-ruled.

For as to the first, the Court held it no Departure, but a For­tification of the Bar; for shewing that he was Robbed, is a giving an Account.

[Page 122]And as to the second, the Conclusion is proper; because the Defendant alledges New Matter, and therefore ought to give the Plaintiff liberty to come in with a Surrejoynder and answer to it; for he doth not only say, that he gave an Account, but sets forth the Special Matter, how.

Wherefore the Court gave Judgment for the Defendant.

Note, A Clerk of the Court must appear de die in diem, to any Mat­ters against him on the Crown side, as well as on the Plea-side.

Reynell versus Heale.

AN Information was brought upon the New Statute against Conventicles; for that the Defendant being a Justice of the Peace in Devonshire, and Complaint being made to him by Rey­nell of a Conventicle, he refused to go to the place to suppress it; and sets forth three Omissions of that kind, and that the Statute Enacts, That a Justice of Peace, for every such neglect of doing his Duty, shall forfeit 100 l the one Moiety to the King, the other to the Informer; & unde actio accrevit for 100 l to the King and himself.

The Defendant pleads non debet the said 100 l to the Informer, nec aliquam inde parcellam, & de hoc ponit se super Patriam, & praedict' Reynell similiter.

And upon this Issue Verdict was given for the Informer.

Jones moved in Arrest of Judgment, That he conceived there were no words in the Act to oblige the Justice of the Peace upon such Information, to go in person to the Place where such Meeting is; and 'tis not said here, that he refused to grant a Warrant, or the like.

But he did not much insist upon that, but moved that the Issue was not well joyned; for it is only between the Informer and the Defendant, and so the Plea is quod non debet to the Informer, and no mention of the King; whereas the Action is qui tam, and the Act gives the Moiety of the Penalty to the King.

The Court said nothing to the first matter, but held clearly that the Issue was misjoyned; and said, that a Repleader ought to be awarded.

Polexfin and Ashford versus Crispin.

HIll. 22 & 23 Car. 2. Rot. 225. The Plaintiff brought Trespass, Quare pisces suos cepit in separali Piscaria.

Vpon Not Guilty pleaded, and Verdict for the Plaintiffs, it was moved in Arrest of Judgment, that the Plaintiffs ought not to have called them Pisces suos, unless they had been in a Trunk or Pond: [Page 123] For there is no more property in Fishes in a Several Piscary, than in a Free Piscary.

In an Action for taking of Conies in a Warren, 5 Co. 34. b. F.N.B. 192, 193. 2 Cro. 195. he shall not say Cuniculos suos; and this is such a default as the Verdict shall not aid. Sed non allocatur.

For the Chief Justice said, it might be intended a Stew Pond, which is a mans Several Piscary; and after a Verdict the Court shall admit any Intendment to make the Case good.

And Twisden cited a Case which was in Trespass, Quare Phasia­nos suos cepit, and the Plaintiff had Judgment after Verdict; for it shall be intended they were dead Pheasants. And the Case of Child and Greenhill, 3 Cro. 553. is the same with this.

But the Court held, that it had been good upon a Demurrer, by reason of the local Property: And so is the Register.

Hoskins versus Robbins.

IN Replevin the Defendant avowed for Damage feasant.

The Plaintiff Replies and saith, That the place Where is parcel of the Waste of such a Mannor, within which Mannor there are Copyholds demisable time out of mind; and that the Copy­holders have had time out of mind the sole Feeding of the said Waste; and that J. S. being a Copyholder of the said Mannor, Licensed him to put in his Cattel.

The Defendant traverses the Prescription, and it was found for the Plaintiff.

Levins moved in Arrest of Judgment that Prescription to have the sole Feeding, 1 Cro. 434. 2 Cro. 256. whereby the Lord shall be excluded from all the benefit of his Soyl, is not allowable; and the Lord cannot in this case ever make any profit of the Mines, for he may not Dig.

'Tis true, a Prescription may be, to have the sole Feeding from such a Day; for there the Owner hath his time also.

Again, He alledges a Custom of Dimising Copyholds, and doth not say for what Estate, neither doth he name any Copyholders. Also, he should have averred, that the Beasts were levant and couchant.

One prescribed to have omnes Spinas, yet laid them to be spent in a certain House. And the Verdict shall not help the Defect, as this Case is; but if the Copyholder had pleaded so himself, it should: For after a Verdict it is intended they were levant and couchant; but that cannot be in case of a Stranger Iustifying by Licence.

He took another Exception also, That a Licence was pleaded here, and not shewn to be by Deed, as it appears it ought to be, 2 Cro. 575.

[Page 124]As to the first it was Answered, That this Prescription did not take all the Profit from the Owner of the Soyl, for there might be Trees and Bushes growing; and if any one should Dig the Soyl and discover Mines, the Lord should recover Damage in respect of the Mines. Such an Interest as this might commence by Grant, and therefore lies in Prescription. The same Objection might be made against the sole Feeding for some part of the Year: for the property of the Soyl remains in the Lord at that time also, when the Profit is divided from him, and it may be as well allowed for a longer as a shorter time; this is no more than the Herbage or Vesture of the Land. And Prescription to dig Turves cuts as deep into the Profits; and yet that may be in one, and the Soyl in another.

As to the second, It is not needful to shew for what Estates the Copyholds have been demised; for it is not laid by way of Pre­scription in them (for then it would be material to shew that they had such Estates, as might supports a Prescription;) but as a Custom in the Mannor; and to have named them would have made a Re­pugnancy, (viz.) that such particular Copyholders had the sole Feeding time out of mind, 3 Cro. 311.

Yelv. 187.Neither is it needful to alledge, that the Beasts were levant and couchant, in regard that he claims the sole Feeding, which may therefore be with what Beasts he pleaseth.

And it is not needful, that the Licence should in this case be by Deed; for it passeth no Interest, and serves but for an Excuse of Trespass; and 'tis for no certain time, but only pro hac vice.

The Opinion of the Court inclined for the Plaintiff. Sed Adjor­natur. Vide postea.

The Duke of Richmond versus Wise.

IN an Ejectment the parties had a Trial at Bar, and a Verdict for the Plaintiff.

The Court were moved to set aside this Verdict, upon an Affidavit made of these Misdemeanors in the Jury, (viz.) That they had Bottles of Wine brought them before they had given their Verdict, which were put in a Bill together with Wine and other things, which were eat and drank by the Servants of the Jury, and the Tipstaves that attended them at the Tavern where they were con­sulting their Verdict.

That this Bill (after the Verdict given) was paid by the Plaintiffs Solicitor; and that after they had given up their Privy Verdict, they were Treated at the Tavern by the Plaintiffs Solicitor, before their affirmance of it in Court.

Counsel being heard on both Sides, as to these matters, the Court delivered their Opinions seriatim, that the Verdict should stand.

[Page 125]They said they were not upon a discretionary setting aside of the Verdict, as when the Jury goes against Evidence; but whether these miscarriages shall avoid it in point of Law.

They all agreed, That if the Jury eat or drank at the charge of the party for whom they find the Verdict, it disannuls their Verdict; but here it doth not appear, that the Wine they drank was had by the order of the Plaintiff, or any Agent for him.

'Tis true, in regard his Sollicitor paid for it afterwards, it doth induce a presumption that he bespoke it; but that again is ex­tenuated, by its being put into a Bill with other things that were allowable; and if the Verdict should be quashed for this Cause, it must be entred upon the Roll, 1 Cro. 616. that it was for drinking at the Plaintiffs charge, and it is not proved, that this Wine was pro­vided by him.

And as to the other matter, That they received a Treat from the Plaintiff after their Privy Verdict given, and before it was given up in Court, that shall not avoid their Verdict.

But if the Defendant had treated them, and they had changed their Verdict, as they might have done in Court, it should then have been void, Co. Lit. 227. b. It after the Jury be agréed on their Verdict, (which the Chief Justice said must be intended, such an Agréement as hath the signature of the Court put up­on it, (viz.) (A Privy Verdict,) They eat and drink at the charge of him for whom they do pass it, It shall not avoid the Verdict, and if it should, The Court said most Verdicts given at the Assizes would be void; for there 'tis usual for the Jury to receive a Col­lation after their Privy Verdict given, from him for whom they find. But such practice ought not to be, and if any of the Parties, their Attorneys or Sollicitors speak any thing to the Jury, before they are agreed relating to the Cause, (viz.) That it is a clear Cause, or I hope you will find for such an one, or the like, and they find accordingly, it shall avoid the Verdict; but if words of Sa­lutation, or the like pass between them, (as was endeavoured to be proved in this Case) they shall not. Also if after they depart from the Bar any matter of Evidence be given them, as De­positions or the like, tho' the Jury swear they never looked on them, yet that shall quash their Verdict. But they all held in this Case, that tho' there was great matter of Suspition, yet there was not matter of clear proof (as there ought to be) sufficient to disannul this Verdict; but they said it was a great Misdemeanour in the Jury, for which they ought to be fined; and that the Plain­tiffs Sollicitor had carried himself with much blame and indiscretion; and the two Tipstaves which attended the Jury, for that they were not more careful, but connived at these matters, were fined, the one 40 shillings, (who appeared to be most in fault) and the other 20 shillings.

Barnard versus Michell.

HIll. 22. & 23 Car. 2. Rot. 865. The Case was moved again, and by the Opinion of all the Court, Iudgment was gi­ven for the Plaintiff, being after a Verdict.

For though the pleading, that he brake all the Covenants, would not have béen good upon a Demurrer, as they said, for two Reasons;

First, For that it would have been double, in regard that the breach of any one of them would have intituled the Plaintiff to the penalty.

Secondly, For that some of the Covenants were such as he ought to have assigned a special breach upon, that it might have been in the Iudgment of the Court; yet now the Verdict hath aided these defects.

Pellow versus Kingsford.

IN an Action of Debt sur l'Estatute 2 E. 6. for not setting out of Tythes. After Verdict for the Plaintiff, it was moved in Ar­rest of Judgment.

Vid. 2 Cro. 68. Yelv. 63.That the Lands out of which the Tythes were demanded, were shewn in the Declaration to lie in two Parishes; so that the Plaintiff ought to have made several Titles, and also have shewn how the Tythes should have béen set out upon the Land, (viz.) how much in one Parish, and how much in the other.

But it was held to be well enough, for this Action is but in the nature of Trespass, and to punish the Tort in not perform­ing the Statute.

Anonymus.

IN an Information upon the Statute of Usury. After Verdict at the Assizes for the King, it was moved in Arrest of Judg­ment, That the Venire was not well awarded, for it was entred ideo ven' inde jur'; whereas it should have béen praeceptum est Vicecomiti, &c.

The Court commanded to search Presidents, and were informed that they were generally so.

Anonymus.

A Prohibition was prayed on the behalf of a Churchwarden to the Ecclesiastical Court, for that they tendred him an Oath upon these Articles following.

First, Whether any Person within his Parish, hath Encroached upon the Church-yard?

Secondly, Whether any Person within his Parish were an Adul­terer, or Filthy Talker, Sower of Sedition, Faction, or Discord amongst their Neighbours?

Thirdly, Whether there were any which did not resort to their Parish Church, receive the Sacraments, &c.?

It was said to the first of these, That it concerned Matter of Freehold. But this was Overruled, for they may take notice of En­croachments upon the Church yard.

And to the second, Sowing of Sedition amongst Neighbours, is inquitable in the Leet, and the Bishops Court hath nothing to do with it. Besides, This Oath would oblige him to charge himself Criminally; for it is whether any person within the Parish, &c. so that himself is included.

And as to the Sowing of Discord, The Court held it did not be­long to them.

But they held, That the general words would not extend to the Churchwarden himself; but intended to relate only to the rest of the Parish.

But upon examination of the matter it appeared, That the Oath tendred was only in general words, (Viz.) To make Pre­sentations according to the Kings Ecclesiastical Law. And these Articles were offered only by way of direction, & quasi a charge. Wherefore the Court denied the Prohibition.

Anonymus.

IN Replevin of Beasts taken at D. the Defendant pleads in A­batement, that they were taken in another place; absque hoc, that they were taken at D. Et pro Return' habend', he Avows for Rent reserved upon a Lease. The Plaintiff replies, and Traverses the Lease, which should not be; for though the Defendant when he pleads such a Plea in Abatement, must also Avow to have a Re­turn; yet the Plaintiff cannot answer to it,1 Cro. 896. but must take Issue upon the other Matter.

Sir William Smith versus Wheeler.

IN Error upon a Judgment in the Common Pleas in Ejectment, for the Rectory of Hadnam in the County of Bucks, where the Jury found as to a third part of the Rectory, the Defendant Not guilty.

And to the other two parts, a Special Verdict to this ef­fect.

That Simon Maine was possessed of the two parts of the Re­ctory for 80 years, and in the year 1643 made by Indenture, an Assignment of them to Crook and Bleak upon these Trusts fol­lowing, (viz.) In trust for himself for Life, and after his Decease for the payment of his Debts, and for the raising of several Sums to be paid to divers of his Kindred. Proviso, That if he shall at the time of his Death leave a Child, or his Wife Enseint, then that it shall be to such Trust and Use as he shall limit and appoint by his Will, and if he made no such appointment, then to be in Trust for such his Issue. Provided further, That if Simon Maine should be minded, or willing at any time to make void the Present Indenture, or to Frustrate any Use or Trust therein, or create any new, or to dispose the Estate to any other person, or any other way, and such his purpose shall declare by Writing, under his Hand and Seal before Witness, &c. that then, and thenceforth the Trusts therein, &c. or so many of them, &c. should be void, &c.

Then they find that in 1644 he had Issue a Son, and that he took the profits thereof during his Life, and made several Leases of the Premises.

That the Assignees had no notice of this Trust during his Life, and that after his Death one of them assented, and the other dis­sented to it.

They find that in 1648 he committed Treason, and was there­of Attainted.

They find the Act of 12 Car. nunc, cap. 30. Whereby it is En­acted, That all Mannors, Lands, &c. Leases for years, &c. which he or any to his use, or in trust for him had, 25. Mar. 1646. or a [...] any time since, shall stand and be forfeited, &c. and also all Rights and Conditions, &c.

They find that the said Simon Maine died in 1661, and that the King made a Grant to Sir William Smith the Plaintiff.

It was adjudged for Wheele [...] in the Common Pleas, Pas. 20 Car. 2. by Tinel and Archer, who were then the only Judges in the Court; and Sir William Smith brought a Writ of Error in this Court, and after divers Arguments at the Bar, the Iudgment was affirmed this Term, by the Opinion of the whole Court.

[Page 129] Moreton. I shall say nothing to the marks of Fraud found in the Verdict; for tho' at first the Counsel of the Plaintiff insisted, that the Court ought thereupon to adjudge the Settlement fraudu­lent; yet it hath been since by them declined, wherefore I shall wave that,

The matter is, whether there be any thing forfeited longer than the Life of Maine.

It hath béen objected, That in regard Simon Maine had a power of altering the Trusts, and disposing of them otherwise, that this should amount to an implied Trust in him of the whole Term; but that cannot be, for after his Decease, the Trust is expresly limited to others.

'Tis true, he had a power of disposing, but that was to be executed at Election, and by such Circumstances as were indivi­dually privy to himself.

For it was to be done by his Will, according to the first Proviso. And by the second, to be done by Writing under his Hand and Seal; so not like to Englefields Case, in the 7 Co. 1.1. b. where the power of Revocation was to be executed by the tender of a Ring, which any one might do as well as the party himself.

But indeed this is the same case, with the D. of Norfolks ci­ted in the same Report; and the Statute of the 33 H. 8. of Forfeiture upon that Attainder, was penned as amply as this of 12 Car. and the Case of Warner and Harding, Latch. 25. is very like this: W. Shelley enfeoffed divers to the use of himself for Life, and afterwards to divers others upon Condition, that if a Ring were delivered by the said William Shelley, declaring that he intended those uses should be void, that then, &c. it was resolved, that nothing was forfeited, but during his Life.

Rainsford. I shall speak nothing to the Fraud, because that is a pure matter of Fact, which is to be found by the Jury, and can­not in any Case be presumed by the Court.

I am of Opinion, that the Judgment ought to be affirmed.

The power of altering the Trusts reserved by the first Proviso, is inseparable from the person of Simon Maine, for it is to be by his Will; in Moor 193. the Lord Pagetts Case, It is resolved, that inseparable Powers are not forfeited upon like words as are in this Act, and so the second Proviso limits to him a double Power.

First, Of revoking the old Trusts.

Secondly, Of limiting new. But this is to be done by Wri­ting, under his Hand and Seal in the presence of two Witnesses, so the performance of this also is personal.

The D. of Norfolks Case is the very same, unless for that it is there under his proper Hand and Seal, and here under his Hand and Seal, which certainly is all one.

[Page 130]But admitting this Power were forfeited, yet it is not found, that ever it was executed after it come to the King, which must be before any Estate could come to the King; therefore in Englefields Case it was found, that a Ring was tendred in the behalf of the Queen.

And whereas it was objected, That he had jus disponendi, and therefore might Forfeit, as a Man shall a Term which he hath in right of his Wife, as Dame Hale's Case in Plowden is resolved. I answer, That here he hath not jus disponendi, but rather pote­statem disponendi, but that is qualified, and to be executed by certain Circumstances, which must be performed to give it effect.

Twisden. As to the Fraud, I cannot see how the Jury could have found this fraudulent Settlement, made to prevent a Forfeiture enacted by Parliament 20 years after, which surely could not be without the Spirit of Prophecy.

I am of the same Opinion, as to the matter, with my two Brothers.

That Simon Maine had only a Trust in him during his own Life; and if he had brought a Bill in Equity, he could have had the Estate executed no further, and therefore can Forfeit no more by this Act; and it is not always, that a Man that hath power over Land hath a Trust, as we may sée in Cranmers Case, Dier 308, 309. there were as large words in the Act of his Attainder as here.

Indeed the Argument in Englefields Case, 7 Co. rules this; for if a Trust had béen implied in the power of Revocation, they néeded to have argued, that it should have been forfeited as a Con­dition; so the D. of Norfolks Case; for tho' the word Use is in that Act, and not Trust as in this, yet it makes no difference, for an Use was then the same with what a Trust is now; and tho' the word Power had béen in this Act, yet there should have béen no Forfeiture in this case, because the Execution of it is so personal and individual.

Neither is there found, that ever there was any Execution, and at most the Forfeiture could only be of what was in Simon Maine; neither can Smith Execute it by virtue of his Grant from the King, for the Kings Patent conveys nothing by implication, and shall never work to a double intent.

Hale Chief Justice of the same Opinion.

First, Crooke is a good Lessor, for the other Trustees disagrée­ment makes the Estate wholly his.

Secondly, For the Circumstances of Fraud, they are not material to be considered.

Thirdly, The Trust is wholly disposed of after the Death of Simon Main, so that he had nothing but during his Life.

[Page 131] Fourthly, Then what is operated by the Attainder? Why the Trust during Life is forfeited. Vid. the E. of Somerset's Case, Hob. 214. 2 Cro. 512. But then this Trust must have béen executed by the Court of Revenue. 'Tis true, the Act doth not only give the Trust, but the Term it self to the King, that is, during the Life of Simon Maine; so that by this Act, so much of the Term is drawn out of the Trustees, as served the Trust which S. M. had, but leaves the residue of the Term to serve the other Trusts; so that the possibility of the Term returns to the Trustees, after the Death of S. M. and this appears by the body of the Act.

Also this appears by the saving in the Act. The first saving, which saves all the Conveyances, made by the Feoffor before the 29 of Sept. 1659. indeed might not help, because Conveyances made to the Wives, Children, or Heirs, are therein excepted. But there the other Proviso saves the Right, Interest, &c. of all persons whatsoever, doth in Law and Equity, not derived form the offen­ders since, 25 Mar. 1646. and therein the Interest of Wife, or Children and all are saved; now this Estate was created before, (viz.) 1643. I come now to the Provisoes.

The first Proviso determins nothing till the time of Simon Maine's Death; and consequently this can revest no more to M. than he had before. For the Condition is in expectation till he have a Son living at the time of his Death; why then, by this there comes nothing to S.M. so much as in point of Execution during his Life: By his Will he might have limitted new Uses, but he made none; and 'tis personal: No other Man can make his Will.

Why then all stands as it did, and nothing is made void till the time of his Death, and then all is immediately executed to the Son, by force of the first Conveyance. But if the Proviso had béen, That if S.M. had a Son, there all had revested in S. M. and might have béen forfeited.

The last Proviso doth not create a Trust to him, for if he had not béen Attainted, the Trust should not have gon to his Exe­cutors, &c. No, it creates a personal power of fetching back the for­mer, and declaring new Trusts, observing the circumstances; up­on the same reason, that this Estate can be forfeited, a bare Ex­ecutor. (I mean, without a Devise of the residue) might forfeit his Estate; this is a Power, yea, and 'tis a manacled Power, it is a kind of Trust that he may revoke.

The D. of Norfolks Case is the same with this: So Harding and Warners Case which was adjudged in C. Banco, tho' there there were two to two, and it was confessed by the Kings Attorney in Scaccario, and the Kings Attorney doth not use to confess Judgment in Cases of great moment, without consultation with the Judges. This power was not, nor could be passed to the King by general words of all Land, &c. Conditions, &c. 3 Co. 2. a. b. much less [Page 132] 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. 'Tis 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.

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.

[Page 134]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.

[Page 135]It was also Objected, That there was no Averment: That the Defendant was not there upon Summons Sub poena, &c. of if so, then it is no Offence by the Act.

To which it was Answered, that if the Body of the Act were, That all persons which should resort to such place, which were not Summoned or Subpoena'd thither, should forfeit, &c. then 'tis true, it must be averred. But that matter comes, in a Proviso of the Act, (viz.) That it shall not extend of such Cases; and therefore if there were any such thing, the Defendant is to plead it.

Wherefore the Court ordered Judgment to be Entred for the Plaintiff. Ante.

Anonymus.

IN an Action of Trover and Conversion: After Verdict for the Plaintiff, it was moved in Arrest of Judgment, that the Action was commenced in Hillary Term, and the Conversion alledged to be the 3d of February in the same Term; and the Bill filed relates to the first day of the Term, so before the Cause of Action.

But it was Resolved by the Court, that if the Bail were Entred after the 3d Day of February, it is well enough; for it is that which gives this Court Iurisdiction.

So an Ejectment may be brought upon a Lease made in the same Term: So the Statute of Limitations may be pleaded to an Action, if the time be elapsed before the Day wherein the Bail is filed, though not before the 1st Day of the Term wherein the Action is brought: For the Action shall not be said to be depending until the Bail is filed. And upon Search it was found, that the Bail was filed the last Day of the Term.

Putt versus Nosworthy.

IN Debt, the Plaintiff declared upon certain Articles, whereby the Plaintiff Covenanted to convey certain Lands to the Defendant, and in Consideration thereof the Defendant Covenanted to pay a certain Sum to the Plaintiff.

After a General Imparlance the Defendant prayed Oyer of the Deed, whereby it appeared that the Defendant and one Vincent Covenanted, that he or Vincent should pay the said Sum. And he avers, that Vincent sealed and delivered the Deed, and demands Judgment of the Bill, & si actionem poterit habere versus eum solummodo.

To this the Plaintiff Demurred; which was Entred thus: Et dicit quod ab actione praedicta praecludi non debet, quia materia insufficiens, &c.

And the Defendant joyns, Quod materia praeallegat' sufficiens, &c. praedict' le Plaintiff ab actione praedict' praecludere.

[Page 136] Jones moved for the Plaintiff, that the Defendant's Plea being in Abatement, could not be admitted after an Imparlance, and that a peremptory Judgment ought to be here given; because he had concluded in Bar, as well as Abatement. For he doth not only demand Judgment of the Bill, but saith, actionem habere non debet; and the Demurrer is joyned, as upon a Plea in Bar.

And it was agreed, that if a man concludes a Plea in Abate­ment, as in Bar; if it be against him that pleads it, Judgment peremptory is to be given. But here the Conclusion is not actionem habere non debet; but 'tis added, versus eum cum solummodo, So if a man begins a Plea in Abatement, actio non, &c. Judgment peremptory ought to be thereupon given.

But then it was said, That although it were too late to urge this Matter, in Abatement; yet it appeared upon the Deed shewn, that the Plaintiffs Declaration was insufficient: For it being, If the Defendant, or one Vincent should pay; and the Plain­tiff alledging, that the Defendant had not paid, is not enough to intitle him to his Action, albeit that Vincent were no Covenantee, or had ever Sealed and Delivered.

To which it was Answered, and so Resolved by the Court, that it appeared by the frame of the Deed, that Vincent was as well party, as the Defendant; and it is too late now to averr, that he did Seal and Deliver; so it shall be taken that he did not, and then it remains the sole Covenant of the Defendant.

And though the words, are That the Defendant or Vincent shall pay; that is no more than the Law would have implied, if Vincent had Sealed.

And the Chief Justice cited one Cartwright's Case in Debt for Rent, where the Indenture of Lease was a Demise from Cartwright, and another Ioyntenant with him, reserving a certain Rent to them both; but the other never Sealed. Cartwright brought Debt, and declared of a Demise of the Moiety, and Reservation of the Moiety of the Rent. And upon Nil deber the Matter aforesaid was Specially found: And it was moved,

First, That the Lease being by Indenture, whether the whole Rent were not well reserved to Cartwright, as by Estoppel; or whether it were not good to him, as to a Stranger, for one Moiety? or whether it should not be good to him as an intire thing, which was reserved to him as well as the other?

But the Court Resolved, that it was good only for a Moiety as he had declared: For there being an Expectation of the others Sealing, which never was done; the Deed, as to one Moiety of the Land, and the Rent reserved, had no effect. And where one Declares against one upon a Deed, whereby it appears that another was bound with him, it shall not be intended that the [Page 137] other Sealed, unless averred on the Defendants Side. Other­wise where the Declaration is upon Matter of Record.

And it was held by the Court, That if the Declaration were defective in this, yet it was but in Matter of Form: For he saith, that the Defendant did not pay, sed adhuc injuste detinet, which is an Averment, tho' unformal, that the Money is not yet paid neither by the one nor other. And so it hath been held, where in Debt against an Executor it is averred, that the Executor did not pay it, & adhuc injuste detinet, and not averred, that the Testator had not in his life time; that after a Verdict this is aided.

And they held, that a Judgment ought to be given quod respon­deat ouster for the joyning Demurrer as upon a Plea in Bar, is not material; besides the Fault begun on the Plaintiffs part.

Tailour versus Fitzgerald.

ERror upon a Judgment given in the King's Bench in Ireland, in Ejectment; where the Plaintiff declared, that J. S. demised to him per quoddam Scriptum Obligatorium, &c. habend' à die datus Indenturae praedict'.

And upon Not guilty pleaded, it was found for the Plaintiff, and he had his Iudgment.

It was assigned for Error, that there was no time when this Lease should commence; for it was Habend' after the Date of the aforesaid Indenture, and there was none before, it being Scriptum Obligatorium, and not Indenturam.

But the Court Resolved, that the Writing shall be intended an Indenture, and tho' called Scriptum Obligatorium, which is im­proper; yet it may be said every Deed obligeth, or if it shall not be intended Indented, then the Lease shall commence presently, as if it had been Habend' from the 40th of September.

Crossing versus Scudamore.

IN Trespass, Quare clausum fregit, the Defendant pleaded that the place Where was the Freehold of Sir Thomas Hooke, and that by his Command he entred.

The Plaintiff traverseth, That it was the Freehold of Sir T.H. And thereupon this Special Verdict was found:

That Nicholas Heale was seised in Fee, and that 16 Dec. 1640. he made a Deed to Jane Heale, Enrolled within six Months, by which the said Nicholas did (for and in Consideration of Natural Love, augmentation of her Portion, and preferment of her in Mar­riage, and other good and valuable Considerations) give, grant, bargain, sell, alien, enfeoff and confirm unto the said Jane Heale, and her Heirs. Then they found there was a Covenant, that the [Page 138] said Jane Heale should, after due Execution, &c. quietly enjoy, &c. and also a special Clause of Warranty. And that the Deed was Enrolled within six Months, and that there was no other Con­sideration of making the Indenture, than what was expressed. And if it were sufficient to convey the Premisses to the said Jane, they found for the Plaintiff; if not for the Defendant.

And it was Argued by Winnington for the Plaintiff. He agreed that it could not take the effect as a Bargain and Sale, because no Money was paid; but Argued, that the Deed should enure as a Covenant, to stand seized.

It is a Ground in the Law, that the intention of the parties ought to guide the raising of Uses, and the Construction how they shall enure, Co. Lit. 49. Rolls 2d part 789. and to give the effect the words shall be disposed to other Construction than what otherwise they would import. As if a man demises, grants and to Farm-lets certain Lands in Consideration of Money, and the Deed is Enrolled; this is a good Bargain and Sale. So if a man Covenants in Consideration of Money, to stand seised to the use of his Son, 8 Co. 93. Foxes Case, 2 Rolls 789. it is said, Nota per Cur', if it appears that it was the Intent of him that made the Deed, to pass the Estate accord­ing to Rules of Law, it shall pass though there be not formal Words.

Again, the Consideration expressed in this Deed, is purely appli­cable to a Covenant to stand seised, and a Deed shall enure upon the Consideration expressed rather than upon one that is implied. As in Bedell's Case, 7 Co. 40. If the Father in Consideration of 100 l paid, Covenants to stand seised to the use of his Son, and the Deed is not Enrolled, nothing shall pass: But where there are two Considerations expressed, there the Vse may arise upon either. As if the Father, in Consideration of Blood and 100 l paid by the Son, Covenants to stand seised, &c. and the Deed is not Enrolled; yet the Vse shall arise as upon a Covenant to stand seised, Pl. Com. 305. And so it was Adjudged between Watson and Dicks in the Common Pleas, 1656. The Father by Deed, in Con­sideration of Love and 100 l paid by the Son, conveyed Land to him, with a Letter of Attorney in the Deed to make Livery; in that case the Son hath his election to take by the Enrol­ment or Livery, which shall be first Executed, 2 Rolls 787. pl. 25.

But it hath been Objected here, that there is a Clause of War­ranty in the Deed, which shews that the parties intended a Con­veyance at the Common Law; for if it enure by way of Covenant to stand seised, the Warranty can have no effect but to Rebut. Also there is a Covenant, for quiet Enjoyment after Sealing and Delivery of the Deed, and due Execution of the same; [Page 139] which shews the parties had a prospect of Executing it by Livery, &c.

To which he Answered, That such remote Implications as those shall never make a Deed void against an express Consideration, upon the which an Use may arise. 'Tis true, if there had been a Letter of Attorney in the Deed it might have been void, unless Livery had followed. As if the Father by Deed grants Land to the Son, and a Letter of Attorney in it to make Livery; if none be made, nothing passes, Co. Lit. 49. a. The Authorities which have been cited on the other side are, first, Pitfields and Pierce's Case, 2 Roll. 789. where the Father by Deed Poll, in Consideration of Blood, did give, grant, &c. (as in our Case) to his Son Habend' after his decease, and a Proviso in it, That the Son should pay a Rent during the Father's Life.

It was Adjudged, That the Lands should not pass in that Case by way of Covenant to stand seised. But in that Case the Con­veyance was repugnant to the Rules of Law, for that it was Habend' the Land after the death of the Grantor, and also repug­nant in it self. For notwithstanding that it reserves the Land to the Father during his Life, yet it provides for a payment of Rent to him; wherefore the Law would not help out a Deed so contra­dictory and repugnant by way of raising an Vse.

The other Case relied upon, is between Foster and Foster, Hill. 13. of this King, in this Court, in Ejectment. The Case was; The Mother, for divers good Considerations and 20 l paid, did by a Deed, which was Entituled, Articles of Agreement, demise, grant, bargain, sell, assign and set over, to the Son and his Heirs for ever, certain Lands; the said Margery the Mother quietly enjoy­ing the Premisses during her Life.

The Court Resolved, that it should not amount to a Covenant to stand seised; for they were but intended as Articles of Agree­ment, and preparatory for a further Conveyance. So the Case differs very much from ours, as also that it reserves the Land to the Mother during her Life.

The Case also of Osborn and Bradshaw in 2 Cro. 127. hath been cited, Where the Father, in Consideration of Love which he hears to his Son, and for Natural affection to him, bargained and sold, gave, granted and confirmed Land to him and his Heirs; the Deed was Enrolled. It was held, the Land should not pass unless Money had been paid, or the Estate executed. This Case cannot be urged as any great Authority; for it appears that the Son was in possession. Therefore the Court Adjudged, that the Deed should be a Confirmation: and it being clear that way, they had not much occasion to insist upon or debate the other Point. And he relied upon Debb and Peplewell's Case, as an Authority in the Point, 2 Rolls 78. 6. where there was a Clause of Warranty in [Page 140] the Deed, and an Enrolment within six Months, as in the Case at Bar: But they Resolved there, If a Letter of Attorney had been in the Deed, it should not have been construed a Covenant to stand seised; and therefore he prayed Judgment for the Plaintiff.

Finch, Attorney General, contra. The Lands here cannot pass by Bargain and Sale, there being no Money paid, which I find is admitted by the other side; neither shall it amount to a Covenant to stand seised. There are Five things necessary to raise an Use by way of Covenant:

First, A Sufficient Consideration.

Secondly, A Deed; as in Callard and Callard's Case, in 3 Cro. and in Popham's Reports; and hath been often Resoved since.

Thirdly, A Seisin in the Covenantor of the Lands at the time of the Deed: For a man cannot Covenant to stand seised to an Vse of Lands, which he shall after purchase.

Fourthly, A Clear and apparent Intent.

Fifthly, Apt and proper Words. And the two last things are wanting in our Case.

I agree, the word Covenant is not necessary, so there be other Words sufficient in Law, and to declare the parties Intent; for all Words will not serve. A man Covenanted upon good Conside­ration, that his Feoffees should stand seised: It was Resolved, that no Use should anise upon it, 1 Cro. 856. So Sir Thomas Seymor's Case, Where a Covenant was upon good Consideration to levy a Fine to certain Vses, and no Fine was after levied: It was Re­solved, that the Covenant did not raise any Vse, Dyer 96. Therefore 'tis usual to express in such Deeds of Covenant, that if the Conveyances therein contained be not executed, that then the party shall from henceforth stand seised. And where it is said in Vivian's Case, Dyer 302. One having given, granted and released to his Brother and his Heirs certain Mannors, and no Livery made, that Plowden would have averred that the Deed was made pro Fraterno amore, and so should raise an Use. Vnder the Favour of the Court I deny that Opinion of Plowden to be Law. And in Debb and Peplewell's Case it is said, That the Land was enjoyed against the Release. And in Moor, pl. 267. One Cove­nanted in Consideration of Marriage, to let his Land discend, remain or come to his Daughter: It was Resolved, no Use did arise thereupon.

In this Conveyance there are not any Words that sound in Covenant; the only word that looks towards an Use is the word Bargain and Sell. and in Ward and Lambert's Case, in 3 Cro. 394. it is held, That if one gives, or bargains and sells Land to his Son, it shall not amount to a Covenant to stand seised, for want of apt words.

[Page 141]Now the other are all words of Common Law, Give, Crant, Alien, Enfeoff and Confirm. There is also a clause of Special Warranty in the Deed, and a Covenant to make further assurance by Fine, Recovery, &c. as great a preparation at Common Law as could be. And if the Parties intend the Land shall pass at the Com­mon Law by Transmutation of Possession, there shall no use arise; Co. Lit. 49. Charter of Feoffment to the Son, it shall raise no use if no Livery be made.

The word Dedi in this Deed, imports a General Warranty, which is not qualified by the Special Warranty after; yet if the Land pass by way of use, there can be only a Rebutter, and so no use of the General Warranty. The Authorities since have not béen concurrent with Debb and Poplewells Case, but contrary to it. And I rely upon the Cases of Pitfeild and Pierce, and Forster and Forster in this Court, which have been remembred on the other side; but no answered. And whereas it is said, That the Habend, is after the Death of them which conveyed the Land; they are in that respect stronger than the Case at Bar; for by that it appears, they could not intend a Conveyance at the Common Law, which doth not allow such kind of Limitations, therefore it must be by way of use, or no way: Yet it was resolved they should not pass so.

It would introduce universal ignorance and carelesness, in such as draw Conveyances, if the Court should apply their Art to give them effect however they were penned; and it is a Rule Po­litia legibus, non leges Politiis adaptantur.

The Court after heaving the Case twice argued, were all of Opinion, That the Land should pass by way of Covenant to stand seized; and Hale cited Hob. 277. who doth there commend the Judges who are curious, and almost subtil to invent reasons and means to make Acts effectual, according to the just intent of the parties.

They all held clearly, That words proper for a Conveyance at Common Law would raise an Use, as Demise and Grant have béen adjudged to amount to a Bargain and Sale without other words; And they said Pitfields and Pierces Case, was adjudged upon the absurd contrivance of the Conveyance, and so Foster and Fosters Case in this Court; and for that in that case the Deed was Arti­cles of Agreement, preparatory to what the party intended after, and the case in Moor Pl. 267. where there was a Covenant in Consideration of Marriage, to suffer the Land to remain, descend or come to the Daughter; no Use did arise there, for the incer­tainty how it was intended the Daughter should take.

[Page 142]And they said, That if they should not construe an Use to arise by such Conveyance, as in the case at Bar, it would overthrow all Conveyances by Lease and Release.

And for the Objection of the Warranty in the Deed, it is well known there is so in most Conveyances to Uses. Wherefore they gave Iudgment for the Plaintiff.

Note, This Iudgment was afterwards affirmed upon Error, brought in the Exchequer Chamber.

Anonymus.

AN Indictment was brought, for using of a Trade to which he had not béen bound an Apprentice.

It was moved to quash it, because it was not alledged, that he did not use the Trade 5 Eliz. for if he did, he is excepted out of the Statute.

But the Court did not much regard that exception, Tho' they said it had béen often allowed; but it cannot here be intended, it being so long since the Statute was made.

Secondly, It was for using the Trade Aromatarij, without an Anglicè; so it could not be known what Trade was meant, and tho' that word is often used for a Grocer, yet it must be so Eng­lished, or else it shall not be taken for that Trade more than ano­ther.

And for this Cause, the Court quashed the Indictment.

Note, If a Man be taken upon a Warrant de securitate pacis, or any criminal cause, he is not to be charged with Actions, un­less the Court gives leave, which they will rarely do.

The Case of the Heirs of the Earl of Southampton.

KIng James by his Leters Petents Enrolled in this Court, granted to the E. of Southampton, all Deodands within the Mannor of Ditchfield.

An Inquisition was certified here, that a Deodand was forfeited within the said Mannor, and Process went out thereupon.

The Court were moved in behalf of the Daughters and Heirs of the Earl, whether they should be driven to set forth their Title in pleading; for if so, the charges would far exceed the value of the Deodand, and it would be very inconvenient, that every new Heir should be forced to plead upon every Deodand that happens.

But the Court said, in regard the Letters Patents are here En­rolled, and that it appeared by the Inquisition, that this Deodand was forfeited within the Mannor, it should suffice without pleading, if the Heirs satisfied the Office of their Title without pleading, as where Conusans of Pleas have been once allowed; it is suffici­ent [Page 143] in another Action to shew the former Roll where it was al­allowed.

Note, An Indictment for a Nusans in the High-way. The Court will not quash this Indictment upon Motion, unless certified that the Nusans is removed.

But they will Reverse it upon a Writ of Error, (if their be Error in it) without any such Certificate.

Iles Case.

A Mandamus was prayed to the Churchwardens of the Parish of Kinsmere in Hampton, to restore John Iles to the place of Sexton there, and it was granted.

And so the Court said hath béen for a Parish Clark, Churchwar­dens, a Scavenger.

But it was denied to one, who pretended to be Master of the Lord Mayors Waterhouse; for that they said was not an Office, but a Service.

Anonymus.

A Fine was levied of Lands in Blandford Forum.

Resolved, That this should not pass Lands in a Hamlet of that Town, there being Constables distinct in Blandford Forum, from others that were in the Hamlet; so that they were as two Vills.

But if a Fine be levied of Lands in a Parish, it shall extend to all the Vills within the Parish.

The Lord Hawley's Case.

A Mandamus was granted, to restore him to the Recordership of Bath.

The Corporation returned, That they were Incorporated by Let­ters Patents of Queen Elizabeth, which empowered them to chuse probum & discretum hominem in legibus Angliae peritum to be their Recorder, and to hold a Court twice every Week before the Mayor, Alderman and Recorder, or any two of them, whereof the Mayor to be one.

That the 1st of August 15, of this King he was made Recorder by the Committee, upon the Act of this King for regulating of Cor­porations; and that he continued in the Office, Secundum locatio­nem illam until the 25 of December 21 of the King, and that from the 1 of August 15, of the King, to August 21 he absented himself, by the space of five years without any reasonable Cause, and that he is nullo modo peritus in lege; and that at a Court August the 21, [Page 144] they summoned him to appear some days before, and he not com­ing, they amoved him from his Office, the 30 day of the said August.

After this Return filed it was moved.

First, That it was repugnant, for they returned, That the Lord Hawley continued in his Office until the 25 of December 21 of the King, and after that they amoved him in August 21 of the King. To which it was answered, That in regard upon the whole return it appears, that he was amoved, though it be said he continued after, that is not material but surplusage. As where a Jury gives a general Verdict, and yet discloses special matter disa­greeing to it; the Court judges according to the special matter; or else they might mean that though he were turned out, yet he did continue exercising it de facto. And the Court were of Opinion, that the contradiction in the Return was not material: For Hale said, If it shall be taken that he is yet in, then there is no need of a Mandamus.

Again it was said, That the matter of absence was not suf­ficiently returned; for it appears by the Charter, that the presence of the Recorder is not necessary to the holding of the Court; for it is to be held before the Mayor, Aldermen and Recorder, or any two of them, whereof the Mayor to be one; then they have not returned, that they held a Court in all that time, neither have they returned, that any mischief, or inconvenience happned to them by his absence.

A Park-keeper shall not forfeit his Office for Non-attendance, unless a Deer be killed or the like in his absence. Also it is re­turned from the 1 of Aug. 15. Car. to the 1 of Aug. 21. he absen­ted himself for five years, and he might be out of Town five years in six years time, and yet be there every Court day.

And for the other cause of removal, that he was not peritus in lege; It was said, That the Corporation being Laymen, could not return a thing whereof they were not Judges: That the Return was too general, nullo modus peritus; but ought to have set forth some special Fact, whereby it might appear to the Court.

Also, They could not remove him for a Cause which they could not examin; he was put in by Commissioners, authorised by Act of Parliament, which it was said did capacitate implicitely him, at least their Act supplied the Election of the Town, which if it had been, would have dispensed with his disability. And the Case of Bernardiston, Recorder of Colchester was much relied upon, who in 1655, brought a Mandamus to be restored to his Office. And it was returned, That he was not learned in the Law, and that one being indicted before him, upon the Sta­tute of 1 Jac. of having two Wives, and convicted he denied him [Page 145] Clergy; and also they returned, That he absented himself for nine Months; and notwithstanding, by the Iudgment of the Court he was restored.

It was said by Sir William Jones on the other side, That the absence as it was returned, was sufficient Cause to remove him; for it is returned, That without any reasonable Cause seipsum elongavit, by the space of five years, which must be intended five years continued, and not made up by Fractions; (and so held the Court in that Case) and executionem officij sui totaliter neglexit: Now, tho' his Presence be not of absolute necessity to the holding of the Court, yet it is highly convenient that he should be there, see­ing the Charter gives such large Iurisdictions, to determine all Causes, (excepting such as concern Freehold) according to Law.

The Court here also must judicially take notice, That the Of­fice of Recorder is concerned in other matters, besides the Admi­nistration of Justice in the Court; for he is as it were the Common Counsel of the Corporation.

And whereas it hath béen objected, That it is not returned, that they had held a Court during his absence, or that any preju­dice had ensued.

Also, That it must be intended that there were Courts, when they have returned the Charter, which empower them to hold one twice every week; and 'tis returned, That he absented himself in Regiminis Civitatis detrimentum, &c. and 'its apparent they must suffer prejudice by so long absence. If a Park-keeper should desert his Office for five years, it would make a Forfeiture without Special Damage.

The other matter returned also, That he is nullo modo peritus in lege, is good Cause; for the Charter appoints them to Elect such an one; so one that is not so qualified is not capable; and the Act of this King authorises Commissioners but to do what the Corporation might have done.

It is apparent, That the Office requires skill in the Law; he hath no power to make a Deputy by the Statute of 21 Jac.

Causes in many Cases are not to be removed out of Corpora­tion Courts, where they are held before an Utter Barrister; so that 'tis far better for the Corporation to have such an one their Re­corder.

Twisden said, The case of Bernardiston differed, (besides that he apprehended he had much of the favour of the times in it;) for he that was tried before him for having two Wives, was ar­raigned before him, not as Recorder of Colchester, but as a Com­missioner of the Gaol delivery; neither was it returned, That he was Summoned, (which was said not to be material, because they could not have examined the matter.) It was returned also, That he absented himself for nine Months; but not set forth that [Page 146] any Court was held during that time, or any occasion for it.

He said, That Cholmley Recorder of Lincoln was turned out of his place, for trying the Accessory before the Principal; and altho' there be no Special Fact returned here, yet it may be tried in an Action upon the Case.

The Court said, They would look upon Bernardistons Case. Et Adjornatur.

Anonymus.

A Prohibition shall not go to the Admiralty to stay a Suit there for Mariners Wages, tho' the Contract were upon the Land. For,

First, It is more convenient for them to sue there, because they may all joyn,

Again, according to their Law, if the Ship perish by the Ma­riners default, they are to lose their Wages; therefore in this spe­cial Case the Suit shall be suffred to proceed there.

Dier versus East.

WHere by the Statute of Ed. 6. It is ordained, That strik­ing in the Church-yard shall be Excommunication Ipso facto; this tho' it takes away the necessity of any Sentence of Excommunication, yet he that Strikes doth not stand Excommuni­cated, until he be thereof convicted at Law, and this transmitted to the Ordinary.

Theodore Morris's Case.

HE was indicted of Murther in Denbigh, and obtained a Cer­tiorari to remove it into this Court, in order to have it tryed in an adjacent English County.

And it was moved whether by Law it might be.

The Statute of 26 H. 8. cap. 6. empowers the next English County, to take Indictments of Treasons and Felonies committed in Wales, and to try them; but here the Indictment was taken in a Welsh County. Herbets Case in Latch was cited, who was indicted at Montgomery, and tryed at Salop; and Plowden, Matters del corone avenants a Salop; and Southley and Prices Case, 3 Cro. is, That the Statute doth not extend to a Tryal upon an Appeal. In Chedleys Case a Certiorari was granted, as here, to remove an Indictment found in Anglesy, which was afterwards tryed in the next English County, 3 Cro. 331.

And the Court held, that so it might be here.

Large versus Cheshire.

HIll. 22. and 23 Car. 2. Rot. 520. In Covenant the Plaintiff declared upon Articles of Agreement, between him and the Defendant, whereby the Defendant covenanted to pay him such a Sum; the Plaintiff making to him a sufficient Estate in such Lands before the Feast of St. Thomas next ensuing the date of the Deed; and then he saith that licet he the Plaintiff, semper a tempore confectionis scripti paratus suit ad performand' all the Agreements of his part usque ad diem Exhibitionis bille, the Defendant had not paid the Money.

The Defendant pleaded, quod ipse obtulit solvere the Money a­foresaid, apud Derby, si le Plaintiff faceret ei bonum & sufficient' Statum de & in Premissis, &c.

The Plaintiff replied, Protestando That the Defendant did not offer the Money; pro placito that he the 21 of Decemb. apud Derby fecit & sigillavit quandam Chartam Feoffamenti, whereby he con­veyed the Premisses to the Defendant, and that he came to the Premisses an hour before Sun-set, the same day paratus ad delibe­rand' seisinam, &c. & quod Desendens nec aliquis ex parte illius ve­nit ad recipiend', &c. to which the Defendant demurred, and ad­judged for him.

It was held, That these words ipso faciente bonum statum, were a Condition precedent to the payment of the Money; there­fore the Plaintiff in his Declaration should have averred the per­formance of it particularly, and not by such general words, that he had done all on his part.

And it differs from the Case, where in Assumpsit the Plaintiff declared, That the Defendant in Consideration the Plaintiff should permit him to enjoy such Land for seven years, that he would pay him pro quolibet anno 20 s and the Action was held well brought within the seven years, for that it was Executory contract for every of the years, according to the intention of the Parties.

It was resolved also, That the Replication was insufficient; for that the Plaintiff having Election to make what Conveyance he pleaded, he ought to have given notice to the Defendant, that he would execute this Charter of Feoffment by Livery, for it might have béen by Enrollment. But Hale said, The time when in this Case was not necessary to be in the notice, because the Charter was sealed and delivered upon the extream day limited by the Agreement, so the Defendant knew it must be upon that day; so for the place, because it is a local thing, and must be done upon the Land.

[Page 148]But because he had set forth no notice given to the Defendant, that he would make Livery, the Replication is insufficient; as if a Man be bound to Levy a Fine, he must shew whether he will do it in Court, or by Dedimus; and the Court said, if the Defen­dant had refused to accept of Livery, the Plaintiff might as well have brought the Action as if he had actually made it.

Sacheverel versus Frogate.

IN Covenant, the Plaintiff declares, That Jacinth Sacheverel was seized in Fee, and demised to the Defendant certain Lands for 21 years, rendring to him, his Executors, Administrators and Assigns 120 l Annually during the Term: By force of which Lease the Defendant entred, and that J. S. Devised the Reversion to the Plaintiff, and died; and for Non-payment of Rent accrued since his Death he brought the Action, and to this Declaration the Defendant demurred.

And it was argued by Winnington, That the Rent determined by the Death of the Lessor, as where the Lessor reserves the Rent only to himself, 1 E. 4. 18. 27 H. 8. 19. Dier 45. Com. 171. the Heir shall not have it, for reservations are taken strongliest against the Lessor; so where the reservation is to the Lessor, his Executors and Assigns, it continues but for his Life, Co. Lit. 47. a.

'Tis true, Here is also added Durante Termino; and in Mallo­ries Case, 5 Co. where the reservation was to the Abbot, or his Successors during the Term, it went to the Successor; but that was because they expounded, or as a Conjunctive, for if Successor had béen left out, I suppose it would have been resolved otherwise. Rich­mond and Butchers Case, 1 Cro. 217. is in point, that the Heir shall not have it. So 2 Rolls 451. And Doderidge gives the Rea­son, That the Party by his words hath abridged what otherwise the Law would make; and so it is held in Bland and Inmans Case, 3 Cro. 288. where a Man possessed of a Term for a 100 years, did joyn in a Lease with his Wife, solvendo so much Rent during the Term to him and his Wife, and the Survivor of them; that the Exe­cutors should not have this Rent.

Hunt contra. In the Reservation of a Rent, there is no need of words of Limitation: If the words are Yeilding and Paying Ge­nerally, without saying to whom, it is a good Reservation to all those to whom the Reversion shall come; so if two Joynt-tenants reserve a Rent generally it is good to both.

Here are sufficient words to declare the intent that the Rent should continue, and then they shall not be restrained by any af­firmative words after; and where Executors, Administrators and Assigns are named, that shall be taken as an Enumeration of some particulars, without any intent to exclude others, as where [Page 149] a man made one his Executor of all his Corn and moveable Goods; this gave him an Interest; as Executor, in all his Chat­tels, as well as in those which were named, 3 Cro. 292. Rose and Barlett's Case, 8 Co. Whitlock's Case. If the Reservation be to such persons to whom the Reversion shall come, this is good to the Heir and all others. If a Lease be made, excepting a Chamber, to the Lessor; this remains excepted after the death of the Lessor, 7 H. 8. 19.

Hale: If this were res integra, it might be a strong Case for the Plaintiff; but the Authorities go the other way. Sed Adjornatur. Vide postea.

Dorrel versus Jay.

THe Plaintiff declared, that Communication being between J.S. and the Defendant, of the last Will of John Rowe Esquire, deceased, that the Defendant said of the Plaintiff, He hath forged his Uncle Rowes Will.

After Verdict for the Plaintiff it was moved by Serjeant Ellis in Arrest of Judgment, that it is not averred that John Rowe was dead at the time of the speaking of the words. Sed non allo­catur.

For it is said, there was a discourse of the Will of John Row Esquire defuncti, and there defuncti goeth to the description of his person, and expresseth that he was then dead, and not only when the Action was brought.

Besides, the words imply it; for if he were not dead, he could not forge his Will. Vid. ante Phillips and Kingston's Case, Pasch. 23 Car.

The Case of St. Katherines Hospital.

THe Case, as it appeared upon the Evidence at a Trial at Bar in Ejectment, for part of the Lands of the Hospital, between the Lessee of Sir Robert Atkins the Queens Solicitor, and George Mountague Esquire, was this.

Elianor, Queen Dowager of Henry the Third, in the year 1273. Founded (or at least amply Endowed) this Hospital, reserving to her self, during her Life, & Reginis Angliae nobis succedentibus, [Page 150] the Nomination of the Master to this Hospital; which was Incor­porated, and her Grants to it confirmed by the King's Letters Patents.

In the Year 1660, Henrietta Maria, Queen Mother, granted the Mastership of this Hospital to H. Mountague for Life; and the King in the same year reciting, his Mothers Grant, and that the Right of it belonged unto her, Confirmed it by his Letters Patents; and did further by the same Letters Patents grant unto the said H.M. the said Mastership.

Afterwards the King married Katherine the now Queen Consort, and she granted the Mastership to Sir Robert Atkyns for his Life.

It was urged on the part of the Plaintiff, that the Right of appointing the Master was only in the Queen Consort; for Queen Elianor reserved it to her self and her Successors, Queens of England; and Queen of England is not Queen Dowager; but Queen Consort. And tho' Land cannot be limited to discend in such manner without Act of Parliament, as is Resolved in the Prince's Case in 8 Co. yet such a Desultory Inheritance (as this was called) may be created of a thing de novo: As a Rent may be granted and appointed to cease during the Minority of the Heir; or upon the first Foundation of a Church, the Patronage may be reserved to A. and if he Presents not within four Months, then to B. So in the Book of E. 3. it was limited, that the Chapter should present while the Deanry was vacant. And to prove, that this Clause had been construed only to intend the Queen Consort, a Record was shewn of a Case between Luttishall and Basse, in 4 E. 3. Where

Luttishall exhibited a Petition to the King, which was Intituled, To our Lord the King and his Counsel. Which Petition was sent into the Kings-Bench under the Great Seal, in which Luttishall sets forth, That Queen Isabel, Mother to Edward the Third, had granted him the Mastership of the Hospital for his Life, and that he was disturbed by Basse; and Process was issued out against Basse, who appeared and pleaded a Grant from Queen Philip. Wife to Edward the Third; and a Writ came from the King, reciting, That the Nomination of the Master did belong to Queen Isabel. And so three Writs more came after to the same purpose, and expressing that the Matter was delayed ad inestimabile damnum Consortis nostrae: And in that Record, Isabel (tho' living) is styled nuper Regina, and Luttishall that claimed under her was barred.

On the other side, Divers Grants were produced during the time that there were no Queens, by the King, and sometimes by a Queen Dowager, during the time that there was a Queen Consort. And these Points following were agreed by all the Court:

[Page 151] First, That an Inheritance might be limited in this manner in a thing de novo.

Secondly, That this Reservation being to Queen Elianor, and her Successors, Queens of England, did not exclude Queen Dowagers, and extend only to Queen Consorts. For,

1. A Dowager Queen is Queen of England, and (as Hale said) hath the Prerogative to Sue in the Exchequer.

2. When once she is so qualified to have the Estate vest in her, it shall continue, tho' she doth not remain in the same Capacity.

As where one hath power to Limit an Estate to his Wife, it may very well continue in her after the Coverture.

Thirdly, It was much observed and relyed upon, that Queen Elianor was only Dowager at the time of the Foundation, and so could never be intended to exclude such Queens as should succeed her in that Capacity.

Fourthly, During such time that there should be no Queen, it was held, that the King was to constitute the Master; for he is Heir to Queen Eleanor. And whereas it was urged for the Plaintiff, That the King had not power to dispose of the place, but only by way of provision till such time as a Queen should be; so as to commit the Care of the Poor to one, but not the Interest of the Mastership.

It was clearly Resolved, that the King might grant it, and that the Estate of the Grantee should continue, tho' the King's Interest devolved upon the succeeding Queen. And it was Re­sembled to the Case of the Dutchy of Cornwal: If the King, while there is no Prince of Wales, makes a Lease of Lands belonging to that Dutchy, this shall determine upon the Birth of that Prince; but if he Presents to a Church, the Incumbent shall not be removed; as in case where the King presents to a Church by reason of the Temporalties of a Bishoprick, the Bishop after Created shall not remove the Clerk.

And the Chief Justice said in this case, that the Interest of the Mastership did not properly pass from the King, so as it should have a dependance upon the King's Estate; for the King doth but Nominate, and the Master is Intituled as from the first Foun­dation and Constitution.

It was further agreed, that a thing of this nature could not be granted in Reversion; for 'tis not like an Office, but rather as a Prebendary or Incumbency of a Church; and the Master, as Head of the Corporation, with his Brethren, hath the whole Estate in him.

As to the Record in 4 Ed. 3. it was said,Note, For Evidence. and so shewn out of Speeds Chronicles, produced in Court, That at that time Queen Isabel was under great Calamity and Oppression, and what was then determined against her was not so much from the Right of [Page 152] the thing, as the Iniquity of the Times; neither hath it been heard, that one who had been Queen of England, should be called nuper Regina in her Life time: So that that Authority was much invalidated from the Circumstance of the Time.

The Plaintiffs observing the Court thus clearly for the Defendants Title, was Nonsuit.

Note, It was not Resolved, whether if there had been a Queen Consort at the time of this Grant, it had been good to the Defen­dant? But the Judges rather inclined that it should.

Davison versus Hoslip.

IN an Assumpsit the Plaintiff sets forth, That J. S. owed him 20 l for the Arrear of an Annuity, and that the Defendant was Receiver of the Rents of J. S. and appointed by J. S. to pay the Plaintiff his 20 l

That the Defendant, in Consideration that the Plaintiff would forbear him adtunc Receptor' & serv' J.S. to such a time, that then he would pay him, if he lived and continued Receiver.

To this the Defendant pleaded non Assumpsit, and a Verdict was found for the Plaintiff.

It was moved in Arrest of Judgment, that it did not appear that the Defendant had at the time of the Promise any of the Rents of J. S. in his hands; and then the forbearing of him could be no Consideration, because not liable to any Suit. And tho' in case of an Executor's Promise there need be no Averment of Assets; for notwithstanding that he may be Sued, and the Plaintiff may have Judgment to recover when Assets shall come, yet 'tis not so in this Case. Sed non allocatur.

For it being shewn, That he was Receiver at the time of the Promise, and averred, That he so continued; 'tis a strong Intendment that he had Effects in his hands, especially after a Verdict.

It was also said, That the taking of this Promise did not dis­charge the Principal Debtor; but that there might be resort to him so long as the Money was unpaid.

Brown versus London.

IN an Action upon the Case, the Plaintiff declared upon the Custom of Merchants, that J. S. drew a Bill of Exchange upon the Defendant, to pay to the Plaintiff; which he accepted, and hath not paid him.

And declared further sur Indebitat' upon such a Sum; for that the Defendant accepted a Bill of Exchange from him, &c.

[Page 153]Vpon non Assumpsit a Verdict was f [...]und found for the Plaintiff, and entire Damages given.

And it was moved in Arrest of Judgment, that an Assumpsit sur Indebitat' did not lye upon his matter, but only an Action upon the Case, as it was laid in the first part of the Declaration, where the Custom of Merchants is set forth, and that the Defendant by reason thereof is chargeable; and this is not to be involved in a general Indebitatus assumpsit.

And of that Opinion were Hale and Rainsford, who said it had been so Adjudged in the Exchequer since the King's Re­turn.

But they said, If A. delivers Money to B. to pay to C. and gives C. a Bill of Exchange drawn upon B. and B. accepts the Bill, and doth not pay it, C. may bring an Indebitatus assumpsit against B. as having received Money to his use: But then he must not declare only upon a Bill of Exchange accepted, as the Case at Bar is.

So by their Opinions the Judgment was stayed, haesitante Twisden; for he conceived that the Custom made it a Debt for him that accepted the Bill.

Ile's Case.

A Mandamus was prayed to restore a Sexton. The Court at first doubted whether they should grant it; because he was rather a Servant to the Parish, than an Officer, or one that had a Freehold in his Place. But upon a Certificate shewn from the Minister, and divers of the Parish, That the Custom was there to choose a Sexton, and that he held it for his Life; and that he had 2 d a Year of every House within the Parish; They granted a Mandamus, and it was directed to the Churchwardens.

Twisden said, that it was Ruled in 1652. in this Court, That a Mandamus did not lye to be restored to a Stewardship of a Court Baron, but of a Court Leet it did; for there the Steward is Judge, but of a Court Baron the Suitors are Judges.

But Hale said, He was of another Opinion; for the Steward is Judge of that part of the Court which concerns the Copyholds, and is Register of the other. Ante.

Oble versus Dittlesfield.

IN an Assumpsit the Plaintiff sets forth, That J.S. was Indebted to him in 40 l and that the Defendant was Indebted in the like Sum to J. S. and that J. S. did appoint him to receive this 40 l from the Defendant in satisfaction for the Debt due to him from J.S. Which he signifying to the Defendant, he in considera­tione [Page 154] praemissorum, and that the Plaintiff would forbear him a Quarter of a year, promised that he would then pay him.

To this the Defendant pleaded non Assumpsit, and a Verdict was found for the Plaintiff.

It was moved in Arrest of Judgment, that here was no sufficient Consideration; for it doth not appear that the Defendant was party to this Agreement, whereby he should become chargeable by the Plaintiff, and then the Forbearance is not material, and in the mean time he is Suable by J.S. his Creditor. And Clipsham and Morris's Case was cited, which was Adjudged in this Court Hill. 20 & 21 Car. 2. where the Plaintiff in an Assumpsit declared, that J. S. was Indebted to him in 50 l and gave him a Note, directed to the Defendant, whereby he required the Defendant to pay him; who upon view of the Note, in Consideration that the Plaintiff would accept of his Promise, and forbear him a Fort­night, promised to pay him the Money. There (after Verdict for the Plaintiff) Judgment was Arrested, because that was held no Conside­ration. Sed non allocatur.

For Hale said, When Assumpsits grew first into practice, they used to set out the Matter at large (viz.) in such a Case as this, Quod mutuo aggreatum fuit inter eos, &c. and they should be dis­charged one against the other; but since it hath been the way to declare more concisely. And upon the whole Matter here it appears, that the Defendant agreed to this Transferring of the Debt of J. S. to the Plaintiff; and that it was agreed, that he should be dis­charged against J. S. And he said, that the Case of Davison and Haslip (hoc Termino ante) was to the same effect: And for Clip­sham's Case, that was said to be good Law; for there it did not appear that the Defendant was at all Indebted to him that sent the Note.

Sir William Hicks's Case.

DEbt was brought against him by the Name of Sir William Hicks, Knight and Baronet.

He pleaded in Abatement, that he was never Knighted.

The Plaintiff moved, that he might Amend, an that he had put in Bail by the Name of Knight and Baronet, so that he was concluded to alledge this Matter; which the Court agreed if it were so: But it was found to be Entred for William Hicks, Baronet only. So they said, they could not permit any Amend­ment; but the Plaintiff must of necessity Arrest him over again.

Fisher versus Batten.

A Bill was Exhibited in the Dutchy Court, to be relieved against the Forfeiture of a Mortgage of Lands lying within the County of Lancaster.

The Defendant prayed a Prohibition; Surmizing, that the Lands in question were not the Kings Lands, or holden of him, and therefore he ought not to Answer in the Dutchy Court. And the Court appointed to hear Counsel on both Sides, whether or no this Prohibition were to be granted.

And it was Argued by Sir William Jones for the Prohibition, That a Court of Equity must begin by Prescription or Act of Parliament.

That there can be no Prescription in this Case; for both the Dutchy and County Palatine of Lancaster began within time of Memory. Henry, Father of John of Gaunt, was the first Duke of Lancaster, and he was made so in Edward the Third's time, and then Lancaster was made a County Palatine.

The Act of Parliament upon which this Case must depend, is that of 1 Ed. 4. which takes notice, that the Dutchy and County Palatine of Lancaster were forfeited to the Crown by the Attainder of H. 6. and Enacts, That they shall be separate and distinguished from other Inheritances of the Crown; and appoints a Chancellor for the County Palatine, and a Chancellor for the Dutchy, and that each should have his Seal; so that the Chancellor of the Dutchy is not to intermeddle in the County Palatine, which hath a Chancellor of its own for Matters there.

Counties Palatine had their Original from a Politick Reason, and Lancaster, Durham and Chester were made so probably, because they were adjacent to Enemies Countries; (viz.) the two first to Scotland; and Chester to Wales; so that the Inhabitants having Administration of Justice at home, and not being obliged to attend other Courts, those parts should not be disfurnished of Inhabitants, that might secure the Country from Incursions.

'Tis true, of a long time the Chancellorship both of County and Dutchy have been in one Person; but 'tis the same thing as if there were two, for the several Capacities remain distinct in him.

The first Patent that made it a County Palatine, Ordained that it should have Jura regalia ad Comitatum Palatinum pertinen' adeo libere & integre sicut Comes Cestriae,Com. 215.infra eundem Comitat' Cestriae dignoscitur obtinere, &c. So that by that the Jurisdiction ought to be exercised within the County.

[Page 156]They have shewn indeed a multitude of Presidents, but I can hear but of One, for the first Fifty years after 1 Edw. 4. most of the other are of Personal things; and of the rest, divers began in the County Palatine, and were transmitted to the Dutchy Court: As they may send Causes out of the Courts there, to be Argued in the Kings Bench; but doubtful whether the Court here can give Judgment.

They have very few Presidents of Causes which commenced Originally in the Dutchy Court, which is but a Court of Revenue, 4 Inst. The Court of Requests had a multitude of Presidents, but could not thereby gain it self any Jurisdiction, 4 Inst. 97. Holt's Case Hob. 77. A Bill was Exhibited to be relieved against the Penalty of a Bond, which concerned an Extent of Lands within the County Palantine, and a Prohibition was granted; for the Dutchy Court is said there to have nothing to do, but with the Kings Land, and his Revenue. Vid. Rolls — accordingly.

Weston contra: We cannot pretend to a Court of Equity by Prescription; but we have Presidents of above Two hundred years last past, as well of Bills retained, which commenced Originally here, as of those transmitted; and that of Transmission is agreed on the other side, which proves the Jurisdiction. For if a Certiorari, or Corpus cum causa, should go out of the Kings-Bench, Conusans of Pleas might be demanded, and so to stop the Removing of the Cause out of the Inferiour Court.

We maintain our Jurisdiction upon the Statute of 1 Ed. 4. before which the County Palatine and Dutchy of Lancaster were distinct, as they were 1 H. 4. by which Act they were both severed from the Possessions of the Crown: But now 1 Ed. 4. makes one Body of these distinct Bodies, and gives a superiority to the Dutchy over the County Palatine; for that is annexed unto, and made parcel of the Dutchy, as the supream Name of Corporation.

The Words of the Act are: That our Liege and Sovereign Lord, King Edward the Fourth, and his Heirs, have as parcel of the Dutchy the County of Lancaster, and County Palatine; and there is a Chancellor and Seal appointed for the County Palatine, and a Seal also for the Dutchy, and a Chancellor there for the keeping thereof; and Officers and Counsellors for the Guidance and Governance of the same Dutchy, and of the particular Officers, Ministers, Tenants, and Inhabitants thereof.

So that the Act having Constituted a Chancellor indefinitely over the Dutchy, and not circumscribing his Power, it is not reason to exempt any part of the Dutchy, and that the County is by force of this Act. In the 4 Inst. 119. it is said, that seeing there hath been time out of mind a Chancellor of the Exchequer, that there should be also in the Exchequer a Court of Equity. So the Book of the 2d of H. 8. and Rolls Tit. Prohibition to the Chancery, [Page 157] that where there is a Chancellor time out of mind, a Court of E­quity follows of consequence, 4 Inst. 212. It is said, that the Chamberlain of Chester hath the Jurisdiction of a Chancellor within the County Palatine of Chester; as the Chancellor of the Dutchy of Lancaster hath lawfully used and executed within the County Palatine of Lancaster.

Hale Chief Justice. The County Palatine of Lancaster is by Act of Parliament, and therefore Outlawry there is a good Plea in dis­ability; but an Outlawry in Chester is not pleadable here, for that is a County Palatine by Prescription.

The Possessions of the Duke of Lancaster were not made a Ducatus, until 2 H. 5. in the Parliament Roll, for that year 'tis en­tred Quod sigilla pro Ducatu Lancastriae allocentur, and that it should be governed per Ministros Ducatus.

By the Parliament Roll, 39 H. 6. amongst the Tower Records it appears; that there was appointed a Chancellor of the Dutchy, an Attorney, Auditor, a Steward, and a General Receiver; also a Chancellor and the like Officers for the County Palatine.

So that before the Statute of 1 Ed. 4. there was a Chancellor of the Dutchy.

I do not think the hare granting of a Chancellor, will incident­ly give a Court of Equity, nor is such a Court incident to a County Palatine, tho' there is a general grant of Jura regalia; but the main matter is upon the Statute of the 1 Ed. 4. which Enacts, That the County of Lancaster be a County Palatine, (which perhaps would have otherwise determined by the Attainder) and that it be parcel of the Dutchy, and that there be Officers and Councellors for the guiding of the same Dutchy, and of the parti­cular Officers, Ministers and Tenants, and Inhabitants thereof, in as great, ample and large Form, as Henry calling himself King Henry the 5, at any time herein had used and enjoyed lawfully; and fur­ther, That in the same Dutchy be used, had and occupied all such Freedoms, Liberties, Franchises, Priviledges, Customs and Juris­dictions as were used therein lawfully. These words would not of themselves give a Court of Equity, but are relative to what was formerly; and the Presidents that have been produced, are an Evidence that there was such a Jurisdiction exercised before this Act, which is confirmed and established by it.

We have no full account of its original, but there are such Prints and Footsteps of it, that we must presume it lawful; or otherwise, 'tis not to be thought that the Act should refer to it, Holts Case agrees, that they have a Court of Equity, and so as 'tis reported in Rolls, tho' there is a mistake in the Report, where 'tis said, that the Dutchy have no Iurisdiction of such Lands as lye out of the County Palatine, tho' holden of the King; but possi­bly they may extend their Iurisdiction too far, when they retain [Page 158] Bills concerning Lands lying out of the County Palatine, within the precinct of the Dutchy, but not holden. But that matter is not now in question.

I think no Prohibition ought to go in this Case.

First, Because the Statute of the 1 Ed. 4. makes the County Palatine parcel of the Dutchy.

Secondly, For that the Statute refers to the Iurisdiction for­merly exercised, and appoints the Tenants and Inhabitants of the Dutchy to be under the same Regulation. And for that, there are such multitude of Presidents of Proceedings in this nature, (and allowing transmission of Causes yields them a Iurisdiction) for the space of 200 years, and so many Mens Estates depend upon their Decrees, which have been made with the assistance of so many Learned Iudges, which at all times have béen called to assist in this Court, that it would be very unreasonable and inconvenient to unsettle them.

Vpon a Quo Warranto, the matter might be more strictly exa­mined, than it is fit to do upon a Prohibition.

And Twisden and Rainsford concurred, That no Prohibition ought to go.

It was then objected, That this Bill was not well exhibited, for it was directed Cancellario only; whereas the Court is holden coram Cancellario & Concilio.

Hale said, That would not be material, for in Ed. 1. time the Stile of the Kings Bench was coram Rege & Concilio, and the Writ de Ideota examinando, commands the Ideor to be brought coram nobis & Concilio nostro apud Westmon', and anciently Bills were so directed in Chancery, but since have been altered.

Maddys Case.

JOhn Maddy was indicted, for that he ex malitia sua praecogitat' felonice murdravit Franc' Mavers, upon which he was arraigned at the Assizes in Southwark, and pleaded Not guilty; and the Jury found a Special Verdict, by the direction of Justice Twisden then Judge of Assize there, which was to this effect.

That Maddy coming into his House, found Mavers in the act of Adultery with his the said Maddys Wife, and he immediately took up a Stool and struck Mavers on the Head, so that he instantly died.

They found that Maddy had no precedent malice towards him, and so left it to the Iudgment of the Court, whether this were Murder or Manslaughter.

The Record was this Term removed into the Kings Bench by Certiorari, and Maddy brought by Habeas Corpus. And the Court were all of Opinion that it was but Manslaughter, the provo­cation being exceeding great, and found that there was no pre­cedent [Page 159] Malice; and it was taken to be a much stronger Case than Royley's Case, 2 Cro. 296. Where the Son of Royley coming home with a Bloody Nose, and telling his Father that such an one beat him in such a Field, to which Field (which was a mile off) the Father immediately run, and found him that had beat his Son there, and killed him, all which was found upon a Special Verdict; and resolved to be but Manslaughter.

But Twisden said there was a Case found before Justice Jones, which was the same with this, only it was found, that the Pri­soner being informed of the Adulterers familiarity with his Wife, said he would be revenged of him, and after finding him in the Act, killed him, which was held by Jones to be Murder. Which the Court said might be so, by reason of the former declaration of his intent; but no such thing is found in the present Case.

Barber versus Fox.

TRrin. 22 Car. 2. Rot. 855. In an Assumpsit the Plaintiff de­clared, That the Ancester of the Defendant became bounden to him in a certain Sum, and afterwards died, and that he de­manded it of the Defendant being his Heir; and the Defendant in consideration, that the Plaintiff would forbear to Sue him for such a time, promised he would pay him.

To this the Defendant pleaded Non Assumpsit, and a Verdict was found for the Plaintiff.

It was moved in Arrest of Judgment, for that at the time of the Promise there doth not appear, that there was any cause of Suit agaist the Heir; for 'tis not set forth, that the Ancester did bind his Heirs, and the Consideration is not here to forbear to Sue generally, but to stay a Suit against the Defendant, whom he could not Sue.

To which it was answered, That after a Verdict it shall be intended, there was cause of Suit, as Hob. 216. Bidwell and Cattons Case. And Attorney brought an Assumpsit upon a Promise made to him, in Consideration that he would stay the Prosecution of an At­tachment of Priviledge; and there held that it need not appear, that there was cause of Suit, for the Promise argues it, and it will be presumed. And here 'tis a strong intendment, that the Bond was made in Common Form, which binds the Heirs.

But Iudgment was given against the Plaintiff; for the Court said it might be intended, that there was cause of Action, if the contrary did not appear, which it doth in this Case, for the Bond cannot be intended otherwise than the Plaintiff himself hath ex­pressed it, which shews only, that the Ancestor was bound. And whereas it was said by the Plaintiff's Counsel, that this would at­taint the Jury, they finding Assumpsit upon a void Promise.

[Page 160] Hale said there was no colour for that conceit, The Plaintiff having proved his Promise, and Consideration as 'twas laid in the Declaration, which is the only thing within their charge up­on Non Assumpsit, modo & forma.

Bulmer versus Charles Pawlet, Lord Saint John.

IN an Ejectment upon a Tryal at Bar this question arose upon the Evidence.

Tenant for Life Remainder in Tail to J. S. joyn in a Fine. J.S. dies without Issue, whether the Conusee should hold the Land for the Life of the Tenant for Life.

Serjeant Ellis pressed to have it found Specialy, tho' it is resolved in Bredons Case, that the Estate of the Conusee shall have Continu­ance; but he said it was a strange Estate, that should be both a Determinable Fee, and an Estate pur auter vie; and he cited 3 Cro. 285. Major and Talbots Case, where in Covenant the Plaintiff sets forth, that a Feme Tenant for Life, Remainder in Fee to her Husband, made a Lease to the Defendant for years, wherein the Defen­dant covenanted with the Lessors, their Heirs and Assigns to repair; and they conveyed the Reversion to the Plaintiff, and for default of Reparations, the Plaintiff brought his Action as Assignee to the Husband: And resolved to be well brought, because the Wives Estate passed as drowned in the Fee.

The Court said, Bredons Case was full in the point; but the Reason there given, Hale said, made against the Resolution; for 'tis said, that the Remainder in Tail passes first, which if it does the Freehold must go by way of Surrender and so down; but they shall rather be construed to pass insimul & uno flatu, Hob. 277 In Englishes Case, it was resolved, it Tenant for Life Remainder in Tail to an Infant joyn in a Fine, if the Infant after Reverse the Fine, yet the Conusee shall hold it for the Life of the Conusor, 1 Co. in Bredons Case, and he resembled it to the Case, in 1 Inst. a Man seized in the right of his Wife, and entituled to be Tenant by the curtesie joyns in a Feoffment with his Wife, the Heir of his Wife shall not avoid this during the Husbands Life.

Nevertheless he told Ellis, That he would never deny a Special Verdict at the request of a Learned Man; but it ap­pearing, that he Plaintiff had a good Title after the Life should fall, the Defendant bought it of him, and the Jury were dis­charged.

Sacheverel versus Frogate.

PAs. 23 Car. 2. Rot. 590. In Covenant, the Plaintiff declared, That Jacinth Sacheverel seized in Fee, demised to the Defen­dant certain Land for years, reserving 120 l Rent. And therein was a Covenant; that the Defendant should yearly, and every year, during the said Term, pay unto the Lessor, his Executors, Administrators and Assigns the said Rent; and sets forth, how that the Lessor devised the Reversion to the Plaintiff, an for 120 l Rent since his decease he brought the Action.

The Defendant demanded Oyer of the Indenture, wherein the Reservation of the Rent was yearly during the Term to the Lessor, his Executors, Administrators and Assigns, and after a Covenant prout the Plaintiff declared, and to this the Defendant demur­red.

It was twice argued at the Bar, and was now set down for the Resolution of the Court, which Hale delivered with the Rea­sons.

He said they were all of Opinion for the Plaintiff. For what interest a Man hath, he hath it in a double capacity, either as a Chattel, and so transmissible to the Executors and Administrators, or as an Inheritance, and so in capacity of transmitting it to his Heir.

Then if Tenant in Fee makes a Lease, and reserves the Rent to him and his Executors, the Rent cannot go to them, for there is no Testamentary Estate. On the other side, if Lessee for a 100 years should make a Lease for 40 years, reserving Rent to him and his Heirs, that would be void to the Heir.

Now a Reservation is but a Return of somewhat back in Retribution of what passes; and therefore must be carried over to the Party which should have succeeded in the Estate if no Lease had béen made, and that has béen always held, where the Reser­vation is general.

So, tho' it doth not properly create a Fee, yet 'tis a descendi­ble Estate; because it comes in lieu of what would have descended; therefore Constructions of Reservations have been ever according to the Reason and Equity of the thing.

If two Joynt-teants make a Lease, and reserve the Rent to one of them, this is a good to both, unless the Lease be by Indenture; because of the Estoppel, which is not in our Case, for the Executors are Strangers to the Deed.

'Tis true, if A. and B. joyn in a Lease of Land, wherein A. hath nothing, reserving the Rent to A. by Indenture, this is good by Estoppel to A. But in the Earl of Clare's Case it was resolved, That where he and his Wife made a Lease reserving a Rent to [Page 162] himself and his Wife and his Heirs, that he might bring Debt for the Rent; and declare as of a Lease made by himself alone, and the Reservation to himself; for being in the Case of a Feme Co­vert, there could be no Estoppel, altho' she signed and sealed the Lease.

There was an Indenture of Demise from two Joynt tenants re­serving 20 l Rent to them both; one only sealed and delivered the Deed, and he brought Debt for the Rent, and declared of a Demise of the Moiety, and a Reservation of 10 l Rent to him. And re­solved that he might. Between Bond and Cartwright (which see before) and in the Common Pleas, Pas. 40. Eliz. Tenant in Tail made a Lease reserving a Rent to him and his Heirs, It was resolved a good Lease to bind the Entail, for the Rent shall go to the Heir in Tail along with the Reversion, tho' the Reservation were to the Heirs generally. For the Law uses all industry imaginable, to conform the Reservation to the Estate. Whitlocks Case, 8 Co. is very full to this, where Tenant for Life, the Remainder over so set­led by Limitation of uses, with power to the Tenant for Life to make Leases, who made a Lease reserving Rent to him, his Heirs and Assigns,

Resolved, That he in the Remainder might have the Rent up­on this Reservation.

So put the Case, That Lessee for a 100 years should let for 50, reserving a Rent to him and his Heirs during the Term; I con­ceive this would go to the Executor. 'Tis true, if the Lessor re­serves the Rent to himself; 'tis held, it will neither go to the Heir or Executor: But in 27 H. 8. 19. where the Reservation is to him and his Assigns, It is said, that it will go to the Heir. And in the Case at Bar the words Executors and Administrators are void; then tis as much as if reserved to him and his Assigns during the Term, which are express words declaring the intent, and must govern any implied construction, which is the true and particu­lar Reason in this Case.

The Old Books that have been cited have not the words during the Term. Vid. Lane 256. Richmond and Butchers Case indeed is judged contrary in point, 3 Cro. 217. but that went upon a mi­staken ground, which was the Manuscript Report 12 E. 2. Where­as I suppose the Book intended was, 12 E. 3. Fitz. Assize. 86. for I have appointed the Manuscript of E. 2. (which is in Lincolns Inn Library) to be searched,6 Co. 62. and there is no such Case in that year of E. 2. The Case in the 12 E. 3. is, A Man seized of two Acres, let one, reserving Rent to him, and let the other, reserving Rent to him and his Heirs; and resolved, that the first Reservation should determin with his Life, for the Antithesis in the Reservation makes a strong Implication that he intended so. In Wotton and Edwins Case, 5 Jac. the words of Reservation were Yeilding and Paying to the [Page 163] Lessor, and his Assigns. And resolved, that the Rent determined upon his Death. In that case there wanted the effectual and ope­rative Clause during the Term.

The Case of Sury and Brown is the same with ours in the words of Reservation; and the Assignee of the Reversion brought Debt, Lane 255. and did not aver the Life of the Lessor. And the Opinion of Jones, Croke and Doderidge was for the Plaintiff; Latches Rep. 99.

The Law will not suffer and Construction to take away the energy of these words, during the Term.

If a Man reserves a Rent to him or his Heirs, 'tis void to the Heir, 1 Inst. 214. a. But in Mallorys Case, 5 Co. where an Abbot reserved a Rent during the Term to him or his Successors, it was resolved good to the Successor.

It is said in Brudnels Case, 5 Co. that if a Lease be made for years, if A. and B. so long live, if one of them dies the Lease Determines, because not said, if either of them so long lives. So it is in point of Grant. But it is not so in point of Reserva­tion, for Pas. 4 Jac. in the Common Pleas between Hill and Hill, The Case was, a Copyholder in Fee, (where the Custom was for a Widows Estate) made a Lease by Licence, reserving Rent to him and his Wife during their lives, (and did not say, or either of them,) and to his Heirs: It was resolved,

First, That the Wife might have this Rent, tho' not party to the Lease.

Secondly, That tho' the Rent were reserved during their lives, yet it should continue for the life of either of them; for the Re­version, if possible, will attract the Rent to it, as it were by a kind of Magnetism.

Hoskins versus Robbins.

A Replevin for six Sheep. The Defendant makes Conusance, &c. for Damage Fesant: The Plaintiff replied, That the place where, was a great Wast, parcel of such a Mannor, within which there were time out of mind Copyhold Tenants, and that there was a Custom in the Mannor, that the said Tenants should have the sole and several Pasture of the Wast, as belonging to their Tenements, and shews, that the Tenants licenced him to put in his Beasts.

The Defendant Traverses the Custom, and found for the Plain­tiff. The exceptions moved in Arrest of Judgment, were now spoken to again.

First, That the Custom to have the sole Pasture, and thereby to exclude the Lord, is not allowable. It hath béen ever held, That such a Prescription for Common is not good, and why should the same thing in effect be gained by the change of the name?

[Page 164]That Prescription for Pasture, and Prescription for Common is the same thing. Vid. 3 Cro. Daniel v. Count de Hertford 542. and Rolls tit. Prescription 267. It is held, a Man may claim Common for half a year, excluding the Lord; and that one cannot prescribe to have it always so, is not because of the Contradiction of the Term; for if the sole Feeding be but for half a year, 'tis as improper to call it Common; but the true reason seems to be, because it should in a manner take away the whole profit of the Soil from the Lord, and he should by such usage lose his greatest Evidence to prove his Title; for it would appear that the Land was always fed by the Beasts of others; and it would be very mischievous to Lords, who live remote from their Wasts, or that seldom put their Beasts there, (as many times they do not) so that by the Tenants solely using to feed it, they should lose their Improvements provided for the Lords by the Statute, and so come at last for want of E­vidence to lose the Soil it self.

Secondly, This Custom is laid, To have the sole Feeding belong­ing to their Tenements, and 'tis not said for Beasts levant and cou­chant, or averred that the Beasts taken were so, 15 E. 4. 32. and Rolls tit. Common 398. Fitz. tit. Prescription 51. A Man cannot prescribe to take Estovers as belonging to his House, unless he Avers them to be spent in his House, Noy 145. So 2 Cro. 256. tho' the Prescrip­tion was there to take omnes Spinas, for it is necessary to apply it to something which agrees in nature to the thing, Brownlow. 35.

Thirdly, Here the Plaintiff justifies the putting in his Beasts by a Li­cence, and doth not say it was by Deed, whereas it could not be with­out Deed; and so is the 2 Cro. 575.

Fourthly, Those defects are not aided by the Verdict, for they are in the right and of substance. But the Court were all of Opinion for the Plaintiff.

First, They held the Prescription to be good, (and being laid as a Custom in the Mannor, it was not needful to express the Copy­hold Estates) it doth not take away all the profit of the Land from the Lord; for his interest in the Trees, Mines, Bushes, &c. conti­nues. Co. Inst. 122. a. is express, that a Prescription may be for sola & separalis pastura'; and if it may be for half a year, upon the same reason it may be for ever. An interest of this nature might have commenced by grant, 18 E. 3. the Lord granted to the Te­nant that he would not improve; tho' it may be such a Grant were not good at this day.

The Court were agreed in this point, in the Case between Porter and North, brought here about three years since; the principal doubt in that Case was, whether the Freeholders and Copyholders could in pleading alledge a Joint Prescription for the Sole Pasture; and for the mischief alledged, that this might be obtained from every Lord, that had not of a great many years used his Common, [Page 165] Hale said, It would not be sufficient to prove an Vsage for the sole Pasture, to shew that the Tenants had only fed it; unless it were proved also, that the Lord had been opposed in putting in his Cattle, and the Cattle Impounded from time to time.

To the Second Objection: They held that Levancy was not material in this case, because the sole Feeding is claimed. So where Common for a certain number of Beasts is claimed, 'tis possible between the Tenants there may be some proportioning of it, that one may not eat up all from the rest; but 'tis not material to the Owner of the Soyl. And Twisden said, it was Resolved in this Court, between Stonell and Masselden, that want of averment of Levancy and Couchancy was aided by a Ver­dict.

Thirdly, Tho' the Licence is not shewn to be by Deed, they Resolved it was well enough. 'Tis true, if the Licence were to make Title against the party which gave it, there would be greater question: For 'tis nothing to the Plaintiff, who it appears had not Damage; at the most, it is but a Mispleading aided by 32 H. 8. And the Plaintiff waved this matter, and took Issue upon the Custom, which is the material Point,Vid. 2 Cro. 377. and it is found against him. There might have been more colour upon a De­murrer. Ante.

Anonymus.

A Prohibition was granted to a Suit for Fees in the Ecclesi­astical Court by an Apparitor, upon a Suggestion that there were no such Fees due by Custom.

For that it tryable at Law, and not by a Decinaria or Vice­naria praescriptio, which is allowed in their Courts: But they may Sue there for their due and customary Fees.

Brell versus Richards.

ERror upon a Judgment in the Common Pleas, in an Ejectment against Eight Defendants, and the Writ was, Ad grave dampnum ipsorum; the Judgment was only against Three, and the other Five were acquitted. The Error was assigned in the Nonage of the Three.

It was moved, Whether the Writ of Error was well brought; or whether the Judgment should reversed in toto?

The Court Resolved, that the Writ was good,Hob. 70. Yelv. 209. tho' it might be also ad damnum only of those Convicted: But being only in the nature of a Commission, whereby the King commands the Errors to be examined, this matter is not material.

[Page 166]And Twisden said, that the constant Practice is; for all to joyn: And they all held, That the Judgment ought to be Reversed against all.

Sir Anthony Bateman's Case.

UPon a Trial at Bar, the Question was, Whether he were a Bankrupt, or no?

It was proved that he was a Turky Merchant, and Traded in the Year 1656; but it was not proved, that he had afterwards Imported or Exported any thing, but having the Effects of his former Trade by him to a great Value, he shewed them to several, and obtained the Loan of divers Sums of Money upon the Credit of them.

The Court held, that this brought him within the Statute, for such Debts as he Contracted after 1656, otherwise the Mischief would be great; for Men cannot take notice when another withdraws his Trade, or when he Commands his Factors beyond Sea to Deal no further for him; but they seeing great quantities of Goods and Merchandize in his hands are apt to Trust him: Wherefore 'tis fit that they should be Relieved by the Statute.

Anonymus.

AN Administrator brought a Writ of Error upon a Judgment given in an Ejectment against the Intestate.

It was held, that he should pay no Costs, tho' the Judgment were affirmed, and the Writ brought in dilatione Executionis.

The Bishop of Exeter versus Starr.

IN Debt upon a Bond, the Condition recited, That whereas the Obligor was Excommunicated for not coming to Church, and that the now Plaintiff at his Instance and Request had absolved him: That if he should obey all the lawful Commands of the Church, that then, &c.

The Defendant Demurred, supposing the Condition to be against Law, and so the Bond void.

Hale said, If a man were Excommunicated, there was a Writ De cautione admittenda; and sometimes they took an Oath of the party, Ad parendum omnibus Ecclesiae mandatis licitis & honestis, and that was called Cautio juratoris; and sometimes Cautio pig­noratitia was given.

1 Bulstr. 122.He said also, It was held 8 Car. in Com. Banco, that where the Ecclesiastical Court took a Bond of an Administrator, to make distribution of what remained of the Intestates Estate after Debts and Legacies satisfied, or to dispose so much to Pious uses, that [Page 167] the Bond was void; for they presumed the party in such cases to be under a kind of Coertion. Et Adjornatur.

Isaac versus Ledgingham.

IN a Replevin, the Defendant avowed for Suit of Court.

The Plaintiff Replies, and confesseth himself Tenant of the Mannor; and saith, That there are very many Tenants of the Mannor, and that there is a Custom, That if those Copy­holders which live remote from the Mannor, pay Eight pence to the Steward of the Court for the Lord, and 1 d to himself for the Entring of it, that they should be excused of doing their Suit for One year after the said payment; and alledgeth, That he lives 10 Miles from the Mannor, and that he tendred the 8 d and 1 d and both were refused.

To this the Avowant Demurred:

First, The Custom is unreasonable; for by means of it no Court can be kept, if so be all the Tenants live remote.

Secondly, The Plaintiff hath not brought himself within the Cu­stom; for that is to be discharged upon payment, and not upon tender and refusal: And the Construction of Customs is always strict to the Words, and not with that latitude as is used in Contracts.

Hale: 'Tis Custom gives the Suit, and consequently may qualifie it: The Doubt arises, because the Plaintiff hath not alledged, that there are any Tenants live near or within the Mannor; or whether that ought to be shewn on the other side, if it be not so; because the Intendment is strong, that there are. Therefore a By-Law in a Mannor binds the Tenants without notice; because they are supposed to be within the Mannor.

For the other matter they all held, that Tender and Refusal, was as much as Payment.

And Twisden said, It was Resolved,8 Co. 76. 1 Inst. 203. 1 Rolls 129. 9 Co. 79. where an Award was made that A. should pay B. 10 l and that B. super receptionem decem librarum should Release: That he was bound to release it, if the Money were offered, tho' he should refuse it, Wherefore they gave Judgment for the Plaintiff.

Sir John Goriton and Harvey versus Lithby.

PAsch. 22 Car. 2. Rot. 331. In an Action upon the Case the Plaintiffs declared, that there were Four ancient Mills within a Mannor.

And that J.C. was seised in Fee of Two of the Mills, and J. H. of the other Two; and laid a Prescription in each. That they had kept the Mills in Repair, and found Grinders, to the intent [Page 168] that the Tenants of the Mannor might Grind at them; and that Time out of mind the Tenants had Ground omne frumentum, to be spent in their Houses, at the Mills of J. C. or at the Mills of J. H. And for that the Defendant spent Corn which was ground at neither of the Mills, they brought this Action.

To this Declaration the Defendant Demurred:

First, For that they joyn in the Action, and so the one shall recover Damages for not Grinding at the others Mill, which is no loss to him.

Secondly, The Prescription is for Grinding all the Corn to be spent in the Houses of the Tenants, which is unreasonable; for a great deal of Corn is used which is not proper to Grind. So it was said to be Adjudged between Aylett and Charlesworth 1654. in B.R. that the Prescription ought to be laid for all Corn, trituran­dum & consumendum in their Houses. And this last Exception was held to be material by all the Court.

But they conceived the Action might be brought by both; for otherwise there could be no remedy upon the Prescription. For singly they could not bring it; because Grinding at any of the Mills would excuse the Defendant.

But Hale said, the Declaration was naught; because it is, That the Defendant ought to Grind at the Mills of J. C. or J. H. which is true, if either of them hath an ancient Mill, altho' the other hath no pretence or right upon the Prescription: And therefore it ought to have been laid thus; That such Corn, &c. as was not Ground at the Mills of J, C. ought to be Ground at the Mills of J. H. and then have Averted, That the Defendants Corn was Ground at neither of them. It was Adjudged for the Defendant.

Skinner versus Webb.

Scire facias.THe Case was this: A Judgment was recovered in this Court in an Action upon the Case upon a Bill of Exchange, and a Scire facias was brought Quare execution', &c. and a Judg­ment upon that; upon which a Writ of Error was brought in the Exchequer Chamber, and the Judgment was affirmed; after which the Defendant died, and a Scire facias (reciting the Judgment, and Affirmance of it in the Exchequer Chamber) was brought against the Administrator, and Judgment had upon that; and the Administrator brought Error upon the Judgment in the last Scire facias.

The Court were moved, not to allow this Writ of Error, or at least not to supersede Execution, by reason of its being a second Writ of Error.

And the Court held, that this Writ of Error did not lye into the Exchequer Chamber; tho' it hath been Resolved, that such Writ [Page 169] of Error lies in the Exchequer Chamber, (by the Statute of the 27th of Eliz.) upon a Judgment in a Scire facias, recovered upon a Judgment in an Action brought by Bill in this Court; because 'tis in Execution of the Judgment, and is (as it were) a piece of the first Action. Other­wise of a Judgment in a Scire facias upon a Recognizance, or the like.

Now this Scire facias is brought upon a Judgment affirmed in the Exchequer Chamber, which therefore is priviledged from any other Writ of Error to be brought upon it there: So that this Writ of Error can be brought only upon the Judgment given in the Scire facias; and therefore it doth not lye into the Exchequer Chamber.

Jacob Hall's Case.

COmplaint was made to the Lord Chief Justice by divers of the Inhabitants about Charing Cross, that Jacob Hall was erecting of a great Booth in the Street there, intending to shew his Feats of Activity, and Dancing upon the Ropes there, to their great Annoyance, by reason of the Crown of idle and naughty People that would be drawn thither, and their Apprentices inveigled from their Shops.

Vpon this the Chief Justice appointed him to be sent for into the Court, and that an Indictment should be presented to the Grand Jury of this matter; and withal the Court warned him, that he should proceed no further.

But he being dismissed, they were presently after informed, that be caused his Workmen to go on. Whereupon they Commanded the Marshal to fetch him into Court: And being brought in and demanded, How he durst go on in contempt of the Court; He with great Impudence affirmed, That he had the King's Warrant for it, and Promise to bear him harmless.

Then they requited of him a Recognizance of 300 l that he should cease further Building; which he obstinately refused, and was Committed: And the Court caused a Record to be made of this Nusans, as upon their own view (it being in their way to Westminster); and awarded a Writ thereupon to the Sheriff of Middlesex, Commanding him to prostrate the Building.

And the Court said, Things of this nature ought not to be placed amongst Peoples Habitations, and that it was a Nusans to the King's Royal Palace; besides, that it straitned the Way, and was insufferable in that respect.

The King versus Wright.

AN Indictment was against him for suffering of two persons to escape, qui commissi fuerunt by the Justices of the Peace, for an Offence against the Statute of 8 H. 6. of Forcible Entry.

[Page 170]After Verdict for the Plaintiff, and Judgment, a Writ of Error was brought, and assigned for Error, That it was not expressed how the Commitment was, whether upon View of the Justices, or Verdict upon an Indictment; so that it doth not appear that they were legally Committed, nothing of the Proceedings being set forth, and 'tis not so much as said, debito aut legitimo modo commissi fuerunt. If a man be Indicted of Perjury in his Oath sworn before a Master in Chancery; it must be shewn, that the Master had an Authority to take an Oath.

And the Court doubted at first, and commanded the Clerk of the Crown to search Presidents, and he found that they were most debito modo commissi; but some without that Clause: And the Court held, it being but inducement to the Offence whereupon this Indictment is, that it was well enough alledged, and after the Verdict they must intend the Commitment was legal. Vide Crompton's Justice of the Peace 252. a. and 255. there are two Presidents like this.

Note, It was said by Hale, that upon non Assumpsit Infancy might be given in Evidence, tho' upon Non est factum it could not.

The King versus Alway and Dixon.

ERror to Reverse a Judgment upon an Indictment; because the Award of the Venire was Entred, Praeceptum fuit Vice­comiti, &c. which is more like an Hystory of the Record, than the Record it self; for it ought to be Praeceptum est, and so are the Presidents: And for this Cause it was Reversed.

Waldron versus Ruscarit.

Hill. ult. Rot. 225. In an Ejectment a Special Verdict was found, That one levied a Fine of all his Lands in Saint Inderion in Cornwal, and that he had Lands in Portgwyn, and that the Constables of Saint Inderion exercised their Authority in Portgwyn; and that Porgwyn had a Tythingman.

And whether this Fine conveyed the Lands in Portgwyn was left to the Iudgment of the Court, and Resolved that it did.

A Parish may contain ten Vills, and if a Fine be levied of the Lands in the Parish, this carries whatsoever is in any of those Vills. So where there are divers Vills, if the Constablewick of the one goes over all the rest, that is the Superiour or Mother Vill, and the Land which is in the other shall pass per nomen of all the Lands in that: And tho' it be found that Portgwyn had a Tythingman, Decenarius, which prima facie is the same with a Constable, and differed little in the Execution of that Office con­cerning [Page 171] Keeping the Peace: Yet Hale said, He was not the same Officer; and 'tis found that the Constables of St. Inderion have a superintendency over Portgwyn, and therefore 'tis but as an Hamlet of St. Inderion. But if found that they had distinct Constables, and could not interfere in their Authority, it would be otherwise, Owen 60.

Note, It was said by the Court, That if there be a Conviction of a Forcible Entry upon the View of the Justices of the Peace, no Writ of Error lyes upon it; but it may be Examined upon a Certiorari.

The King versus Green & al'.

THey were Indicted for refusing to take the Oath of Allegi­giance contained in the Statute of 3 Jac. tendred to them at the Sessions of the Peace.

One appeared, and the Entry was Nihil decit, &c. ideo remansit Dom' Rex versus eundem indenfensus.

And the other were Convicted, and Judgment given quod forisfaciant omnia bona & catalla, terr' & tenementa Domino Regi, & extra protectionem Dom' Regis ponantur & committuntur, & quilibet eorum committitur Gaolae. They brought Error. And,

First, It was moved, that the Indictment was for refusing the Oath contained in the Statute of 3 Jac. in his Anglicanis Verbis, (Viz.) I do truly and sincerely acknowledge, &c. that our Sovereign Lord, King Charles the Second, is Rightful King of this Realm, &c. Whereas the Statute is King James; and the words of the Statute are, That the Justices of the Peace shall demand of such persons there mentioned, to take the Oath hereafter following. So that 'tis tyed up to that Oath in terminis, and then it cannot be Ad­ministred after the Death of King James. And the diversity of the Penning of this Act of 3 Jac. and the Act of 7 Jac. was observed in the last; the words are, Shall take and receive an Oath according to the Tenour and Effect of the Oath contained in 3 Jac: which is as much as to say, the same Oath in substance. So the Act of 1 Eliz. cap. 1. is, That the Oath shall be taken according to the Tenour and Effect hereafter following. Therefore it was Ob­jected, that the Indictment might have been upon the Act of 7 Jac. but not upon 3 Jac. which it was conceived was tyed up to the Person of King James, and therefore determined by his Death. As if a Lease be made durante bene placito Regis nunc, it doth end by the Dimise of that King that made it: Otherwise, if it be durante bene placito Regis, Moor pl. 311. And though these Statutes for the Oath of Allegiance be General Laws, and need not have been recited; yet when an Indictment is grounded upon an Act therein mentioned, which will not maintain it, it shall not be made good upon any other General Act.

[Page 172] Secondly, Another Matter insisted upon for Error, was in the Entry of the Nihil dicit, which was, Ideo remansit Dom' Rex versus eundem indefensus, whereas it ought to have been remanet, and so the Record it self must express: But as it is, 'tis but an History of the Record, and therefore upon Indictments where the Award of the Venire is Praeceptum fuit, 'tis not good, but should he Praeceptum est.

Thirdly, An Exception was taken to the Venire, which Com­mands the Sheriff to Return 12 probos & legales homines, qui nec Dom' Regem nec aliquam partem aliqua affinitate attingunt; whereas in the King's Cases his Kindred may be Returned, and therein no Challenge to the Favour, neither ought the Sheriff to be restrained from Returning them.

Fourthly, The Judgment is, Committuntur, & quilibet eorum com­mittitur, which is an Execution of the Judgment, that should have been given, and not the Judgment it self, which ought to have been Committantur, &c. as 'tis extra protectionem Domini Regis ponantur, and not ponuntur.

Fifthly, It was alledged, that the Statute was mis-recited in two places:

1. For See of Rome, it is written Sea of Rome; so instead of sedes Romana, it is mare Romanum, which makes it to be no Sense.

2. The Words of the Statute are, I do declare in my Con­science before God, whereas the Indictment is, I do declare, &c. in Conscience, and leaves out my.

It was also Objected, That the words of the Act being, That such as refuse the Oath shall incur the danger and penalty of Praemunire mentioned in the Statute of 16 R. 2. which Enacts, That Process shall be made against the Offenders therein mentioned by Praemunire facias, in manner as 'tis Ordained in other Statutes. And it appears that no such Process was made upon this Indictment; wherefore the Statute is not observed.

Curia. The first Error was disallowed by all the Court, and held clearly, that the Judgment was well grounded upon the Statute of 3 Jac. For the naming of the King is but an instance of the thing as it stands at present; and it might as well be objected, that the Oath in the Statute is, I A.B. do swear, &c. And tho' some Statutes say according to the Tenour and Effect, and this is the Oath hereafter following; it was held to be all one, for according to the Tenour and Effect, and according to the words are all one, as where a Certiorari is to certifie Tenorem Recordi.

The second was held to be Error, and that the Iudgment given upon the nihil dicit must be reversed, (for there were several Iudg­ments given) (viz.) One upon that, and another given against the rest, which therefore was not affected by the Error.

[Page 173]The fourth was overruled; for where the Party is present, the Iudgment is always quod committitur, as appeared by the Pre­sidents.

Fifthly, the Variances from the Statute were not held to be ma­terial; for in Old writings 'tis written Sea of Rome; and declaring in Conscience, and in my Conscience, are the same.

The sixth Error was also disallowed, for the words of the Statute are, shall incur the danger and penalty of Praemunire mentioned in 16 R. 2. which doth not necessarily bind up to the Process; Vid. 16 R. 2. 5. which makes this very clear. but means that such Iudgment and Forfeiture shall be, and it ap­pearing that the Parties were present, there was no need of any Process.

But as to the third Exception which was taken to the Venire, they said they would be advised until the next Term; and they told the Prisoners (who were Quakers, and had brought a Paper which they said contained their acknowledgment of the Kings Authority, and Profession to submit to his Government; and that they had no ex­ception to the matter contained in the Oath, but to the Circum­stance only, and that they durst not take an Oath in any Cause which they prayed might be read, but it could not be permit­ted) that their best course were to supplicate his Majesty in the mean time for his Gracious Pardon.

Radly and Delbow versus Eglesfield and Whital.

IN an Action sur 13 R. 2. cap. 5. & 2. H. 4. cap. 11. for suing the Plaintiff in the Admiralty, for a Ship called the Malmoise, pretending she was taken piratice; whereas the Plaintiff bought her infra corpus Com. It seems there was a Sentence of Ad­judication of her, to be lawful Prize in Scotland in April 1667. as having carried bellicos apparatus (i.e. Contraband Goods in the late Dutch War,) and the Plaintiff bought her here under that Title.

The Libel was, That the Ship belonged to the Defendants, and about January 1665 was laden with Masts, &c. and had Letters of safe conduct from the Duke of York to protect her from Concus­sion, &c. and that certain Scottish Privateers did practise to take the said Ship; and after the Defendants took her, and being reque­sted, refused to deliver her, and that ratione lucri cessantis & dam­ni emergentis, they suffred so much loss, &c.

The Defendants pleaded Not guilty to this Action, and upon the Tryal would not examin any Witnesses, but prayed the Opi­nion of the Court; who said there was good Cause upon the Libel, (which now they must take to be true) in the first instance for the Admiralty to proceed. In 43 Eliz. it was resolved,1 Cro. 685. Yelv. 125. Sty. 418. If Goods are taken by Pirates on the Sea, tho' they are sold afterwards at Land, [Page 174] yet the Admiralty had Conusans thereof; for that which is inci­dent to the original matter, shall not take away the Iurisdiction, and that is Law, tho' there were another Resolution in Bingleys Case, 1 Rolls 531 Hob. 78. 3 Jac.7 Ed. 4. 14. and 22. Ed. 4. If Goods are taken by an Enemy, and retaken by an Englishman the property is changed: Otherwise, if by Pirates. And if in this Case the taking were not Piraticè, it ought to have béen alledged on the other side. Had the Sentence in Scotland béen pleaded in the Admiralty, the Court would have given deference to it; as if a Man had a Judgment in Com­muni Banco, and should begin a Suit for the same in Banco Re­gis; This might be made a good Plea to the Suit, but not to the Iurisdiction; for, for ought appeared this might have been the first Prosecution, and no Proceedings might have béen in Scot­land.

This came to be tryed at the Nisi prius before Hales, who was of the Opinion, ut supra, then. But because it was a cause of weight, he ordered it to be tryed at the Bar. And because 'twas for his satisfaction, and for a full Resolution, the Jury was paid between the Parties. Note, A Proctour sworn a Witness said, when this Cause was in the Admiralty, there was a provisionate Decree, as they call it, or primum Decretum, which is a Decree of the Possession of the Ship, and upon that an Appeal to the Delegates; but my Lord Keeper being informed, that no Appeal to them lay upon it, because it was but an interlocutory Decree, upon hear­ing of Counsel he superseded the Commission.

When a Ship is so seized upon security given, 'tis the course of the Admiralty to suffer her to be hired out.

Watkins versus Edwards.

PAsch. 22 Car. 2. Rot. 408. An Action of Covenant was brought by an Infant per Guardianum suum, for that he being bound Apprentice to the Defendant by Indenture, &c. the Defendant did not keep,5 Eliz. c. 4. maintain, educate and teach him to his Trade of a Draper as he ought, but turned him away.

The Defendant pleads, That he was a Citizen and Freeman of Bristol; and that at the General Sessions of the Peace there, there was an Order made, that he should be discharged of the Plaintiff for his disorderly living, and beating of his Master and Mistress; and that this Order was Enrolled by the Clerk of the Peace, as it ought to be, &c. To this the Plaintiff Demurrs.

The First question was, Whether the Statute extends to all Ap­prentices, or only such as are imposed upon their Master by the Justi­cies and compellable to serve. And Hale and Moreton inclined, That it did not extend to all Apprentices. Twisden and Rainford contrary.

[Page 175] Secondly, Whether they had power to discharge the Master of his Apprentice, as they might, & è Converso.

Hale conceived they could not, But cause the Servant to have due Correction, in case the Master complained of him.

Twisden, Rainsford and Moreton Contra. Hank­worthy's Case. For he may be so in­corrigible, that the Master cannot keep him without standing in con­tinual fear; and in Mich. 21, and Hill. 2. & 22 Regis nunc, upon the removal of an Order of Sessions from York, it was resolved, That the Master might be eased of his Apprenetice by the Sessions upon just cause. And Twisden said, Shelton Clerk of the Peace for Middlesex informed him, that such Orders are frequently made.

Thirdly, The great question was, whether the Defendant ought not to have applied himself to one Justice first, as the Statute di­rects; that he he might (if he could) have settled the business, and if not, then to go to the Sessions, and not to go thither per saltum, as upon the Statute of the 18 Eliz. cap. 3. The Sessions cannot make an Order for keeping of a Bastard, but upon an Ap­peal from the two Justices, which are first to make an Order.

Hale, This case differs; for the 18 Eliz. gives the first Men power to make an Order, which shall bind the Parties until it is avoided by Appeal; but this Statute of 5 Eliz. gives no Iuris­diction to the first Man, for he is only to compound the business if he can.

Twisden, The discharge being set forth in an Order, we must intend it duly made; 'tis the common practice to go to the Ses­sions first. (It was moved at first, that it did not appear that the Plaintiff had Notice; but that Point was waided, for being in a judicial proceeding, it shall be intended.) Et Adjurnatur.

Lucy versus Levington.

PAsch. ult. Rot. 96. Covenant by the Plaintiff as Executor of J. S. for that the Defendant covenanted with J.S. his Heirs and Assigns to levy a Fine, &c. and that they should enjoy the Lands against all persons claiming under Sir Peter Vanlore; and then he says that Sir Robert Crooke, and Peter Vandebendy in the Te­stators life time, did enter claiming under Sir P. Vanlore, &c.

The Defendant pleads, That he had a good and indefeasible Title in the Lands at the time of the Covenant, by vertue of cer­tain Fines from Sir Ed. Powel and his Wife; but that in 13 Regis nunc, there was an Act of Parliament, by which these Fines were made and declared to be void, and that Sir R. C. and P. Vande­bendy had Title, and entred by reason of the Act, and not other­wise. (The Act which was pleaded in haec verba recites, that certain Men came with armed force, and thereby extorted, and took the Fines, &c.) And to this the Plaintiff demurred.

[Page 176]It was urged for the Defendant, That this Title was by mat­ter subsequent to the Covenant, and not any thing which was in being then; as 9 Co. 106. Sir T. Gresham conveys Land to certain uses, with power of Revocation, and then does revoke, and Aliens and dies; the Revocation was not warranted by his power, but was after made good by Act of Parliament, and then Process went out against his Widow for a Fine, for the Alienation of Sir T. G. the Lands being of capite tenure; but she was discharged, because the Alienation had its effectt by an Act of Parliament, which can do no wrong.

Twisden. 'Tis hard this should be a breach; for the Defendant cannot be intended to Covenant against an Act of Parliament, a thing out of his power. Baron and Feme levied a Fine, J. S. Co­venants, that the Conusee shall enjoy it, against all lawfully claim­ing from B. and F. brings Dower after the Death of B. the Conusee does not plead the Fine, but suffers Judgment and brings Cove­nant against J.S. and adjudged against him; for the Covenant shall not extend to a Right which is barred, and besides she did not claim lawfully. There is an Old Book which says, that if an Attainder be reversed by Parliament, the person shall have Tres­pass against him, which took the profits of his Land in the in­terim.

Hale. My Lady Greshams Case is not like this for there the party was in by the Queens consent to the Alienation by the Act she passed; but here the Covenant is broken, as much as if a Man recover Land, and then sell and Covenant thus, and then it be evicted in a Writ of Right; for this is in the nature of a Judg­ment. Tho' it be by the Legislative power, it may be the prospect of this Act was the reason of the Covenant; nor has the Defendant reason to complain, for the Act was made because of his own fraud and force. Every Man is so farr party to a private Act of Parliament, as not to gainsay it, but not so as to give up his Interest; 'tis the great question in Barringtons Case, 8 Co. the matter of the Act there directs it to be between the Forresters, and the Proprietors of the Soil; and therefore it shall not extend to the Commoners, to take away their Common. Suppose an Act says, Whereas there is a Controversie concerning Land between A. and B. 'Tis Enacted, That A. shall enjoy it, This does not bind others, tho' there be no saving, because it was only intended to end the difference between them two. Whereupon Iudgment was given for the Plaintiff.

It was agreed by all the Justices, that tho' the Covenant were made only to J. S. his Heirs and Assigns, and it were an Estate of Inheritance; yet the Breach being in the Testators Life time, the Executor had well brought the Action for the Damages.

Peter versus Opie.

IN an Assumpsit the Plaintiff declares, That there was an Agreement between him and the Defendant, that be (the Plaintiff) should pull down two Walls and build an House, &c. for the Defendant, and that the Defendant should pay him pro labore suo in & circa divulsionem, &c. 8 l and that in consideration that the Plaintiff assumed to perform his part, the Defendant assumed to perform his: and the Plaintiff avers, that he was paratus to perform all on his part, but that Defendant had not paid him the Money: And after a Verdict for the Plaintiff it was mo­ved in Arrest of Judgment, That he did not aver that he had done the work.

Hale. Pro labore, here makes a Condition precedent, and therefore the performance of the work ought to have been averred; for tho' in case of a Reciprocal Promise, performance need not be a­verred, yet if the Promise refers to an Agreement, which contains a Condition precedent, the performance of that must be averred; as if I should promise one to go to York, and in consideration of that he promise to pay me 10 l there needs no averment of my going to York; otherwise, if the Counter promise were to pay 10 l for my going to York. So if the Counter promise were to do a thing after a time (ascertained or to be ascertained,) it must be a­verred that the time is past. Therefore, that it is said by way of Reciprocal promise will not concern much, for every Agreement is a Reciprocal promise; but the matter is, what the Agreement is. Here tho' the Reciprocal promise, be the foundation of the Con­sideration, yet 'tis to be considered, that it refers to a Conditi­onal promise or an Agreement, and the Promise obliges not the Defendant to do it otherwise than according to the Agreement. Now to shew this pro labore makes a Condition precedent. Sup­pose the Agreement to be in writing thus, Memorand that J.S. agrees and promises to build, and J. N. promises to pay him so much for his pains, it cannot be taken but that the building must be prece­dent to the payment. 'Tis the common way of Bargaining, and in common dealing men do not use to pay before the work be done; it would be inconvenient to give cross Actions in such cases especially, since 'tis likely that the Workman is a poor Man. 'Tis true, if there be a time limited for the payment, which time may fall out before the work or thing be done, there the doing it, is not a precedent Condition. Vivian and Shipping, 3 Cro. An Award that one should pay 10 l and in Consideration thereof, the other should become bound, &c. adjudged the paying the 10 l was a Condition precedent, (5 or 15 H. 7. 10.) is our Case in Point, if the Plaintiff had alledged that he had offered to work, and the [Page 178] Defendant had hindred him, it had been good. The want of the Averment is not helped by the Verdict, for 32 H. 8. extends not to Declarations or Avowry's, but only to Pleading; if otherwise, there had béen no need of 21 Jac. cap. 13. to cure the want of a­verring the Parties Life.

Twisden Contra. There is no need of the Averrment, there be­ing Reciprocal promises, upon which the Parties have mutual re­medies, and relyed upon the case, 1 Roll. 46.

Rainsford agreed with Hale. Et Ajornatur.

Harwoods Case.

HE was committed to Newgate by the Court of Orphans, and upon an Habeas Corpus it was returned, That the City of London is an ancient City, and that time out of mind the Mayor and Aldermen have had the custody of Orphans within the City, until the Age of 21 or Marriage, and that there hath been time out of mind a Court of Record, (called the Court of Orphans) holden before them, having Conusance of all matters concerning Orphans, and that they had power to give Licence to Marry a Woman which was their Orphan, or to deny it upon reasonable cause; and if any one did Marry such Orphan without Licence first had from the said Court, that they might impose a reasonable Fine upon him, and if he should refuse to pay it, or to give Security, to commit him to Prison. It was also returned, That Harwood did Marry such an Orphan without Licence first obtained, whereupon he be­ing present in Court they fined him 40 l and he refusing to pay it, or give Security was committed.

To this return First it was objected, That this Custom shall not bind Strangers, in 1 Cro. 689. Deanes Case, who was imprisoned for refusing to find Sureties for the Good Behaviour, which was de­manded of him, because he called an Alderman Fool. It was re­turned, That if a Freeman commit such an Offence, &c. So in Andrews Case, in Hutton 30. one was Imprisoned for not giving Security for the payment of a Legacy, devised by his Testator to an Orphan, he is returned to be a Freeman.

Secondly, This Custom as returned is unreasonable, for it would oblige Strangers at what distance soever from London, who [Page 179] cannot take notice who are Orphans of the City; yet they should incur a penalty by Marrying them without leave from the City, and they have not returned, that Harwood Married the Orphan with­in the City; and therefore it must be intended that he did not, and in all other Points most advantagiously for him, in regard he cannot shew the truth of his Case by pleading to the Return. In an Action upon the Statute of Labourers, the Plaintiff declared, That he retained a Servant at London, and that the Defendant retained him within the Term he had contracted with him for. The Defendant pleaded, that he found him vagrant in another County, and there retained him, and held that it was a good plea, for he was not bound to take notice of a retenier by the Plaintiff, when it was in another County, 17 E. 4. 7. b. The difference is taken between Customs, general such as Gavelkind, and private particular Customs, the one everyone shall take notice of, but not the other, 3 Cro. Launder and Brooks Case. The Court of Orphans is a particular Iurisdi­ction, and not to be extended all over England; and it appears by the Books, that they may have a Ravishment of Ward, F.N. B. 142 B. Hob. 95. which therefore seems to be their proper remedy, rather than the course they have now taken.

Thirdly, The Custom is unreasonable, that they should impose the Fine who are to have it, and so to be Iudges and Parties.

Fourthly, It was alledged, That the Fine was unreasonable, which is not to be proportioned to the Portion the Orphan is to have, (which was shewn in the Return to be 800 l) but to the crime, for it doth not appear, that the City is to have the value of the Marriage, or any benefit by it; and in this Case there was no disparagement, for his quality deserved such a Portion, and he had the consent of her Friends.

But notwithstanding these Exceptions, to the Return it was resolved by all the Court, that he should be remanded.

As to the 1, that it is not returned, Harwood is a Freeman, the Court resolved, that it is not material, for in many Cases Stran­gers are bound by the Customs of London, as that of Foreign bought and Foreign sold, was resolved to be a good Custom, 15 Car. 2. between Hutchins and Players in Communi Banco.

2. Tho' it appears the Marriage was in a Foreign County, and not shewn that he had Notice; it is all one, for if that might be an excuse, the Government of Orphans by the City of London would be utterly insignificant, for it would be only to seduce the Orphan out of the Liberties of the City, and whatever pra­ctice there were to disparage her in a Marriage, it would be dispunish­able by them; and Notice in this case is impossible to be given, but most easie to be taken, for what more proper, than for a Man to inform himself of the Condition of her, whom he intends to [Page 180] make his Wife? and if Notice were requisite, it must be given to all the Men in England capeable of Marriage, and in what man­ner should that be, by fixing it like a Proclamation to some noto­rious place in the County? Yet it would be then hard to main­tain, that a Man was bound to take notice of such a thing; the Sta­tute of this King, that takes away the Court of Wards, saves and confirms the Iurisdiction of the Court of Orphans in Lon­don, which being in a general Law is within every mans Notice; for the Case of taking away a Mans Servant in a Foreign County to that he was retained in, is not like to this, for it he be detained after demand made, he which first retained him may have an Action, and so is at no loss; but here there is no remedy by undoing the Marriage, and therefore 'tis fit the rashness of it should be punished. This Custom concerning Orphans, is not confined to the Walls of London in many particulars. All the Children of a Freeman tho' he dies, and they were born out of London, shall yet be Orphans; If a Legacy be bequeathed to a City Orphan in any Foreign County, the Executor, &c. shall be compelled to give Security to the Court of Orphans for the payment of it. Et vid. Luch's Case, in Hob. 247. The interest of the City adheres to the person of the Orphan where ever he is; as a Citizen of London shall have his personal Priviledges in all places, as exemption from Toll, Prisage, (Quaere the last) (per Hale) And as well as they may have a Ravishment de gard, in what County soever the Orphan was taken, so they may punish an unlicensed Marriage. Wallers Case, 22 Jac. was the same with this which was resolved for the City. It appears by the Return that Harwood was present in Court; and Hale said, they could not award Process into a Foreign County.

3. It doth not appear by the Return, that the Mayor and Al­dermen are to have the Fine, and then it shall not be so intended. But in Eastwick and Langhams Case, (which Langham was fined for refusing the Office of a Sheriff, being a Freeman;) it was held they might set the Fine, tho' they were to have it themselves.

4. It was held the Fine was not excessive: But in regard there was no disparagement by the Marriage, it was propounded by the Court, that upon the submission of Harwood to the Court of Or­phans, that they should do well to remit the Fine.

St. Aubin versus Cox.

A Prohibition was prayed to the Court of the Compter in Woodstreet, London, to an Action of Debt there com­menced; for that the Defendant had pleaded before any Impar­lance taken, that the Cause of Action did arise at a place out of their Jurisdiction, and offered to have Sworn his Plea, and they refused to accept this Plea.

[Page 181]Vpon this Matter a Prohibition was granted; for Inferiour Courts have not Cognizance of Transitory things, which arise in places out of their Jurisdiction, as F. N. B. 45. is: But then 'tis not sufficient to surmize such Matter for a Prohibition; but a Plea to that effect must be tendred in the Inferiour Court, and that before any Imparlance taken (whereby the Jurisdiction would be admitted) and it must be upon Oath; and then if refused, a Prohibition shall be granted; or upon such Refusal, a Bill of Exceptions may be made, and Error assigned, Fitz. N.B. 21. N.

The King versus Serjeant and Annis.

THey were Indicted of Perjury committed in their Evidence, given upon an Indictment of Barretry against Nurse (the Record of which was recited in this Indictment, and therein it appeared that the Venire was made Returnable coram J. S. & J. N. Justiciariis praedictis, and at a day certain,) and Judgment given, and Error brought and assigned, that the Venire being Returnable coram Justiciariis praedictis, none but the same Justices could pro­ceed, and not those who late the next Assizes by virtue of a New Commission: And therefore the Proceedings before them were coram non Judice, and so no Perjury could be com­mitted.

Secondly, The Venire should not have been Returnable at a Day certain, but ad proximas Assisas; because 'tis uncertain when the Assizes begin, and if they should fall out to begin upon the very Day, yet it would not help the Error in the first award of the Venire. Sed non allocatur.

For the Statute of 1 & 2 E. 6. enables New Commissioners of Oyer and Terminer to proceed where the former left, before whom the Matter commenced.

And for the other Exception, it makes the Proceedings only Erronious; and while the Record stands unreversed, the Perjury may be well assigned. It was said at the same Assizes, that the Judges may Adjourn to a Day certain; but if there be a Continuance over to the next Assizes, there must be no day expressed. But Infe­riour Courts cannot make a Continuance ad proximam Curiam, but always to a Day certain.

Stanlack's Case.

UPon an Inquisition super visum Corporis before the Coroner, it was found that he died of a Meagrim at Greenwich.

Sir Edward Thurland moved for a Melius Inquirendum, pro­ducing several Affidavits, That Stanlack was Riding in the High­way, and a Coach with six Horses rushing by him, cast him from his [Page 182] Horse and killed him; and that divers offered to prove this before the Coroner, and he would not hear them: And if this Enquest should stand, the King would lose his Deodand; and alledged, that there were several Presidents of this Nature, as in one Michael Bartholomew's Case, and Toom's Case, who Hanged him­self at Hackney about 15 years since.

The Court said in those Cases it was proved, that there was Practice with the Coroner to suppress the King's Evidence, and so the Inquisition was set aside upon a Malê se gessit. If a Coroner omits to enquire, this Court as Supream Coroner throughout England, may Enquire, or may make Commissioners to Enquire, or Commissioners of Oyer and Terminer may Enquire; but then it is not Super visum corporis, and therefore may be Traversed. But Hale said, Where a Coroner hath Enquired, no Melius Inqui­rendum can go, as upon an Office found after the Death of the King's Tenant. For unless they could take some Exception to the Inquisition to quash it, the Coroner could not Enquire again; but if the Misdemeanour of the Coroner were somewhat more clearly made out, the Court said they would set the Inquisition aside, and cause a New one to be made.

Maynard's Case.

HE being produced as a Witness in an Action of Trover against Reynell Corey and others, for 12000 l which the Defendants were charged to have conveyed away, which was the Money of Mr. Luttrell, lately deceased, and belonged to Mrs. Lut­trell, now Plaintiff, as Executrix. He Swore, that the Defendants had the Money, and carried it out of the House wherein Mr. Luttrell died; and upon his Evidence principally the Jury found the Defendants Guilty.

Now the last Easter Term, which was about a year and an half since the Trial, Maynard made an Affidavit in the Kings-Bench, that Mrs. Luttrell had Arrested him amongst the rest, for the Taking away of this Money; and he being unable to put in Bail, and apprehensive of the Ruin that lying in Prison would bring upon him, he applied himself to Mrs. Luttrell, who promised him Favour, so that he would accuse Reynell and the other Defendants with the taking of the Money, and be a Witness against them; and that he was Examined before a Justice of the Peace, (one A.) who did much urge him to depose against Reynell in this Matter. And that by their Threats and Promises he was brought to give False Evidence, and that what he said in his Testimony, relating to the Defendants taking away the Money, was untrue. After this Affidavit made he was Indicted of Perjury, in what he Witnessed in the Action of Trover, and confessed the Indictment.

[Page 183]Mrs. Luttrell thinking this matter might disparage her Ver­dict, brought an Information against him of Perjury committed in his Affidavit, to which he pleaded Not Guilty; but before the Trial made an Escape, so that at the Day the Enquest was taken by Default.

The Court were at first in doubt, whether they should proceed upon the Information, the King having taken his Confession upon the first, it seemed contradictory and repugnant to prosecute him upon this: But in regard the Affidavit charged Mrs. Luttrell and others with having suborned him to per [...]ure himself, he might be tryed upon that as another distinct Perjury, if so be they should be clear of having practiced with him. And upon the tryal of this Information it did appear that he had charged them falsly, and so found Guilty.

Another Matter was moved, That the Indictment alledged the Perjury to be committed in Middlesex; whereas it appeared by the Affidavit produced, that it was taken at Justice Twisden's Cham­ber, in the Inner Temple; wherefore it ought to have been tryed in London, where the Oath was taken; and tho' the Affidavit were Filed in Court, that would not help it. But the Court agreed, if it had been in an Indictment it had been a good Objection, for there the Offence is local; but otherwise they said it had been held in an Information. And Twisden said. That if a Recognizance were taken at a Judges Chamber in London, and after Filed in Court, the Scire facias upon it shall go first into Middlesex. However the Court offered to have this Matter found Specially; but there being no Counsel for Maynard, and this Matter stirred only per amicum Curiae, it went off.

Austin's Case.

IN an Indictment for Erecting of Posts and Rails in an High­way, it was held necessary to prove, that the party Indicted did set them up, for a Continuation of them, for not suffering them to be removed, would not serve.

Hale: If there be no Special Matter to fix it upon others, the Parish where the High-way is, ought to Repair it of Common Right. (Sed Quaere, Why not the County? as in the Case of Common Bridges, 2 Inst. 701.) Vide postea.

Butcher versus Cowper.

IN an Indebitat' Assumpsit, the Defendant pleads in Abatement, that the Promise was, for carrying the Goods of the Defendant to a certain place; and if there were any such Contract, it was made with the Plaintiff and a Stranger. Vpon which it was De­murred; [Page 184] because to plead, If there were any such Contract, is not good, and more like an Affidavit to change a Venue, than Pleading, and he ought to have averred that the Stranger was alive: Besides the Defendant had taken an Imparlance, and therefore could not plead in Abatement. Wherefore it was Adjudged for the Plaintiff.

Smith versus Butterfield.

IN Trespass Quare clausum fregit & bona asportavit; the Defendant pleaded Not guilty to the breaking of the Close, and Iustifies the taking of the Goods at a time varying from that alledged in the Declaration, and concludes Quae est eadem transgressio, upon which it was Demurred; because he did not traverse the Time before and after; and it was Adjudged for the Plaintiff.

Toll versus Dawson.

IN Debt upon a Bond Conditioned to perform an Award.

The Defendant pleaded Nullum fecerunt arbitrium.

The Plaintiff Replies, and sets forth the Award, which did express the Bond of Submission to be Dated the 7th of February, whereas it was dated the 10th of February; and for that Mis­recital the Defendant Demurred.

But the Court held clearly, that it did not hurt the Award: and so if the Submission had been of divers particular matters; yet if they had medled only with the things submitted, it had been well enough.

Proctor versus Newton.

IN Debt upon a Bond, the Defendant demanded Oyer of the Condition, which was to perform Covenants in an Indenture; which recited, that the Defendant had sold to the Plaintiff a certain House; and there was a Covenant that the Plaintiff, pacifice gau­deret domum praedict' absque legali interruptione disturbantia sive impedimento of the Defendant, or any claiming from or under him. Vpon this Covenant the Plaintiff assigned the Breach thus: That J.S. habens jus & titulum virtute concessionis from J. N. ante tempus confectionis of the Bargain and Sale to him, did enter and expel him: Vpon which it was Demurred; because not shewn that J.S. had a lawful Title, and therefore not well applied to the Condition, which is so expresly penned, 2 Cro. 315.

Hale: Habens jus implies it was a lawful Eviction.

Twisden doubted; because it may be J. N. Dissessed the Defen­dant before the Bargain and Sale, and made a Lease to J. S. Et Adjornatur.

Freeman versus Boddington.

ERror of a Judgment in an Assumpsit against Baron and Feme, Hill. 21, 22. Rot. 126. in Com. Banco. The Error assigned was;

That the Feme was an Infant, and appeared by Attorney; whereas the Court ought to have admitted her per Guardianum. But if the Wife be of Age, then the Baron makes an Attorney for her and himself, and the Entry is per Attornatum of the Baron and Feme, and not the Baron only: And for this Cause the Judg­ment was Reversed.

And Hale said, that the Baron could not disavow the Guardian made by the Court for his Feme.

Lewyn versus Forth.

THe Case was, Magdalen Colledge in Oxford being seised of an House and a Mill, demised it to Lewyn for 31 years:Covenant. Lewyn Let the Mill to J.S. for five years, and after demised the House and Mill to Forth by Indenture for 31 years: Forth Cove­nanted to Repair the Premisses durante termino praedict' 31 annorum: J. S. refused to attorn; and whether Forth were bound to Repair the Mill was the Question; because it was alledged, that the Covenant was to Repair during the Term, and nothing in the Mill passed during the five years, for want of Attornment. But it was Resolved, that he was bound to Repair: For Hale said, Tho' the Lease did not commence in point of Interest, yet it did in point of Computation; and this Covenant was to Repair during the 31 years.

Zouch versus Clay.

TRin. ult. Rot. 787. In Debt upon a Bond, the Defendant pleaded,Mo. 619. That at the time that he sealed and delivered the Bond, there was a Space left, wherein afterwards the Name of J.S. was put in, who also sealed and delivered it; supposing that the adding ano­ther Obligor, bound joyntly and severally with him,1 Cro. 627. was an Alte­ration material to avoid the Bond, Mo. 547. and relyed upon Pigot's Case in the 11 Co.

But the Court held, that the Bond remained the same as to him, and he could not take advantage of this matter; and 'tis the common practice of Sheriffs, to make their Bonds for Appearance in this manner.

Sands versus Rudd.

IN Debt upon a Bond, Conditioned to give Security by a certain Day, as the Chamberlain of London shall approve.

The Defendant pleaded, that there was no Chamberlain of Lon­don at the Day. Vpon which it was Demurred, and Adjudged for the Defendant.

Parsons versus Perus.

HIll. ult. Rot. 1051. In an Ejectment, upon a Special Verdict the Case appeared to be thus: Two Women were Joynt­tenants in Fee; one of them made a Charter of Feoffment to J. S. and Livery within the View, and after (before it was Executed) married him.

And it was Objected, that this was not a good Feoffment,

None will deny, but that the Death of either party makes a Livery within View (if not executed by Entry) ineffectual. And in Mo. 85. Dyer 5. If 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, 'tis to many purposes parcel of the Freehold. So that if a man cuts Corn and carries it away presently, tho' with a Felonious intent, 'tis no Felony: Other­wise, if he let it lye after 'tis 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 'tis 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.

[Page 188]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 [...]he Dean and Chapter of St. Pauls.

Hale. 'Tis 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 [Page 189] 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 Grant recites the former Settlement; which Grant was without Considera­tion.

And, Secondly, makes a Feoffment: And it was Resolved, that the Grant should not hinder the arising of the Contingent Use; because the Grantee had Notice, and was therefore subject to the Covenant, to stand seized by the Grantor, and that the Feoffment should not destroy the Contingent Estate; because the right of Remainder for Life in the Daughter, upon which she might have entred for the Forfeiture did support it, tho' indeed the Remainder for Life in the Wife would not, for the Feoffment by the Husband tolls her Right during the Coverture, cui contradicere non potest; upon which reason is Biggot and Smiths Case adjudged, 3 Cro. Now this is stronger than the Case at Bar, because the Settlement was by way of use, but here Act executed. The Case of my Lord Cooke was adjudged by Roll in Banco Regis, and after by Glyn. It hath béen the most common way of Conveyancing, to pre­vent the disappointing Contingent Estates to make Feoffments, &c. to the use of the Husband, &c. for Life, Remainder to the use of the Feoffees for the Life of the Husband, and so on to Contingent Remainders; and the more modern ways have béen to make the first Estate but for years; but in both Cases, he which hath the first Estate, cannot destroy the Remainders. It hath been a question. Whether a right of Action would support a Contingent Estate, but never doubted, but that a right of Entry would, Vid. Archers Case, 1 Co.

Katherin Austins Case.

AN Indictment was found against her, that she vi & armis a certain part of the Kings High-way, (leading from Shorditch Church to Stoke Newington thorough Hogsdon,) postibus & repa­gulis inclusit, &c.

Vpon a Tryal at Bar the principal question was, Whether the place where the obstruction was, were an High way.

Hale said, If a way lead to a Market, and were a way for all Travellers, and did communicate with a great Road, &c. it is an High-way; but if it lead only to a Church, to a Private House or Village, or to Fields, there 'tis a Private way. But 'tis a matter of Fact, and much depends upon Common Reputation. If it be a publick way of Common right, the Parish is to repair it, unless a particular person be obliged by Prescription or Custom. Private ways are to be repaired by the Village or Hamlet, or some­times by a particular person. In the Case at Bar, it was found no High-way. Ante.

Castilian versus Platt.

ERror of Judgment in Communi Banco, in Scire facias against three Executors, the Error assigned was, that one was an Infant.

Hale. No doubt a Scire facias lies against him; and seeing this case is, that he did not appear, Iudgment was well given against him.

Symon Morse versus Willam Sluce.

MIchael' ult. Rot. 421. An Action upon the Case was brought by the Plaintiff against the Defendant; and he declared, that whereas according to the Law and Custom of England, Masters and Governours of Ships which go from London beyond Sea; and take upon them to carry Goods beyond Sea, are bound to keep safely day and night the same Goods, without loss or substraction, ita quod pro defectu of them, they may not come to any damage; and whereas the 15 of May last, the Defendant was Master of a certain Ship called the William and John, then riding at the Port of London, and the Plaintiff had caused to be laden on Board her three Trunks, and therein 400 pair of Silk Stockings, and 174 pound of Silk, by him to be transported for a reasonable reward of Fraight to be paid, and he then and there did receive them, and ought to have transported them, &c. but he did so negligently keep them, that in default of sufficient care and custody of him and his Servants, 17 May, the same were totally lost out of the said Ship.

Vpon Not guilty pleaded, a Special Verdict was found. (viz.) That the Ship lay in the River of Thames, in the Port of London in the Parish of Stepney, in the County of Middlesex, prout, &c.

That the Goods were delivered by the Plaintiff on Board the Ship, prout, &c. to be transported to Cadiz in Spain.

That the Goods being on Board, there were a sufficient number of Men for to look after and attend her left in her.

That in the night came 11 persons on pretence of pressing of Sea­men for the Kings service, and by force seized on these Men (which were 4 or 5, found to be sufficient as before) and took the Goods.

That the Master was to have Wages from the Owners, and the Mariners from the Master,

The She was of the Burden of 150 Tunn, &c.

So the question was upon a Tryal at Bar, whether the Master were chargeable upon this matter.

It was insisted on for the Plaintiff, that he who took Goods to carry them for profit, ought to keep them at his peril.

[Page 191]To which it was answered, That there was no negligence ap­peared in the Master. By the Civil Law, if Goods were taken by Pirates, the Master shall not answer for them; and this is not the Case of a Carrier, for tho' here the Goods are received at Land, yet they are to be transported, and being one intire Contract, they shall not be under one Law in the Port and another at Sea; the Master is not liable in case of Fire or Sinking the Ship; Owen. 57. every one knows the Ship is liable to inevitable accidents, and there is no Case of this nature in experience. And Serjeant Maynard ad­ded, that this differed from the case of a Carrier, for that he is paid by the Owner of the Goods; but here the Master is Servant to the Owner of the Ship, and he pays him, and not the Mer­chant.

The Court inclined strongly for the Defendant, there being not the least negligence in him; but it was appointed to be Argued, but since I've heard it was compounded. It was agreed on all hands, that the Master should have answered, in case there had been any default in him, or his Mariners.

Anonymus.

UPon a motion for Restitution after the Reversal of an Out­lawry, Hale said that he must plead the Reversal to the seisure in Scaccario.

Puckle versus Moor.

MIchael. ult. Rot. 461. A Promise was made seven years since, to pay Money within three Months after.

The Defendant pleaded Non Assumpsit infra sex annos ante exhi­bitionem Bille, whereas it should have béen causa Actonis non ac­crevit infra sex annos; tho' in this case it appears within the Decla­ration, that the time of payment was not within six years before; yet because the Defendant had not pleaded it, he cannot have ad­vantage of it.

Goff versus Loyd.

MIchael. ult. Rot. 268. Trespass quare domum fregit, and took away so many Nails, &c.

The Defendant pleads Specially, and sets forth the two Acts for Hearth-Money, 14 Car. nunc. cap. 10. and 16 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.

[Page 192] Moreton. I think a Smiths Forge ought to pay; 'tis 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; 'tis 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 'tis found almost in every Village; therefore 'twas 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 'tis very probable that they are Firehearths, and not excepted; but it appears plainly upon the Record, that 'tis a Firehearth, and by the general Demurrer 'tis 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.

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 [Page 194] 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 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; [Page 195] 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 [Page 196] 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, 'tis 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 'tis 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 [Page 197] 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 appearing that B. had made this Discovery to him, of which he was now about to give Evidencee, before such time as he had Retained him, the Court were of Opinion that he might be Sworn. Other­wise, if he had been retained his Solicitor before: The same Law of an Attorney or Counsel.

Sir Samuel Jones versus the Countess of Manchester.

IN an Ejectment upon a Trial at the Bar, the Evidences which (as the Plaintiff pretended) would have made out his Title, and would have avoided the Settlement in Joynture, which the Countess of Manchester claimed, were locked up in a Box, which was in the Custody of a Stranger, who before the Trial delivered the Key to the Earl of Bedford, Brother to the Countess of Man­chester, and Trustee for her; who being present in Court, and requested to deliver the Key, that the Box might be opened, which was brought into Court: He said, (being a Trustee in the behalf of his Sister) He conceived, he was not obliged to shew forth any Writings that might impeach her Estate; and if he should, it would be a breach of the Trust reposed in him, which he held sacred and inviolable.

The Court told him, That they could not compel him to deliver the Key: But Hales said, It were more advisable for him to do it. For he held, tho' it is against the Duty of a Counsellor or Soli­citor, &c. to discover the Evidence, which he which retains him acquaints him with; yet a Trustee may and ought to produce Writings, &c. But they could not Rule him to do it here; and the Earl declaring his Resolution not to do it, the Plaintiffs Counsel desired leave of the Court to break open the Box.

[Page 198]The Court said, that they would make no Order in it, nor would determine how far the Title to the Writings drew in the property of the Box; or whether the delivering the Key to the E. did not amount to a Pledge of the Box.

Serjeant Maynard said, It was the course of the Chancery, when a Bill was Exhibited against a Joyntress, to discover Writings, not to compel her to do it till such time as the Plaintiff agrees to confirm her Joynture. And he knew a Bill of Discovery brought against a Purchasor upon a valuable Consideration; and the Court would not compel him to Answer, tho' it was proved there was a Deed and a real Settlement.

Vpon opening the Evidence in the Case at Bar, these Points were stirred and Resolved by the Court:

That where a man makes a Feoffment, &c. to Uses, with power of Revocation, when he hath executed that Power, he cannot limit New Uses; but if it had been with a Power to revoke and limit New, then he might revoke and limit New, with a power of Revo­cation annexed to those New; which if he doth afterwards revoke, he may again limit New Uses according to the first Power, and so in infinitum: But always the New Uses must correspond to those Circumstances, &c. which the first Power appoints, for that is the Foundation, 2 Rolls 262. Beckett's Case.

The Plaintiff being at a loss for his Writings, was Nonsuit.

Seaman versus Dee.

AN Indebitat' Assumpsit, as Executor of S. was brought against the Defendant by the Plaintiff, as an Attorney of this Court by Original.

The Defendant pleads four Judgments against him; One in an Action of Debt, (upon which the Question was) for Money borrowed by the Testator upon Interest, which Debt with the Interest, at the time of the Action brought, amounted to such a Sum, which was recovered against him: And pleads three Judgments besides, ultra quae he had not to satisfie.

The Plaintiff Demurs, and after being divers times spoken to, the Court Resolved for the Plaintiff.

First, For that Hale said, No Action of Debt lies for the Interest of Money, tho' he which borrows it Promises to pay after the rate of 6 l per Cent. for it; but it is to be recovered by Assumpsit in Damages. So where by Deed the party Covenants or Binds himself to pay the Principal with Interest, the Interest is not to be included with the Principal in an Action of Debt, but shall be turned into Damages, which the Jury is to measure to what the Interest amounts to, which is allowed to be done; tho' indeed the Statutes (which permit the taking of Interest) say, [Page 199] That Usury is damned, and forbidden by the Law of God. And tho' it was Objected, That the Judgment is but Erroneous, and the Executor liable while Reversed; and it cannot be said, it was the Executor's fault to suffer it: For an Executor may plead a Judg­ment against him in Debt upon a simple Contract; tho' it could not have been recovered if he had pleaded to the Action, or without his voluntary Consent.

To that Hale said, That Debt upon a Simple Contract lies against an Executor, if he please; nay, it hath been Adjudged, that an Executor may retain for a Debt but to him from the Testator, upon a Simple Contract: But in this Case no Action lies by the Law, nor any admission of the Executor can make it good.

Secondly, It appears, that part of the Interest accrued after the Testator's death, which is the Executors proper Debt, being his own default to suffer the Interest to run on: Then the Action being brought, both for that which is due in the Testator's time, and for that which grew due since, is manifestly Erroneous; and there is nothing in the Defendants Plea to take away the Intendment, that he had Assets to satisfie at the Testator's death.

To the Objection, That the Plaintiff once had abated his Writ; for that he declares by Priviledge, as an Attorney of the Court.

It was Answered, That the alledging of his Profession and Priviledge in the Declaration, was Surplusage and an imperti­nent Flourish, and that being rejected the Declaration is sufficient upon the Writ; and an Attorney is at election to Sue, either by Original, or by Priviledge. Wherefore the Rule was, that the Plaintiff should have his Judgment.

The Lady Anne Fry's Case.

IN an Ejectment by Williams, Lessee of George Porter Esquire, against the Lady Anne Fry. The Case appeared to be this, upon a Special Verdict.

That Mountjoy, Earl of Newport was seised of an House called Newport-House, in the County of Middlesex, and had three Sons, who are yet living, and had two Daughters. Isabel mar­ried to the Earl of Banbury, by whom she had Issue Anne the Defendant; and Anne married to Porter, by whom she had Issue George Porter Lessor of the Plaintiff, and made his Will in this manner:

I give and bequeath to my Dear Wife, the Lady Anne, Countess of Newport, all that my House called Newport House, and all other my Lands, &c. in the County of Middlesex, for her Life; and after her Death I give and bequeath the Premisses to my Grandchild [Page 200] Anne Knolles (viz. the Defendant) and the Heirs of her Body: Provided always, and upon Condition, that she Marries with the Consent of my said Wife, and the Earl of Warwick, and the Earl of Manchester, or the major part of them: And in case she Marries without such Consent, or happen to dye without Issue, then I give and bequeath it to George Porter, (viz. the Lessor of the Plain­tiff.)

The Earl of Newport dies, and the Lady Anne Knolles being of the Age of 14 years, marries with Fry without the Consent of her Grandmother, or either of the Earls; and it was found, that she had no Notice of the Will until after the Marriage, and that George Porter at that time was of the Age of 8 years; and that after the Death of the Countess she Entred, and George Porter Entred upon her, and made the Lease to the Plain­tiff.

This Case having been twice Argued at the Bar, (viz.) in Michaelmas Term, by Sir William Jones for the Plaintiff, and Winnington for the Defendant: And in Hillary Term last, by Finch, Attorney General, for the Plaintiff; and Sir Francis North, Solicitor General, for the Defendant.

It was this Term Resolved by the Court, (viz.) Hale, Twisden and Rainsford, (Moreton being absent) for the Plaintiff, upon these Reasons.

Rainsford. Here have been three Questions made.

First, Whether the words in the Will, whereby the marriage of the Defendant is restrained, make a Condition or Limitation: If a Condition, then none but the Heir can Enter for the Breach. But 'tis clear, that they must be taken as a Limitation, to support the intent of the Devisor, and to let in the Remainder which he limits over, 1 Rolls 411.

Secondly, Whether the Infancy of the Defendant shall excuse her in this Breach, and clearly it cannot: For a Condition in Deed obliges Infants as much as others, 8 Co. 42. Whittingham's Case, the difference between Conditions in Fact and Conditions in Law. Especially in this Case, the nature of the Condition shewing it to be therefore imposed upon her, because she was an In­fant.

Thirdly, (and the main Point of the Case,) Whether the want of Notice shall save the Forfeiture of the Estate? As to that, Let the Rules of Law concerning Notice be considered.

First, I take a difference where the Devisee, who is to perform the Condition, is Heir at Law; and where a Stranger. The Heir must have Notice, because he having a Title by Discent, need not take notice of any Will, unless it be signified to him. And so is Fraunce's Case, 8 Co. Where the Heir was Devisee for 60 years, upon Condition not to disturb the Executor in removing the [Page 201] Goods; and Resolved that he should not lose his Estate upon a Disturbance, before he had Notice of the Will. But where the Devisee is not Heir, (as in this Case) he must inform himself of the Estate devised to him, and upon what terms.

Another Rule is, When one of the Parties is more privy than the other, Notice must be given; but where the Privity is equal, Notice must be taken by the party concerned. A Bargainee shall not Enter for a Condition broken, before Notice, for the Bargain and Sale lies in his Cognizance, and not the Lessees. So if a Lease be made to commence after the end of the former; if the first be surrendred, the Lessor shall not Enter for a Condition broken for Non payment of Rent, until Notice given of the Surrender, 3 Leon. 95. And therefore there shall be no Lapse to the Ordinary upon a Resignation, without Notice. If a man makes a Feoffment, upon Condition to Enter upon payment of such a Sum at a place certain, he must give Notice to the Feoffee when he will tender the Money, Co. Lir. 211. a. Dyer 354. And upon this Reason is Molineux's Case, 2 Cro. 144. where a Devise was, that his Heir should pay such Rents, and if he made default, then his Executors should have the Lands, paying the said Rents; and if they failed of Payment, then he devised the Land to his younger Children, to whom the Rents were to be paid. It was Resolved, Non-payment by the Executors should be no Breach, until they had Notice that the Heir had failed, which was a thing that the younger Children must be privy to. But in 22 E. 4. 27, 28. Te­nant for Life Lets for years, and dies; the Lessee must remove in convenient time, to be reckoned from the death of the Tenant, whether he had Notice of it or no: For he in Reversion is presumed to be no more privy to it than himself. So Gymlett and Sands's Case. 3 Cro. 391. and 1 Rolls 856. where Baron and Feme were Tenants for Life, Remainder to the Son in tail, Remainder to the right Heirs of the Baron; the Baron makes a Feoffment with Warranty and dies, then the Feme and Son joyn in a Feoffment; this is a Forfei­ture of the Estate of F. tho' she had no Notice of the Feoffment or Warranty, whereby the Right of the Son was bound. So Spring and Caesar's Case. 1 Rolls 469. A. and B. joyn in a Fine, to the use of A. in Fee, if B. doth not pay 10 l to A. before Michaelmas; and if he doth, then to the use of A. for Life, Remainder to B. B. dies before Michaelmas, the Heir of B. is bound to pay the 10 l without any Notice given by A. The Reason given (which comes home to our Case) is, For that none is bound to give Notice, and then it must be taken; tho' indeed a second be added, For that B. (from whom his Heir derives) had Notice. The Mayor and Comminalty of London aganst Atford, 1 Cro. where a Devise was to six Persons, to pay certain Sums for the Maintenance of an Almshouse, &c. and if through Obliviousness, or other [Page 202] Cause, the Trusts were not performed, then to J. S. upon the same Condition; and if he failed by two Months, then to the Mayor and Comminalty of London upon the same Trusts. The six did not perform the Trusts, J.S. enters, J. N. enters upon him, and a Fine with Proclamations was levied, and Five years passed; and the better Opinion was, that the Mayor and Comminalty of Lon­don were bound to pay the Money appointed by the Will, altho' they had no Notice that the six persons or J. S. had failed; tho' indeed the Case is adjudged against them, as being barred by the Fine and Non-claim. Sir Andrew Corbet's Case, 4 Co. is very strong to this purpose; where a Devise is to J. S. until he shall or may raise such a Sum out of the Profits of the Land: If a Stranger Enters after the death of the Devisor, tho' the Devisee had no Notice of the Will, yet the time shall run on, as much as if he had the Land in his own possession.

These Rules being applied to the present Case, it will appear no Notice is to be given:

First, The Defendant is as privy to the Will as any one else, (viz.) as George Porter, who is found also to be an Infant. It is not found whether there were any Executors, if it had, they were not concerned to give Notice, nor did it import the Heir: For he could have neither benefit or loss by the Condition.

The Two Cases which have been chiefly relyed upon for the Defendant, were, first France's Case, which differs, because it was in case of an Heir. Secondly, the Case of Sanders and Carwell, 8 Jac. in a private Report of Sir Geoffrey Palmer, the Attorney Ge­neral, in which there is no clear account of the Case, and we cannot find the Roll: It was a Devise to his Wife for life, Remainder to his Daughter in tail, upon Condition to pay Money; and it was held that the Non-payment would be no breach unless she had Notice.

First, It was an Opinion only upon Evidence, and Lea and Chamberlain only in Court.

Secondly, For ought appears the Daughter might be Heir, and then 'tis good Law.

Thirdly, It appears there was a foul Concealment of the Will for Four years time; within which time (for ought appears) the Condition was to have been performed.

Twisden was of the same Opinion; but I omit his Argument, because I could not hear him perfectly.

Hale was of the same Opinion. As to the first Point, I shall discharge the Case of it, as not fit to be called in question: For without peradventure tho' the word Condition be used, yet limiting a Remainder over, makes it a Limitation; for so 'tis plain the Testator meant, and 'tis as much as if he had said, And if she Marries, &c. then to remain, without the word Condition. [Page 203] And this hath received as many Resolutions as ever any Point did, (viz.) Wiseman and Baldwin's Case, 2 Leon. 51. Owen 412. 1 Leon. 383. 18 Eliz. 1 Rolls 412. Hains worth and Pretty, 3 Cro 833. and 2 Cro. Pells and Browne's Case, with a great many more; and nothing but the Opinion in Mary Portington's Case, 10 Co. against it.

When Fynch, Attorney General, Argued this Case, he observed that Coke himself was of another Opinion in the 3d Report, in Wellock and Hammond's Case, cited in Boraston's Case: For tho' there 'tis the word Paying only, which is adjudged a Limitation; yet Coke saith, the Quaere in Dyer 317. is upon that well Resolved, and the Case in Dyer is upon the word Condition expresly.

Then to proceed to the other Matters. Here is an Estate Tail devised to the Defendant, subject to Two Limitations, the one of Law, (viz.) Dying without Issue; the other express and in Fact, (viz) Marrying without the consent, &c. and both are coupled together, so that whenever she Marries without Consent, &c. her Estate determines and is transferred to him in Remainder, without either Entry or Claim. 'Tis all one as if the Estate had been devised to her for Life, and if she Marries, then to remain, which had been but an Estate quamdiu sola vixerit: And it is to be observed, that if her Marriage here be no breach of the Conditional Limitation (for so 'tis properly called) because she had no Notice, then it can never be broken: So that the Question must be, Whe­ther such a Marriage shall discharge the Estate of it, and make it become absolute.

'Tis true, where the Condition requires such an Act to be done, as may be done after Notice, in hath been questioned, whether the Law shall not protract the Time limited for performance, until Notice be had, 1 Cro. Alford's Case, which was a Condition for Payment of Money: But this is a thing of that nature, that being done, no subsequent Notice can ever retrieve.

Then 'tis to Enquire, How far the want of Notice will excuse? It must be considered, that 'tis a Will made by a person now dead, who can give no Notice, neither can any come to the knowledge of it without Enquiry, and one hath the same means to obtain it with another; and the person who would take advan­tage of it, must make the best Enquiry he can. If a Devise were made to the Defendant, it was her Concern to Enquire upon what terms; until then how can it be ascertained, whether she will take it? And so it was Porter's Business to Enquire; no difference between them in this respect. So that upon these Five Ac­counts, it will appear, that no Notice is requisite to be given in this Case:

[Page 204] First, Because the Testator hath not appointed any Notice to be given, than he which was the Disposer might give upon what terms he pleased; and this Matter of Notice shall not be added, unless it were in a Case wherein the Law would very strongly require it.

Secondly, Because there is no Person who can reasonably be engaged to give Notice (viz.) not the Heir, for he is Disinherited; not the Executors, for they are not concerned in the Freehold; nor the Trustees, for they have but their labour for their pains; nor Porter, for he is no more bound to give than she to take No­tice?

Thirdly, Because each Party have the same means of Inform­ing themselves of the Will, (i.e.) by Enquiry.

Fourthly, It more imported the Defendant to know it, as relating to her own Interest; the Will which gives the Estate, gives it upon this Conditional Limitation. Corbet's Case, 4 Co. comes very close; where, if the Devisee stays while the time wherein the Money might be raised is elapsed, he shall never raise it after. Suppose a man dies possessed of a Term upon which a great Rent is reserved; shall the Executor, after that he hath proved the Will throw up the Term, as pretending not to have known of it? An Estate is devised to one durante Viduitate; shall she Marry, and because she had do Notice of the Will, hold the Estate abso­lutely for her Life? There is the same Reason in this Case; for this Proviso is a part of the Limitation of the Estate it self. No man is presumed to be ignorant of his own Interest; and as he must take Notice to acquire, so of the manner of the Estate he gains. He that gave it thus, was not obliged to do so much.

Fifthly, It was not impossible for the Defendant to have made Enquiry, and she must not take advantage of her Latches. A Bond with Condition to pay 50 l when the Obligee shall marry the Obligor's Kinswoman; in Debt upon this, it was Resolved, that the Obligee was not bound to give Notice of the Marriage, tho' it lay in his own privity; because the Obligor might have known it by other means, Hill. 1650. Between Try and . . . . Rot. 1081. B. R. It was proper for the Defendant to have Enquired, whether her Grandfather gave her any thing: And so it was for him that should marry her.Ante. Harwood's Case Adjudged here (Hill. ult.) was upon this Reason: He married a City Orphan in Kent, and was fined by the Court of Orphans, because he had not first applied himself to them for their Licence, &c. according to the Custom of the City: And the Fine was Resolved here to be well imposed, tho' he had no Notice that she whom he married was an Orphan; because it was his business to enquire of the Condition of her whom he will make his Wife.

[Page 205]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. 'Tis 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 'tis 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 'tis 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 [Page 207] 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 Sister, the Dutchess of Cleaveland, to whose Son this Daughter being about 8 years old was contra­cted, pretending that Sir Henry VVood by word revoked this dis­position of the Guardianship. Sued in the Prerogative Court, to have this nuncupative Codicil proved; and the Court granted a Prohibition, for they are not to prove a VVill concerning the Guar­dianship of a Child, which is a thing conusable here, and to be judged whether it be devised pursuant to the Statute. And Hale said, that they may prove a VVill which contains Goods and Lands, tho' formerly a Prohibition used to go quoad the Lands. Vid. 1 Cro. Netter and Percivalls Case.

Prior versus . . . .

ERror was brought of a Judgment in this Court into the Exche­quer Chamber, and Error in fact was then assigned; and the Court being there of Opinion, that Error in fact could not be as­signed there, they affirmed the Judgment; upon which the Record with the Affirmation was remitted hither, and a Writ of Error was [Page 208] brought here, coram vobis residen' (as is usual for Error in fact.) It was pray'd, that upon putting in not Bail, this new Writ of Error might be a Supersedeas to the Execution. But the Court held, that this Writ was not to be allowed in this case, for the Judgment given in this Court, being affirmed in the Exchequer Chamber, transit in rem judicatam there, and a Writ of Error cannot be brought here upon a Judgment there; and 'tis always the course in Writs of Error to recite all the proceedings that have been in the matter; as if a Judgment be removed hither, by Error out of the Common Pleas, and here affirmed, and then brought into Parliament, the last Writ must recite both the Judgment in Communi Banco, and the Affirmation here. And whereas this Writ goes by the Judgment into the Exchequer Chamber, and mentions only the Judgment here, it must therefore be quashed: And it is the course, if a Writ of Error be brought here, upon Error in fact of a Judgment here, that the Writ should be allowed in Court. And the Court said, they would allow none in this Case.

Throwers Case.

HE was indicted at the Sessions of the Peace at Ipswich for Stopping communem viam pedestrem ad Ecclesiam de Wit­by. It was removed hither by Certiorari, and the Court were moved to quash it, for it was objected, That an Indictent would not lye for a Nusans in a Church-path; but Suit might be in the Ecclesiastical Court. Besides the Damage is private, and con­cerns only the Parishioners. Where there is a foot way to a Com­mon, every Commoner may bring his Action if it be stoped, but in such case there can be no Indictment.

Hale said, if this were alledged to be communis via pedestris ad Ecclesiam pro parochianis, the Indictment would not be good, for then the Nusans would extend no further than the Parishioners, for which they have their particular Suits; but for ought appears this is a common foot way, and the Church is only the Terminus ad quem, and it may lead further; the Church being expressed only to ascertain it, and 'tis laid ad commune nocumentum; wherefore the Rule was, that he should Plead to it.

The Lady Prettymans Case.

A Judgment was had in a Scire facias brought against her up­on a former Judgment, upon two Nihils returned. And the Court was moved to set it aside, for that it was alledged; that before the Scire facias brought she was married to Sir John Pretty­man, and that it was brought against her as sole, by contrivance between the Plaintiff and her Husband to oppress her, and lay her [Page 209] up in Prison; and it was shewn that the Plaintiff knew of the Marriage, for he (being an Attorney) had prosecuted an other Action before the return of the Scire facias against her and her Husband, and that she could not help her self by Error, or Audita Querela, because her Husband would Release.

The Court said, they might set aside the Judgment, for the mis­demeanour of the Plaintiff; but because they were informed, that this Marriage was under debate in the Ecclesiastical Court, and near to a Sentence, they suspended making any Rule in this, while that was determined.

Twisden said, he had a Case from my Lord Keeling, where a Feme Covert Infant levied a Fine, and her Friends got a VVrit of Error in her Husbands and her name, that the Court would not suffer the Husband to Release. But Hale said, he could not see how that could be avoided; but he had known, that in such case the Court would not permit the Husband to disavow the Guardian, which they admitted for the VVife.

Hows Case.

HE was indicted of an Assault, Battery and VVounding of Thomas Masters Esquire, and Found Guilty at the Assizes in Gloucestershire. Now the Attorney General moved the Court to set a Fine, and such an one as might be exemplary, according to the demerit of the Fact; for he shewed, that a great part of the Gentry of Gloucester, amongst which were How and Masters, being as­sembled at Circencester, about the Election of a Burgess for that Town; How, without any provocation, struck Masters on the Cheek with the end of his Cane, which had an Iron pike at it; and that if Masters had not governed himself with much moderation and prudence, it had in all probability engaged the whole Assembly in a dangerous quarrel, they being both Men of great Estates and Quality in the Country. And the Attorney said, there was nothing more necessary than that somewhat of a limited Starchamber should be exercised in this Court, for the due punishment of such enor­mous Crimes as these.

Hale said, that they were much discouraged from setting Fines, for the new Act binds them to estreat them into the Exchequer; and then it was well known whether they went, (meaning to such as farmed them from the King by Patent.) The Attorney replied, that the legality of such Patents was to be questioned; and that one which was granted to the Earl of Berkshire, 7 Co. Penal Statutes. was now like to be resumed, and it was fit it should, seeing it was like to prove an obstruction to the publick Iustice.

[Page 210]Then it was doubted, whether the Fine could be set, How not being present; but held it might, but the Course is not to hear any thing moved in mitigation of the Fine, unless the Party be pre­sent, and he was fined 500 Marks.

Ward versus Forth.

IN Debt upon a Bond, the Defendant pleads, that he delivered the Deed as an Escrow to J. S. &c. & hoc paratus est verifi­care.

To this it was demurred. For that he ought to have conclu­ded, & issint ninet son fait, for this matter amounts to a Special Non est factum; and the Plaintiff cannot reply, that he delivered it as his Deed absque hoc, that he delivered it as an Escrow, and so said the Court.

Shermans Case.

BY Certiorari, an Order for the keeping of a Bastard Child by the Justices of the Peace, in persuance of the Statute of 18 Eliz. was removed into this Court, which was excepted to.

First, For that they had appointed the Father to allow 4 s to the Midwife; whereas it did not appear, that the Parish had pro­cured her, or that they were chargeable with it.

Secondly, For that they ordered 7 s a week, to be allowed for the Nursing Cloaths, &c. of the Child, until it should be able to get its living by working; which was said to be excessive in the Sum, and uncertain for the time, for it should have béen for so long time as it shall be chargeable to the Parish.

Hale said, that they could make no allowance to the Midwife, unless in discharge of the Parish.

Twisden said, that they could not order the 7 s a week to be paid, until it should be able to get its living, for perhaps the Fa­ther would take it away and maintain it himself, which he may do if he please; but that the Order might be quashed without more delay, and the matter remanded to further Examination. Sher­man consented to pay all the Arrears of the 7 s a week, and the Costs that had béen expended in Maintenance of this Order, or what more should be laid out, in case he should be again found the reputed Father of the Child, for he said it was imposed upon him by Combination, whereupon it was quashed.

Sir Ralph Bovy's Case.

AN Action was brought upon an Escape, for that he being Sheriff of Surry, voluntarily suffred J. S. whom he had in Execution, to escape.

He pleads, that be made fresh pursuit and took him again, and doth not Traverse the voluntary Escape, to which it was demurred. Et Adjornatur.

Anonymus.

A Scire facias against the Conusee of a Statute, who had ex­tended, supposing that he was satisfied. He pleads, that before the Scire facias brought he had assigned over all his interest, and prays Iudgment of the Writ.

Hale said, that the VVrit was good, seeing he was a Party to the Record; the Plaintiff need not take notice of the Assignee unless he please, and if there be part of the Debt unsatisfied, that is to be tendred to the Conuzee.

In a VVrit of Disceit, to reverse a Fine of Land in antient Demesne; after Assignment the Conuzee shall be made party. So in a VVrit of Error, tho the Terretenant shall not be turned out of possession without a Scire facias.

Dionise versus Curtis.

TRover de duabus Centenis Plumbi urae, Anglicè two hundred weight of Lead Ore.

It was objected, that Centena signifies an hundred in a Coun­ty, and 'tis uncertain here of what it should be understood; but the Court said it was good with the Anglicè, and to be un­derstood by the subject matter. Trover de duobus ponderibus casei, Anglicè, two weigh of Cheese, hath been held good. So de duobus oneribus Cupri, Anglicè, two Horse loads of Copper.

Evans, &c.

IN an Action upon the Case, whereas he pretended Title to cer­tain Goods in the Custody of one Susan Pricket, and claim­ed them to be his own, intending to remove them; the Defen­dant in Consideration, that he would suffer them to continue there, assumed to see them forth coming, and that they should not be imbezelled, but safely kept to the use of the Plaintiff, and shews that afterwards the Goods were Eloigned, &c.

[Page 212]Vpon Non Assumpsit and Verdict for the Plaintiff, it was mo­ved to stay Judgment; that it doth not appear, that the property of these Goods was in the Plaintiff, for it is alledged only, that he pretended to them, and claimed them to be his own: Sed non Allocatur.

For the Declaration is full enough, at least must be intended he proved they were his own, or the Jury would not have found for him.

Anonymus.

IN Debt upon a Record in an inferiour Court, upon Nul Tiel Record pleaded, they shall certifie only tenorem Recordi, and grant Execution afterwards.

Hale said, that he had seen a Certiorari to certifie tenorem Recordi, upon a Tryal at Bar concerning the Toll of Uxbridge, the Town pretending to be incorporated, and to have a right to the Toll; and it was resolved, that no Bugh holder could be a Witness for the Town.

Mekins versus Minshaw.

A Prohibition was prayed to the Court of the Chamberlain of Chester, where an English Bill was preferred, setting forth, that J. S. being Indebted to the Plaintiff, the Defen­dant upon good Consideration promised. That if J. S. did not pay it▪ he would; and that he wanted such precise Proof of the Pro­mise as the Law required. Wherefore he prayed to be relieved by the Equity of the Court.

The Defendant confessed the Promise in his Answer, and alledged further, That he had paid the Money. And a Prohibition was granted; for the Plaintiff had now obtained the end of his Suit, and might have remedy at Law upon the Evidence of the Defendants Answer.

Anonymus.

AN Action was brought for these words: The Defendant said of the Plaintiff, That he had picked his Pocket against his Will; and at the same time de ulteriori malitia said, He was a Pick-pocket.

The Defendant Iustified, but in such manner as it was Ruled against him.

Then he moved to stay Judgment upon the Insufficiency of the Declaration: And the Court were of Opinion that the Words were not Actionable, as carrying with them no necessary impli­cation of Felony, and might mean only Trespass. And Hale said, He would not improve Actions for Words further than they are.

Fortescue versus Holt.

A Scire facias was brought upon a Judgment of 1000 l as Administrator of J. S.

The Defendant pleaded, That before the Administration com­mitted to the Plaintiff, (viz.) such a day, &c. Administration was granted to J.N. who is still alive at D. And demanded Judgment of the Writ.

The Plaintiff Replies, J. N. died, &c. & de hoc ponit se super Patriam. And to that the Defendant Demurs.

For that he ought to have Traversed absque hoc, that he was alive: For tho' the Matter contradicts, yet an apt Issue is not formed without an Affirmative and a Negative; and so said the Court. And also that the Defendants Plea was bad, being Con­cluded in Abatement; whereas it goes in Bar, which was so palpable, as made it evident to be used only for delay. Which Hale observing, he did exceedingly blame the bad Practice that is amongst Counsel in advising such Pleas, and said it was within the Penalty of Westm. 1. Serjeants Counters, &c. and said, Tho' Counsel were obliged to be faithful to their Clients; yet not to manage their Causes in such a manner, as Justice should be delayed, or Truth suppressed; to promote which was as much the Duty of their Calling, as it was the Office of the Judges, tho' not in so Emi­nent a Degree.

In this Case it was doubted, Whether Judgment final should be given, or a Respondeas Ouster: But because the Plaintiff said, he would be content with the latter, that was not Resolved.

Anonymus.

IN Trespass Quare clausum fregit, 'tis a Plea in Abatement to say, That the Plaintiff is Tenant in Common with another: But cannot be given in Evidence upon Not Guilty, as it may where one Tenant in Common brings Trespass against the other.

Peters versus Opie.

THe Case was moved again, and Hale held clearly, that the Promise being pro labore (tho' there was also a Counter-Promise) did carry in it a Condition precedent, (viz.) That the work should be done first. And he said, that in Cases tried before him, where the Declaration was upon Reciprocal Promises, if it appeared upon the Evidence, that the Intention was, that the Plaintiffs part was to be performed before the Defendants; he directed against the Plaintiff, and would not have the Defendant driven to his Cross Action.

Twisden strongly to the contrary. Pro labore (says he) is no more than would have been implied if those Words had been omitted; then 'tis within the Case of Reciprocal Promises. The Case cited in Ughtred's Case, 7 Co. A. Covenants to B. to serve him in the Wars, B. Covenants to pay him so much for it; an Action lies for the Money without averment of the Service done, because of the mutual Remedy.

Hale was now of Opinion, that the Plaintiffs saying, parat' fuit & obtulit to do the Work; tho' he did not say, and the other refused, yet it was a sufficeint Averment after a Verdict. The Case of Vivian and Shipping, 3 Cro. 384. in an Assumpsit upon a Promise to perform an Award, the Plaintiff said licet He had performed all on his part, &c. which tho' no good Averment in Form, yet held it aided by the Verdict.

Wherefore tho' they could not agree in the other matter, yet Judgment was given for the Plaintiff. Ante.

King versus Melling.

IN an Ejectment, the Case was thus found in a Special Ver­dict.

John Melling was seised in Fee, and had Issue Barnard and John, and by his Will in Writing devised to Barnard for and during his Natural life, and after his decease to such Issue as he should have of the Body of his second Wife, (his first then being alive); and if no such Issue hapned, then to John Melling, provided that Barnard might make a Joynture to his Wife, which [Page 215] she should enjoy for her Life. The Devisor dies, Barnard suffers a Recovery to the use of himself in Fee, and after Covenanted to stand seised to the use of his Wife for her Joynture for Life, and died without Issue by any second Wife. The Question was, Whether the Wife had a good Estate, or that J. Melling in Remainder had the Right?

It was Argued for John Melling; First, That Barnard Melling had only an Estate for Life by this Devise. Indeed, if it had been to him and his Issue which he should have by the second Wife, that would have been an Entail; but here 'tis expresly given to him for his Life. The Case of Wiat Wield, 8 Co. 78. b. is full to this: A Devise to a man and his Children is an Estate Tail, if he hath none at the time: But if the Devise were to a man for his Life, and after his Decease to his Children; there, whe­ther he had Children or no at the time, they take by way of Remainder either contingent or vested: So Archer's Case, 1 Co. 1 Rolls 837. A Devise to his Son for Life, the Remainder to the Sons of his Body lawfully begotten; the Son takes only an Estate for Life, because so expresly limited. Then the Recovery destroys this Contingent Remainder, and so also the power of appointing a Joynture to his Wife: For 'tis not a bare Collateral Power, but annexed to his Estate, and therefore extinguishes in the Conveyance of it.

But admitting it were still in him, yet he did not well execute it, which should have been in such manner as it might have taken effect by the Will, and not to arise upon a Covenant to stand seised.

On the other side it was Argued, that it was an Estate Tail in Barnard Melling, and no Remainder contingent to the Issue: For there a Remainder is said to be contingent where the first Estate may fail before 'tis ascertained whether the Contingent will happen or no; here if it be an Entail, Barnard Melling hath it for his Life, and the Issue had nothing until after his decease. So 'tis but an Expressio eorum quae tacite insunt.

Again, The Power remains notwithstanding the Recovery; for 'tis collateral to the Estate. If Executors have Authority to make a Feoffment for the payment of the Testator's Debts, if they should first make a Feoffment to another purpose, this would not determine their Power, but they might afterwards execute it in performance of the Will, 1 Co. in Albany's Case.

Hale. It seems very strong upon Weild's Case, that Barnard Melling hath but an Estate for Life, (if it were devised to him,) and after his decease to his Issue, I should think that to be an Estate Tail; but here the express Words are for his Life. A Devise to one for his Life, and after his decease to his Heir, that hath been held a Fee; for Heir is nomen Collectivum. But Archer's Case, [Page 216] 1 Co. is a Devise to A. for his Life, and after to his Heir, and the Heirs of that Heir; there because the words of limitation were put to the Heir, therefore Heirs was taken to be but designatio personae, and Resolved he should take by Purchase. Vid. Anderson 110. Construction must be according to the express words of the Will. A Devise to Two, equally to be divided between them, and to the Survivor of them, makes a Joyntenancy upon the express import of the last Words.

Twisden. A Devise to one for Life in perpetuity, makes but an Estate for Life only, 15 H. 7.

Hale. 'Tis considerable also, that he adds a Power to make a Joynture, which would have been useless if he had intended him in an Estate Tail: And this Power is in the nature of an Emo­lument annexed to his Estate, which seems to be destroyed by the Recovery, neither hath he well executed his Power; for after the Recovery he became seised in Fee, so the Covenant to stand seised may work upon that Estate, and so shall not be taken in pursu­ance of his Authority, which possibly it might have been if he had but an Estate for Life; for without reference to that, it would have been ineffectual; & quando non valet quod ago, ut ago valeat quantum valere potest. And this is agreeable to the Learn­ing in Sir Edward Clere's Case in the 6 Co.

The Court seemed pretty clear in these Points; but because it was upon the first Argument, they gave leave to the parties to speak to it again, if they thought fit. Et Adjornatur. Post.

Goffe's Case.

A Trial at Bar was had upon an Indictment of Murder. The Case appeared to be this:

Goffe (being a Collector of the King's Duty of Chimney-Mony) came with a Constable to the House of one West in Southwark, to demand Mony due upon that account, and entred the House, there being only a Maid-Servant at home; who telling them, That her Master was from home, and that she could not tell where to find him, or come at any Mony to pay them. They presently distrained a Silver Cup which stood by: The Maid thinking to prevent the carrying of it away, stands against the Door where they were to have gone out, and Goffe took her by the Arm and beat her Head and Back against the Door Post divers times, of which she died within three Weeks after.

The Court were of Opinion, that this was but Homicide, and directed the Jury to find it so; for hindring their Passage out, to go away with the Distress, was a Provocation. And 'twas found accordingly.

Meredith's Case.

ERror of a Judgment given in the King's Bench in Ireland; where Robert Meredith was Plaintiff, and that Judgment was Entred, Quod praedict' Carolus Meredith recuperet.

And the Court held it amendable, as the Default of the Clerk; tho' in the Judgment (the Misprision being only in the Name, which was right in the rest of the Record that was before the Clerk, and should have directed him.)

Sir Ralph Bovy's Case.

IN Debt upon an Escape, the Plaintiff sets forth in his Decla­ration a Voluntary Escape.

The Defendant protesting that he did not let him Voluntarily escape, pleads, That he took him upon Fresh pursuit. To which it was Demurred, because he did not traverse the Voluntary Escape, and Resolved for the Defendant: For it is impertinent for the Plaintiff to alledge it, and no ways necessary to his Action. 'Tis out of time to set it forth in the Declaration; but it should have come in the Replication. 'Tis like Leaping (as Hale Ch. Justice said) before one come to the Stile: As if in Debt upon a Bond the Plaintiff should declare, That at the time of sealing and delivery of the Bond the Defendant was of full Age; and the Defendant should plead deins age, without traversing the Plaintiffs Allega­tion. Whiting and Sir G. Reynell's Case 657. in the 2 Cro. seems to be against it: But Harvey and Sir Geo. Reynell 2 Car. in Latch, is Resolved, that no Traverse is to be taken.

Thomas versus Butler.

A Prohibition was prayed to the Ecclesiastical Court, where the Case was this:

Sir R. Ashton made his Will, and therein gave divers Legacies, and the residue of his Goods and Chattels (after his Debts and Legacies paid) he bequeathed to his Wife, and made three Executors and died, whereof one only proved the Will, and after­wards died Intestate.

The Daughter of Sir R. Ashton procures Letters of Admini­stration (the Wife uncalled) and about Five years after the Lady Butler, the Relict of Sir R. Ashton, and residuary Legatee, Sues to have them Repealed: And whether there should be any Prohi­bition to that Suit, the Court thought fit to Advise. For it was Suggested, That there was not Assets to pay the Debts and Legacies, and so there could be no residuum. And Sir Walter [Page 218] Walker (a Doctor of the Civil Law) came to Inform the Court what had been their Course in such cases; and he affirmed, that the Law was positive, absque aliqua distinctione, Assets or not Assets, That Administration should be committed to the residuary Legatee. And so Dr. Denni declared in Eastwick and Standen's Case in Dyer. And in one Button's Case (which goes also by the the Name of Cotton's Case) 17 Jac. this Point was much De­bated, where the next of Kin obtained Administration, the residuum being Devised to another, who afterwards got it Repealed; and the first Administrator appealed to the Delegates, who confirmed the Repeal. Where the Residuum is Devised, the Law judges those words tantamount to the making of him Executor, and it would be very inconvenient that that Allegation, That there is no Residuum, should be admitted; for that may be offered in every Case, and until that is tryed, Administration would not be granted, which might bring much Damage to the Estate of the Intestate. 'Tis also against a strong Presumption, (viz.) That every man leaves as much as will satisfie his Will. He said also, Seeing committing Admi­nistration was of the Cognizance of their Courts he conceived they were to determine all Matters concerning them; and cited the Register, where 'tis said, Cognitio principalis trahit ad se accesso­rium.

Here Hale interrupted him, and said, Since the Statutes had made Provision in those cases, they were to Expound them, and also to whom the Right of Administration appertain'd; and if the Ecclesiastical Court did not commit it accordingly, they use to prohibit them; and that the Court desired only to know from them, what their Usage had been. He also asked him, if it had been Pleaded in their Court, That there was no Residuum, what they would have done?

To this he Answered, That they should have received it as a Plea; but would have Overruled it as Insufficient: As was done in the Countess of Lincolns Case, in 1655.

Dr. Masters contra. In this Case the Daughter was Legatee of an 100 l In the case of the next of Kin, one may be preferred before another; so why not one Legatee before another? Qui prior est tempore potior est jure, in aequali jure, they which first come, should be first served; and vigilantibus, non dormientibus jura sub­veniunt. For Button's Case he said, That there the party to whom Administration was first granted, was no Legatee. So it was in the Countess of Lincolns Case; neither was there a Sentence in that Case, but ended by Composition. In the Case between Blunt and Taylor, in 1670. where one Hall having made his Will, and made the Wife of Blunt Executrix, and Devised to her the Residuum: She proved the Will and died. Blunt Administers to her de bonis non of Hall; and the Grandchild of Hall (being next [Page 219] of Kin) cites Blunt to Repeal his Administration; and obtained a Repeal, which was confirmed upon an Appeal to the Delegates. But Sir William Wild denied the Case to be so; for he said, That the Administration was not Repealed, as unduly granted at first; but for a male Administration: For Blunt being Cited, denied either to pay the Legacy devised to the Grandchild, or bring in an Inventory, and the Case was Debated upon that Point only before the Delegates; and he said, That it was their course to Repeal an Administration, tho' granted to the next of Kin, in case of Abuse.

But Hale said, That therein they exceeded their Power, and a Prohibition ought to go, and that they ought to take sufficient Caution at first to prevent male Administration.

The Court strongly inclined, that no Prohibition ought to go in this Case; for the Reason that 21 H. 8. requires, That Admini­stration should be granted to the next of Kin was, upon the Pre­sumption, That the Intestate intended to prefer him: But now the Presumption is here taken away, the Residuum being disposed of to another; and to what purpose should the next of Kin have it, when no benefit can accrue to him by it? and 'tis reasonable that he should have the management of the Estate, who is to have what remains of it, after the Debts and Legacies paid. And the Aver­ment, That there is no Residuum, is not material; for being once out of the Statute, upon Construction of the Words of the Will, there is nothing ex post facto, can bring it within it. And there are certain Administrations which have been always Ruled to be out of the Statute, as Administrations during Minority, & pendente lite, which need not be granted to the next of Kin, and granting it to the Husband comes not within the Words of the Statute. But because in this case, Administration had been granted so long before the Residuary Legatee came in, and the Administrators by Decrees in Chancery had got in great part of the Estate, and still there were Suits depending there for obtain­ing of the rest, which were near their Effect; which would be abated and set aside if the Administration were now Repealed.

The Court proposed an Accommodation, as most useful to either of the Parties, and advantagious to the Estate; which was accepted.

The Civilians said, That a Legatee that had got Administration, tho' it were after Repealed upon a Citation, should yet retain for his Legacy. Otherwise upon an Appeal; for there the Administration is avoided ab initio. Vid. Blackman's Case, 6 Co.

Bedniff & Ux' versus Pople & Ux'.

A Prohibition was prayed to stay a Suit for Defamation in the Ecclesiastical Court for Words spoken to the Servant of the Plaintiff, (viz.) Go tell thy Mistress Whore, she is a Whore, and I will prove it. It was said, they were common Words of Brabling, and not importing any such Slander for which Suit could be there, 3 Cro. 393. Dimmock versus Fawcet, & 3 Cro. 456. Pewe and his Wife versus Jeffryes.

Hale. These cannot be said to be Words of Heat, as if spoken when the Parties are Scolding together, but were uttered delibe­rately in the Parties absence to her Servant. Formerly they would Prohibit, unless the Words implied some Act to have been done: Vid. Eaton versus Ayloff, 3 Cro. 110. But 'tis Reason the Suit should proceed in this Case, seeing it is for matter of Slander, which is punished by publick Pennance. Therefore Suit lies in London for calling Whore; because by the Custom there, Whores are to be Carted.

Wherefore the Court denied a Prohibition.

Road versus Wilmott.

IN False Imprisonment, the Defendant Iustified by a Capias, directed to him upon a Suit commenced against the Plaintiff in an Inferiour Court. To which the Plaintiff Demurred; because it was not shewn that a Summons was issued first, and Inferiour Courts can Award no Capias, but upon a Summons first Returned. To which it was Answered, That this being admitted, yet it is but an Erroneous Process, in the Execution of which the Officer is excused, who is not to be punished when the Court proceeds inverso ordine.

Hale said, It was a great Abuse in those Courts, their ordinary Practice being to grant a Capias without any Summons, so that the Party is driven to Bail in every trivial Action; and that tho' upon a Writ of Error this Matter is not assignable, because a Fault in the Process is aided by Appearance, &c. yet False Imprison­ment lies upon it, and the Officer cannot Iustifie here, as upon Pro­cess out of the Courts of Westminster. For suppose an Attachment should go out of the County Court without a Plaint, could he that executes it, Iustifie? Yet a Sheriff may Iustifie an Arrest upon a Capias out of the Common Pleas, 10 Co. 76. 3 Cro. 446. tho' there were no Original: But Ministers to the Courts below, must see that things be duly done. Wherefore the Plaintiff must have Judgment.

Monk's Case.

A Debt was recovered against him in this Court, and the Money levied by the Sheriff, which he did not deliver, but was ordered to bring it into Court, until a difference that arose about it was determined.

Monk being indebted to the King, a Writ was issued out to enquire what Goods and Chattels he had.

The Kings Attorney moved, that they might have leave to find this Money, the Court conceived, that the Money being but as a Deposi­tum there, they might find it; and that the Court did not protect it from the Inquisition, as when Goods are under an Attachment, they cannot be distrained; but they would not make any direction for the finding of it.

Blackamore versus Mercer.

IN Judgment against an Executor, a Fieri facias issued out to the Sheriff, with a Scire fieri inquiry, and a Devastavit was found according to the common course, the return whereof was, quod diversa bona quae fuerunt restatoris, &c. habuit quae elongavit & in usum suum proprium convertit.

It was objected against this Return, That it was not said De­vastavit, for in some Cases an Executor may justly convert the Goods to his own use.

Hale said, antiently, when the Sheriff returned a Devastavit, which was not found by any Inquisition, and to which there was no an­swer, it was necessary to insert the word Devastavit. But otherwise, in a return upon this Special Writ; for if the case be, that he hath not wasted the Goods, but only eloigned then▪ so as the Sheriff cannot come at them, the Executor is chargeable upon this Writ, de bonis propriis, and this Return answers the Writ.

Perrot versus Bridges.

IN Trespass quare clausum fregit, and threw down his Fen­ces.

The Defendant pleaded Not guilty to all, but the breaking of the Fences, and for that he justifies; for that he was possessed of certain Corn in the place where, as of his proper Goods, and made a breach in the Fence, as was necessary for the carrying of it away.

The Plaintiff Demurrs Specially, because he did not shew by what Title he was possessed of the Corn. And the Court were of Opinion, that for that cause the Plea was insufficient; for if a [Page 222] Man enters upon anothers Land and sows it, 'tis his Corn while he that hath right re-enters; so if Tenant at Will sows the Ground and then determins his own Will, he cannot break the Hedges to carry the Corn away. And Twisden said, if the Sheriff sells Corn growing by a Fieri facias, the Vendee cannot justifie an entry upon the Land to Reap it, until such time as the Corn is Ripe.

Anonymus.

IF an Administrator brings an Action, the declaring hic in Curia prolat' of the Letters of Administration is but matter of Form, tho' it hath béen held otherwise. For Hale said, 'tis not part of the Declaration, as a Specialty is, upon which Debt, Covenant, &c. is brought, but only shewn upon the Declaration, to enable the Plaintiff to bring his Action.

Note, This is aided by a late Act of Parliament.

Jay versus Bond.

IN Trespass the Defendant pleads, that Ante Quinden' Sancti Martini usque ad hunc diem praed' Jay Excommunicatus fuit & adhuc, existit, & protulit hic in Cur' literas Testamentarias Epis­copi Sarum quae notum faciunt universis quod scrutatis Registeriis invenitur contineri quod Excommunicat' fuit, &c. pro contumacia in non comparendo to a Suit for Tythes, &c. in cujus rei Testimonium praed' Episcopus Sigillum apposuit.

It was objected, that such a kind of Certificate of Excommuni­cation as this is, was not allowable; for it ought to be positive, and under the Seal of the Ordinary; whereas this is only a re­lation of what is found in their Register. Sed non allocatur, for tho' such a form of pleading would be altogether insufficient in our Law; yet their course is sometimes to certifie Excommunication, sub sigillo Ordinarij, and sometimes per literas Testamentarias, as here.

Hale said, to plead Letters Patents without saying sub magno sigillo is naught, and that because the King has divers Seals.

Note, The entry was here quod Defendens venit & dicit, &c. Hale doubted, whether he ought not to have made some kind of defence, tho' no full defence is to be made, when Excommeng­ment in the Plaintiff is pleaded.

Owen versus Lewyn.

THe Plaintiff declared in Action upon the Case, upon the Custom of the Realm against a Common Carrier, and al­so sur Trover and Conversion.

Hale said so he might, for Not guilty answers both; but if a Carrier loseth Goods committed to him, a General Action of Trover doth not lye against him.

Davenant against the Bishop of Salisbury.

IN Covenant. The Plaintiff declared, that the Bishop of Salisbury the Defendants Predecessor, being seized in Fee, demised un­to him certain Lands for 21 years, reserving the antient Rent, &c. and Covenanted for him and his Successors, to discharge all publick Taxes assessed upon the Land; and that since the Defen­dant was made Bishop, a certain Tax was assessed upon the Land by vertue of an Act of Parliament, and that the Plaintiff was forced to pay it, the Defendant refusing to discharge it, unde Actio accrevit, &c.

The Defendant demurred, first to the form, for that 'tis said that the Predecessor Bishop was seized, and doth not say in jure Epis­copatus. But Hale said the Old Books were, that where it was pleaded, that J. S. Episcopus was seized, that it implies seizin in the right of the Bishoprick which is true if he were a Corporation capable only in his politick capacity, or as an Abbot, &c. but in regard he might also be seized in his natural capacity, the Decla­ration was for this Cause held to be ill. The matter in Law was, whether this were such a Covenant as should bind the Suc­cessor as incident to a Lease, which the Bishop is empowred to make by the 32 H. 8. For 'tis clear, if a Bishop had made a Covenant or Warranty, this had not bound the Successor at the Common Law, without the consent of the Dean and Chapter; and if it should be now taken, that every Covenant would bind the Successor, then the Statute of 1 Eliz. would be of no effect: But Hale said, admit­ting this were an antient Covenant, (and if so, it should have been averred to have been used in former Leases,) to discharge [Page 224] ordinary payments, as Pentions or Tenths granted by the Clergy, then it might bind the Successor, by the 32 H. 8. But it were hard to extend it to new charges: And we all know how lately this way of Taxes came in.

But the Court said, that the Declaration being insufficent for the other matter, they would not determine this. But they held, that however this Covenant should prove, it would not avoid the Lease. Vid. Gee, Bishop of Chicester, and Freedlands Case, 3 Cro. 47.

Note, Hale said, that antiently when the Sheriff returned a Res­cous upon a Man, he was admitted to plead to it as to an Indict­ment. But the course of the Court of latter times has been not to admit any Plea to it, but to drive the party to his Action up­on the Case, as upon the return of a Devastavit, &c.

Cole versus Levingston.

IN Ejectment, upon a long, and intricate Special Verdict, (the Chief Justice said, never was the like in Westminster Hall,) these following Points were resolved by the Court, and declared by Hale as the Opinion of himself, and the rest of the Judges.

First, That where one Covenants to stand seized to the use of A. and B. and the Heirs of their Bodies of part of his Land, and if they die without Issue of their Bodies, then that it shall re­main, &c. and of another part of his Land to the use of C.D. and E. and the Heirs of their Bodies, and if they die without Issue of their Bodies, then to remain, &c. that here there are no cross Remainders created by Implication, for there shall never be such Remainders upon construction of a Deed, tho' sometimes there are in case of a Will, 1 Rolls. 837.

Secondly, As this Case is, there would be no cross Remainders if it were in a Will, for cross Remainders shall not rise between three, unless the words do very plainly express the intent of the Devisor to be so; as where black Acre is devised to A. white Acre to B. and green Acre to C. and if they die without Issue of their Bodies, vel alterius eor'; then to remain; there by reason of the words alterius eor', cross Remainders shall be, Dier 303. But otherwise, there would not, Gilbert v. Witty and others, 2 Cro. 655. And in this case, tho' some of the Limitations are between two, there shall be no cross Remainders in them, because there are others between three; and the intent shall be taken to the same in all.

The Dean and Chapter of Durham▪ against the Lord Archbishop of York.

IN a Prohibition the Archbishop pleaded a Prescription, that he and his Predecessors have time out of mind been Guardians of the Spiritualties of the Bishoprick of Durham, Sede vacante; and Issue joyned thereupon, and tried at the Bar this Term.

Hale said, De jure communi the Dean and Chapter were Guar­dians of the Spiritualties, during the vacancy, as to matters of Jurisdiction; but for Ordination they are to call in the aid of a Neighbouring Bishop, and so is Linwood: But the Usage here in Eng­land is, that the Archbishop is Guardian of the Spiritualties in the Suffragan Diocess, and therefore it was proper here to joyn the Issue upon the Usage.

There was much Evidence given, that antiently during the va­cancy of Durham, the Archbishop had exercised Jurisdiction, both Sententious, and other, as Guardian of the Spiritualties: But since H. 8. time, it had béen for the most part administred by the Dean and Chapter; and the Verdict was here for the Dean and Chapter.

King versus Melling.

IN an Ejectment upon a Special Verdict the case was this, R. Melling seized in Fee, having Issue four Sons, William, Ro­bert, Bernard and John, devised the Land in question in this man­ner.

I give my Land to my Son Bernard for his natural Life, and after his decease, I give the same to the Issue of his Body, lawfully be­gotten on a second Wife, and for want of such Issue to John Melling and his Heirs for ever. Provided, that Bernard may make a Joynture of all the Premisses to such second Wife, which she may enjoy during her Life.

R.M. dies, Bernard in the life of his first Wife suffered a Reco­very to the use of himself in Fee; and after her decease Marries a second Wife, and then by Indenture covenants to stand seized to the use of himself for Life, and after to the use of his Wife for her Life, for her Joynture, and dies.

J.M. Enters, and makes a Lease to the Plaintiff: And this Term after Arguments at the Bar, the Court gave their Opinions.

Rainsford for the Plaintiff, First. I hold in this Case, that B. M. takes but an Estate for Life, with a Contingent Remainder to the Issue by his second Wife, for the Devise is by express words for Life; as in Archers Case, 1 Co. a Devise to R. A. for Life, and after to the next Heir Male of R. and the Heirs Males of that Heir Male, Resolved to create, but an Estate for Life to R. A. I rely [Page 226] mainly upon Wilds Case, 6 Co. which was brought before all the Judges of England; where the Devise was to a Man and his Wife, and after their decease to the Children, and resolved to be but an Estate for Life; 'tis true, there were Children at the time of the Devise, but in the end of the Case 'tis said, that in such Case if there were no Children, the Children born after might take by re­mainder, and the first Estate to be but for Life. Clerk v. Day, 1 Cro. 313. the Devise was to Rose his Daughter for Life, and that if she married after his Death and had Heir of her Body, then, that the Heir after his Daughter's Death should have the Land, and to the Heirs of their Body begotten, and if his Daughter died with­out Issue, then to a Stranger. It was held by Gawdy and Fenner, that Rose had but an Estate for Life in this Case, 1 Rolls 837. Devise to his eldest Son for Life, and after his decease to the Sons of his Body lawfully begotten; the Son resolved to have but an Estate for Life.

The Second point, Whether the power to make a Joynture be destroyed by the Common Recovery; these powers to make Estates are of two sorts, either Collateral, as when Executors have power by a Will to sell Land, and such a power cannot be destroyed as appears in Diggs's Case, 1 Co. or powers appendant to Estates as to make Leases, which shall continue after the Estates, to which the power is annexed determins; and the power in the Case at Bar to make a Joynture are of this second sort, and are destroyed by the alteration of the Estate to which it is annexed in privity, as 1 Co. Albany's Case is, so that the Common Recovery being a Forfeiture of the Estate for Life, by consequence 'tis an extinguish­ment of the power.

Thirdly, But admitting the power continues, whether it be well executed; and I hold that it is not, for being seized in Fee at the time of the Covenant to stand seized to the use of his Wife for her Joynture; and this without any reference to his power, the use shall arise out of his Interest, and not be executed by vertue of his power, according to the resolution in Sir Ed. Cleeres Case, 6 Co.

Twisden of the same Opinion. As to the first Point it must be agreed, that these words Issue of the Body ex vi termini make not an Entail, if they were in a Conveyance by Act executed, no more than Children, as the words were in Wilds Case. 'Tis true, in a VVill a Devise of Land to a Man and his Issue creates an Entail, if the Devisee had no Issue at that time, for otherwise those words would be void; for in regard they are limited to take presently, the Issue born after, cannot take as by Remainder, there being none to take in praesenti, they must be intended to be words of Limitation; as a Devise to a Man and his Heirs Males makes an Entail, or otherwise the word Males must be rejected; then seeing the words in themselves are not proper to make an Entail, the [Page 227] next thing to be considered is the intention, (which is to be known by the expressions in the VVill, and not any averment dehors,) the words are, J will give my Land to my Son for Life, and after his decease, I will give the same to the Issue, &c. so that the Land is given to him expresly for Life. Devise of Land in perpetuum makes Fee, but if Land be given by Deèd in perpetuum, there an Estate only for Life will pass, 15 H. 7. A Devise to one paying 10 l this is a Fee, 6 Co. Coliers Case: But a Devise to one for Life paying 10 l makes but an Estate for Life; the Case of Furse and VVinter was, Mich. or Trin. 13 Regis Caroli Rot. 1339. A Devise to his two Daughters equal­ly to be divided between them, and to the Survivor of them, and to the Heirs of the Body of the Survivor. This was so expresly to the Surviror, that it was resolved to be a Joynt Estate, and not in Common. The words here are after the decease of Bernard, I give the same to the Issue of the Body, &c. implying that the Issue should take by Purchase as a Gift, and not by Descent.

Again, The power given to Bernard to make a Joynture shews, that he could not do it by Virtue of his Estate, and therefore needed a power to be annexed. And tho' such powers are usual­ly affixed to Estates Tail; yet when the construction is doubtful, what Estate shall pass, the giving such a power is an argument, that 'tis such an Estate, that cannot make a Joynture, or the like by any other means. The words go further, and for want of such Issue, then to J.M. 'Tis true, if Land be devised to a Man, and if he dies without Issue then to remain, over the Devisee shall have an Entail. Owen 29. But it shall not be so in this Case, because that Clause is crowded in with other Clauses directly to the contrary. I rely mainly upon VVilds Case, 6 Co. and the Case quoted out of Bendlowes in the end of that Case, A Devise to Baron and Feme, and to the Men Children of their Bodies begotten; because it did not appear that there were any more Children, at that time; this made an Estate Tail. But if it had béen, and after their decease to their Children, then the Children should take by Purchase tho' born after. 'Tis true, that case is variously reported in the Books, but I adhere to my Lord Coke, presuming, that being brought before all the Judges in the Argument of VVilds Case, it was a true Report.

As for the second Point 'tis plain, that the power is extinguished, for by the Recovery, the Estate for Life to which it was annexed in privity is gone and forfeited, so that 'tis not necessary to dispute the third Point, whether well executed or no: But up­on the whole, I agree with my Brother Rainsford, that the Plain­tiff ought to have Judgment.

Hale. I differ from my two Brothers, and tho' I was of their Opinion at the finding of the Special Verdict; yet upon very great Consideration of the Case, I am of Opinion for the Defen­dant. I shall proceed in a different method from my Brothers, and [Page 228] begin with that Point which they made last; and I agree with them, admitting that Bernard had but an Estate for Life, that the power was destroyed; also here the Recovery does not only bar the Estate, but all powers annexed to it, for the recompence in value is of such strong Consideration, that it serves as well for Rents, Possibilities, &c. going out of and depending upon the Land, as for the Land it self: So Fines and Feoffments do ransack the whole Estate, and pass, or extinguish, &c. all Rights, Conditions, Powers, &c. belonging to the Land, as well as the Land it self.

Secondly, I agree with my Brother Rainsford, that if Bernard had but an Estate for Life by the Devise, the power was not well executed. Where Tenant for Life has a power to make Leases, 'tis not always necessary to recite his power when he makes a Lease; but if he makes a Lease, which will not have an effectual continu­ance, if it be directed out of his interest, there it shall be as made by virtue of his power; and so it was resolved in one Roger's Case, in which I was Counsel.

Again, Tho' it be here by Covenant to stand seized, an improper way to execute his power; yet it might be construed an Execu­tion of it, Mich. 51. In this Court, Stapleton's Case, where a Devise was to A. for Life, Remainder to B. for Life, Remainder to C. in Fee, with power to B. to make his Wife a Joynture. B. covenanted to stand seized for the Joynture of his Wife, reciting his power, tho' this could not make a legal Joynture; yet it was resol­ved to enure by virtue of his power, quando non valet quod ago ut ago valeat quantum valere potest. But in this Case Bernard has got a new Fee, which tho' it be defeasible by him in Remainder; yet the Covenant to stand seized shall enure thereupon, and the use shall arise out of the Fee.

Thirdly, I was at the first opening of the Case of Opinion, that Bernard had but an Estate for Life, but upon deep Examina­tion of the Will, and of the Authority, and Considerations of the Consequences of the Case, I hold it to be an Estate Tail.

And first to ease that Point of all difficulties, if cannot be denied; but a Devise to a Man, and the Heirs of his Body by a second Wife makes an Estate Tail executed, tho' the Devisee had a Wife at the time. As the Case often cited, Land given to a Married Man and a Married Woman, and the Heirs of their Bodies. We are here in case of the Creation of an Estate-Tail, where in­tention has some influence (voluntas Donatoris, &c.) and may help words which are not exactly according to legal form, 39 Ass. 20. Land given to a Man and his Wife, & haeredi de corpore & uni haeredi tantum, this judged an Entail. Again, we are in case of an Estate Tail to be created by a Will, and the intention of the Testator, is the Law to expound the Testament; therefore a Devise to a [Page 229] Man and his Heirs Males, or a Devise to a Man, and if he dies without Issue, &c. are always construed to make an Entail. It must be admitted, that if the Devise were to B. and the Issue of his Body, having no Issue at that time, it would be an Estate Tail; for the Law will carry over the word Issue, not only to his immediate Issue, but to all that shall descend from him: I agree it would be otherwise, if there were Issue at the time. Tayler and Sayer, 41 Eliz. rot. 541. a Devise to his Wife for Life, 1 Cro. 742. Remainder to his Issue, (having two Children) it was held the Remainder was void, being to the Issue in the singular number, for incertainy which should take. But that was a little too rank, for Issue is nomen collectivum.

Again, I agree, if a Devise be made to a man, and after his death to his Issue (or Children,) having Issue at that time, they take by way of Remainder And that was the only Point adjudged in Wild's Case, and there also against the Opinion of Popham and Gawdy.

This way being made, I come to the Case it self, and shall briefly give my Reasons, why I hold Bernard has an Estate Tail.

First, Because the word Issue is nomen collectivum, and takes in the whole Generation ex vi termini; and so the Case is stronger than if it were Children: And where 'tis said, to the Issue that he shall have of the Body of the second Wife; that is, all that shall come of the second Wife: For so 'tis understood in common Parlance.

Secondly, In all Acts of Parliament, Exitus is as comprehensive as Heirs of the Body. In Westm. 2. de donis, Issue is made a term of equivalence to Heirs of the Body; for where it speaks of the Alienation of the Donee, 'tis said, quo minus ad exitum discenderet. So in 34 H. 8. of Entails setled by the Crown.

'Tis true, in Conveyances, &c. the wisdom of the Law has appropriated the word Heirs as a Term of Art. In Clerke's Case: A Lease was made to commence after the death of his Son without Issue; the Son had a Son and died, and then that Son died without Issue. It was Resolved both in the Kings Bench and the Exchequer, that the Lease should commence; for Issue being nomen collecti­vum, whenever the Issue of the Son failed, the term of Com­mencement did happen.

But now to see the difference: Tyler's Case, Mich. 34 Eliz. B.R. He had Issue A. B. C. and D. and Devised to his Wife for Life, and after her death to B. his Son in Tail, and if he dies without Issue, then to his Children. A. had Issue a Son and died, and B. died without Issue.

[Page 230]Resolved, that the Son of A. should not take as one of the Children of the Testator. Which Case I cite, to shew the odds between the word Issue and the word Children.

My second Reason is from the manner of the Limitation, which is to his Issue; and of his Body lawfully begotten upon the second Wife, Phrases agreeable to an Estate Tail; and the meaning of a Testator is to be spelled out by little Hints. It is admitted in Wild's Case in the 6 Co. 17. that if the Devise had been, to the Children of their Bodies, it would have been an Entail.

Thirdly, It appears by the Devise, that the Testator knew there could be no Children at that time, and shall not be supposed to intend a contingent Remainder.

Fourthly, It appears that the Testator did not intend to prefer the Children of the first Wife of Bernard, but did the Children of the second, and therefore cannot be thought to mean, that John the younger Brother of Bernard should take before failure of the Issue which Bernard should have by his second Wife. And to this purpose is Spalding's Case, 3 Cro. 185. A Devise to his eldest Son and the Heirs of his Body after the death of his Wife; and if he died living the Wife, then to his Son N. And devised other Lands to another Son, and the Heirs of his Body; and if he died without Issue, then to remain, &c. The first Son died living the Wife. It was strongly urged, that his Estate should cease; for being said, If he died living the Wife, this was a Corrective of what went before. But 'twas Ruled by all the Court, that it was an absolute Estate Tail in the first Son, as if the words had been, If he died without Issue living the Wife; for he could not be thought to intend to prefer a younger Son before the Issue of his eldest.

Fifthly, The words are further, and for want of such Issue, then to John; which words in a Will do often make an Estate Tail by Implication. As 4 Jac. Robinson's Case: A Devise to A. for Life, and if he died without Issue, then to remain; A. took an Entail. So Burley's Case, 43 Eliz. A Devise to A. for Life, Remainder to the next Heir Male; and for default of such Heir Male, then to remain. Adjudged an Estate Tail. 'Tis true, Dyer 171. is, where Lands were Devised to a man and the Heirs Males of his Body, and if he died without Issue, &c. these last words did not make a Tail General to the Devisee: For an Implication of an Estate of Inhe­ritance shall never ride over an express limitation of an Inheri­tance before; being 'tis said here for want of such Issue the Land should remain, 'tis plainly meant, that it should not before the Issue failed, and then the Issue must have it so long (for none else can,) and so 'tis an Estate Tail.

[Page 231]I come now to Authorities: 6 Eliz. Anderson, num 86. Moor pl. 397. A Devise to his Son for Life, and after his decease to the Men Children of his Body, said to be an Estate Tail, and so cited by Coke in that Book, and so contrary to his Report of it in Wild's Case, Bendloes, num. 124. But that Case is not so strong as this; for Children is not so operative a word as Issue. Rolls 839. A Devise to his eldest Son for Life, & non aliter, (for so were the words, tho' not printed in the Book) and after his decease to the Sons of his Body; it was but an Estate for Life, by reason of the words Non aliter. Hill. 13 Car. 2. Rot. 121. Wedg­ward's Case: A Devise to his Son Thomas for Life, and after his decease (if he died without Issue living at his death) then to the Daughter, &c. it was held to be an Estate for Life. But were it an Estate Tail or no, it was not necessary to be Resolved, the Case depending upon the destruction or continuance of a Contin­gent Remainder, which would have been gone had the Devise made an Estate Tail; again, there being an express Devise for Life, they would not raise a larger Estate by Implication.

Again, Wild's Case, where Lands were Devised to A. for Life, Remainder to B. and the Heirs of his Body, Remainder to Wild and his Wife, and after their decease to their Children. And the Court of Kings-Bench were at first divided: Indeed, it was after­wards adjudged an Estate for Life to Wild and his Wife:

First, Because having limited a Remainder in Tail to B. by express and the usual words; if he had meant the same Estate in the second Remainder, 'tis like he would have used the same words.

Secondly, It was not, after their decease to the Children of their Bodies; for then there would be an Eye of an Estate Tail.

Thirdly, The main Reason was, because there were Children at the time of the Devise; and that was the only Reason the Reso­lution went upon in the Exchequer Chamber. And tho' it be said in the latter end of the Case, That if there were no Children at that time, every Child born after might take by Remainder; 'tis not said positively that they should take: And it seems to be in opposition to their taking presently; but however that be, it comes not to this Case: For tho' the word Children may be made nomen collectivum, the word Issue is nomen collectivum of it self. Hill. 42. and 43 Eliz. Bifield's Case: A Devise to A. and if he dies not having a Son, then to remain to the Heirs of the Testator. Son was there taken to be used as nomen collectivum, and held an Entail.

[Page 232]I come now to answer Objections:

First, 'Tis objected, that in this Case the Limitation is expresly for Life, and in that respect stronger than Wild's Case: And this is the great difficulty.

But I Answer:

That tho' these words do weigh the Intention that way, yet they are ballanced by an apparent Intention that weighs as much on the other side; which is, That as long as Bernard should have Children, that the Land should never go over to John; for there was as much reason to provide for the Issue of the Issue, as the first Issue.

Again, A Tenant in Tail has to many purposes but an Estate for Life.

Again, 'Tis possible that he did intend him but an Estate for Life, and 'tis by consequence and operation of Law only that it becomes an Estate Tail. 1651. Hansy and Lowther: The Case was, A Copyholder surrendred to the use of his Will, and Devised to his first Son for Life, and after his decease to the Heir Male of his Body, &c. This was Ruled to be an Estate Tail; and this differs from Archer's Case in the 1st of Co. for that the Devise there was for Life, and after to the Heir Male, and the Heirs of the Body of that Heir Male: There the words of Limitation being grafted upon the word Heir, it shews that the word Heir was used as Desig­natio personae, and not for Limitation of the Estate. So is the Case of Clerk and Day, 1 Cro. 313.

Another Objection was, That there being a Power appointed to Bernard to make his Wife a Joynture, it shews, that it was in­tended he should have but an Estate for Life, which needed such a Power, and not an Estate Tail; for then he might have made a Joynture without it?

I Answer, That Tenant in Tail cannot, by virtue of such Estate, make a Joynture, without discontinuing or destroying his Estate. Sed Judicium pro Quer'. There being Justice Twisden and Justice Rainsford against the Chief Justice.

Anonymus.

A Prohibition was prayed to the Ecclesiastical Court, for that they Cited one out of the Diocess to Answer a Suit for a Legacy: But it was denied, because it was in the Court where the Probat of the Will was. For tho' it were before Com­missioners appointed for the Probat of Wills in the late Times; yet now all their Proceedings in such cases are transmitted into the Prerogative Court. And therefore Suits for the Legacies con­tained in such Wills ought to be in the Archbishop's Court; for there the Executor must give account, and be discharged, &c.

Note, When a man is in custodia Marescalli, any man may Declare against him in a Personal Action, and if he be bailed out, he is still in custodia to this purpose, (viz.) quoad Declarations brought in against him that Term: For the Bail are (as it were) Delegated by the Court to have him in Prison. Hob.

Error is not well assigned, That there was no Bail filed; unless added, That the Defendant was not in custodia.

Debt.

IN an Action of Debt upon a Sheriffs Bond, the Case was this:

A man was Arrested upon a Latitat, in placito Transgr' ac etiam bille pro 40 l de debito. And the Condition of the Bond given to the Sheriff was, to appear at the Day of the Return of the Writ, to answer to the Plaint in plito debito. And it was urged, that this made the Bond void by the Statute of 23 H. 6. for the Condition should have been to Appear at the Day, to Answer in the Action upon which the Process went out, and that was in this Case but an Action of Trespass, and the adding the Ac etiam debiti, &c. is but to satisfie the late Act, and for Direction to the Sheriff, to what Value he shall require Bail. And it was usual to Endorse the Cause of Action before the Statute upon the Latitats, that the Sheriff might insist upon Bail accordingly. So this is a material Vari­ance from the Statute, and not like some of these which are remembred in Beaufage's Case in the 10 Co. and Dyer 364. And to this the Court inclined.

[Page 234]And Hale Cited a Case between Button and Low, adjudged Mich. 1649. An Attachment went out of Chancery to answer Coram nobis in Cancellaria ubicunque, &c. and the Sheriff took a Bond, Conditioned to Appear Coram Rege in Cancellaria ubi­cunque, &c. apud Westmonasterium: And for the addition of Westminster, the Bond was held to be void.

Anonymus.

THe Court was moved for a Prohibition to the Archbishop's Court, to stop their Proceedings in a Cause belonging to the Jurisdiction of Durham, upon a Suggestion, that the Dean and Chapter of Durham, Sede vacante, have Cognizance there, as Guardians of the Spiritualties.

And the Court granted a Prohibition; for the Right of Juris­diction was tryed between the Archbishop and Dean and Chapter the last Term, and found against the Archbishop; and therefore he was concluded by the Verdict, until the Record was reversed by Error or Attaint.

Thodie's Case.

THody and two others were Indicted, for that Conspiratione inter eos habita, they enticed J. S. to play, and cheated him with False Dice.

Thody pleaded, and was found Guilty; the others not having pleaded. It was moved, that Judgment might not be Entred against him until the others came in; for being laid by way of Conspiracy, if the rest should chance to be acquitted, no Judgment could be given against him: And so is 14 H. 6. 25.

Hale said, If one be Acquitted in an Action of Conspiracy, the other cannot be Guilty: But where one is found Guilty, and the other comes not in upon Process, or if he dies hanging the Suit; yet Judgment shall be upon the Verdict against the other. And so is 18 E. 3. 1. and 24 E. 3. 34.

Wild said, The difference was, where the Suit was upon Conspiracy wherein the Villanous Judgment was to be given, and where the Conspiracy is laid only by way of Aggravation, as in this Case.

Hale said, It would be the same in an Action against two upon the Case for Conspiracy; but not in such Actions, where tho' there be a Charge of Conspiracy, yet the Gift of the Action is upon another matter.

But the Court said, They would give him two or three days for the bringing in of the other two, and defer the Entry of the Judgment in the mean time.

Methyn versus the Hundred of Thistleworth.

THe Case was moved again by North Solicitor. He urgrd for the Plaintiff, That the Issue being, Whether they took the Felon upon Fresh Suit? It being not found that there was any actual Taking, or that the Fresh Suit continued until Sir J. Ash found the Felon in the presence of Sir P. Warwick. Also, it was found that Sir J. Ash was a Justice of Peace, and therefore it was his duty to Apprehend him.

To this it was Answered,

That the Statute of Winton (upon which the Action is founded, and not upon the 27 of Eliz. and therefore it is ill if it concludes contra formam Statutorum) doth not say shall Take, but shall Answer the Bodies of the Offenders; which is, Answer them to Justice: And therefore if the Felon be taken upon another account, and the Country finding him in Prison, cause him to be Indicted; this satisfies the Statute, Goldsb. 55.

Again, it was more decent for Sir John Ash being concerned as an Inhabitant of the Hundred to leave this Matter to the other Justice of the Peace; (for it has been known, that Justices of the Peace have been Censured in the Star-Chamber, for being too forward to interpose in their own business:) But if it were an omission of the Duty of his Office, that could not be Objected to him as an Inhabitant, having done enough to satisfie the Statute of Winton.

Wild said, That the Defendant should have Demurred, because the Issue is ill joyned, (viz.) absque hoc that he took him super eadem recenti insecutione: For if he were not immediately taken upon Fresh pursuit, it were sufficient; but the Verdict finding Fresh Suit was made, it may be taken by Intendment (which shall help out a Special Verdict,) that it was directed this way, and continued until the finding of him in the presence of Sir P. Warwicke. Et sic Judicium pro Def. Ante.

Dacres versus Duncomb.

IN Trover, after Imparlance the Defendant pleaded, That the Plaintiff (with two others) brought Trover for the same Goods before; which Action is still depending: And demanded Iudgment of the Writ.

The Plaintiff Replied, That the other two died before the Action was brought, and so that Writ abated. To which it was Demurred, and Iudgment quod respondeat ouster: For in all Actions, where one Plaintiff dies, the Writ abates; (save in an Action brought by two Executors.) And Hale said, So it [Page 236] should in a Quare Impedit; but that it is revivable by Journeys Accounts.

Wild said, That the Pleading, That the Two died before the Action brought, was double.

Hale. No, for he must shew both were dead to enable him to bring this Action alone.

Twisden. How comes this Plea in Abatement after an Impar­lance?

Hale. Tho' after an Imparlance the Defendant cannot plead a Misnosmer, or the like, or Ancient demesne; because he admits, he ought to answer the Writ; yet such a Plea in Abatement as this he may. But that comes not in question; because the Plaintiff Replied to it, and did not Demur.

Nota, Debt for Rent in the Detinet against an Executor, shall be brought where the Lease was made; because 'tis for the Arrears in the Testators time: But where 'tis in the debet and detinet, (viz.) for Rent incurred in the Executors time, it must be where the Land lies. And so Agreed by the Court.

Nota, No Tythes to be paid for Pasture wherein the Plow-Horses are fed.

And Hale said, So it is of Saddle-Horses.

Anonymus.

A Foreign Attachment in an Inferiour Court was pleaded in this manner: That by Custom (time out of mind) whoever Leavied a Plaint, pro aliquo debito, against another, upon Sur­mize, That a Stranger was Indebted to the Defendant; that Process issued forth to attach, &c.

Against this Pemberton Objected, That it was not said pro aliquo debito which did arise infra Jurisdictionem Curiae.

The Court said, that they need not express that the Debt did arise infra Jurisdictionem; for perhaps it did not. And yet, if an Action be brought in such case, and the Debt be laid to be Con­tracted infra Jurisdictionem Curiae, if the Defendant will plead to it he may; but he shall never be admitted to assign for Error in Fact, that the Debt did arise extra Jurisdictionem Curiae. But if he had tendred such a Plea in the Inferiour Court upon Oath; then, if they had refused it, it would have been Error. Wherefore 'tis enough in this case to say, If a Plaint were Levied pro aliquo debito infra Jurisdictionem without averring that the Debt did arise within the Jurisdiction. Also there cannot be a Custom for a Foreign Attachment, before there be some Default in the Defendant. Wherefore the Pleading was there held to be Ill.

Mosdel, the Marshal of the Court, against Middleton.

IN Debt upon a Bond with Condition to be a true Prisoner, and to pay him so much by the week for Chamber Rent.

To this was pleaded the Statute of 23 H. 6. And the Court resolved, it was void by that Statute.

Hale said, a Bond for true Imprisonment is good prima facie; but the Defendant may aver, that it was also for ease and favour. And so it was adjudged in Sir John Lenthals time, who brought Debt upon a Bond of 2000 l and the party pleaded, That it was taken for ease and favour; and upon the Tryal it appeared, That after that Bond the Defendant was permitted sometimes to go into the Country with a Keeper, whereas before he was kept strait Prisoner; and upon this matter the Bond was ruled to be void.

Twisden cited my Lord Hob. That a Gaoler could not take a Bond of his Prisoner for a just Debt.

Hale. That seems hard, because he takes it in another capacity. But he cannot take a Bond for his Fees, because it would give him opportunity to extort. Also, here part being against the Statute it avoids all, but the Condition of a Bond or Covenant may in part be against the Common Law, and stand good in the other part.Hob.

Cox versus Matthews.

IN Action for a Nusans, in stopping of the Lights of his House.

Exception was taken to the Declaration, for that he did not say autiquum Messuagium; and yet it was ruled to be good enough, for perhaps the House was new Built: And the truth of this Case was said to be, that the Defendant had Built the House and Let it to the Plaintiff, and would now go to stop up the Lights.

Hale said, if a Man hath a Watercourse running thorough his Ground, and erects a Mill upon it, he may bring his Action for diverting the Stream, and not say antiquum molendinum; and up­on the Evidence it will appear, whether the Defendant hath Ground thorough which the Stream runs before the Plaintiffs, and that he used to turn the Stream as he saw cause, for otherwise he cannot justifie it, tho' the Mill be newly erected.

Watson versus Snead.

IN Debt for 20 l the Plaintiff declared, that the Defendant con­cessit se teneri per scriptum suum Obligatorium, &c. the words of the Deed were, I do acknowledge to Edward Watson by me twenty pounds upon Demand, for doing the work in my Gar­den.

Vpon a Demurrer to the Declaration, it was adjudged a good Bond.

Morse versus Slue.

THe Case was argued two several Terms at the Bar, by Mr. Holt for the Plaintiff, and Sir Francis Winnington for the Defendant, and Mr. Molloy for the Plaintiff, and Mr. Wallop for the Defendant; and by the Opinion of the whole Court, Iudgment was given this Term for the Plaintiff.

Hale delivered the Reasons as followeth.

First, By the Admiral Civil Law the Master is not chargeable, pro damno fatali, as in case of Pirates, Storm, &c. but where there is any negligence in him he is.

Secondly, This Case is not to be measured by the Rules of the Admiral Law, because the Ship was infra corpus Comitatus.

Then the First Reason wherefore the Master is liable is, because he takes a Reward; and the usage is, that half VVages is paid him before he goes out of the Country.

Secondly, If the Master would, he might have made a Caution for himself,4 Co. Southcotes Case. which he omitting and taking in the Goods generally, he shall answer for what happens. There was a Case (not long since) when one brought a Box to a Carrier, in which there was a great Sum of Money, and the Carrier demanded of the Owner what was in it; who answered, That it was filled with Silks and such like Goods of mean value; upon which the Carrier took it, and was robbed. And resolved that he was liable. But if the Carrier had told the Owner, that it was a dangerous time, and if there were Money in it, he durst not take charge of it; and the Owner had answered as before, this matter would have excused the Car­rier.

Thirdly, He which would take off the Master in this Case from the Action must assign a difference between it, and the Case of a Hoyman, Common Carrier or Inholder.

'Tis objected, That the Master is but a Servant to the Owners.

Answer, The Law takes notice of him as no more than a Servant. 'Tis known, that he may impawn the Ship if occasion be, and sell bona peritura: 2 Cro. 330. Hob. 11. He is rather an Officer than a Servant. In an Escape the Gaoler may be charged, tho' the Sheriff is also liable; [Page 239] for respondeat superior. But the Turnkey cannot be sued, for he is but a meer Servant: By the Civil Law the Master or Owner is chargeable at the Election of the Merchant.

'Tis further objected, That he receives Wages from the Own­ers.

Answer, In effect the Merchant pays him, for he pays the Own­ers fraight, so that 'tis but handed over by them to the Master; if the Fraight be lost, the Wages are lost too, for the rule is Fraight, is the mother of Wages: Therefore, tho' the Declaration is, that the Master received Wages of the Merchant, and the verdict is, That the Owners pay it, 'tis no material variance.

Objection, 'Tis found, that there were the usual number of Men to guard the Ship?

Answer, True, for the Ship, but not with reference to the Goods, for the number ought to be more or less as the Port is dangerous, and the Goods of value, 33 H. 6. 1. If Rebels break a Gaol, so that the Prisoners escape, the Gaoler is liable; but it is otherwise of Enemies; so the Master is not chargable, where the Ship is spoiled by Pirates. And if a Carrier be robbed by an Hundred men, he is never the more excused. Ante.

Cox versus Mathews.

THe Case was moved again. And Hale said, that if a Man Builds a House upon his own ground, he that hath the Contiguous ground may Build upon it; also, tho' he doth thereby stop the Lights of the other House, for cujus est solum ejus est usque ad coelum; Poph. 170. and this holds, unless there be Custom to the contrary, as in London. But in an Action for stopping of his Light, a Man need not de­clare of an antient House; for if a Man should Build an House up-his own ground, and then grant the House to A. and grants certain Lands adjoyning to B.B. could not Build to the stopping of A's Lights in that Case, 1 Cro. Sands and Trefuses 415. But the Case at Bar is without question, for he declares, That the Defendant fixed Boards to the Windows of the Plaintiff's House.

Anonymus.

UPon a motion to set aside an Inquisition taken before the Co­roner, super visum corporis, certified into this Court, that J.S. killed himself, and was Non compos mentis. Hale said, such an In­quisition that finds a Man Felo de se is Traversable, but no Tra­verse can be taken to make a Man Felo de se; but fugam fecit is never Traversable.

Clue versus Baily.

IN Replevin the Defendant made Conusans as Bailiff to J. S. who demised the place where, under certain Rent, &c.

The Plaintiff Traverses the Demise, and concluded & hoc para­tus est verificare. To which the Defendant demurred generally. And the Court were in doubt, whether this ill conclusion of the Plea were not helped upon a general Demurrer.

Hale, It were well the Causes of Demurrer were always assign­ed Specially; and not to say only, incertum & dubium & caret forma, &c. The old way was, when Pleadings were drawn at the Bar to make the exception immediately, and the other Party might mend if he pleased, or might Demurr if he durst venture it. And tho' now they are put in Paper; yet such a Course should be observed, for Demurrers were not designed to catch Men: This not concluding to the Country, seems to be but matter of Form, and the Demurrer should have been quia non bene conclu­dit. Here the Defendant pleads, that J. S. demised the Land for Life, and without expressing the place of the Demise, because of necessity it must be upon the Land.

Blake versus . . . .

ERror of a Judgment in Replevin in the Mannor Court of Hex­am in Northumberland, where the Defendant avowed for Damage fesant.

The Plaintiff replied, that J. S. was seized of the Mannor of Tallowfield in D. and that time out of mind he had Common, &c. in the place where, and shewed himself to be Tenant, and justified the putting in of his Beasts for Common; and the Prescription being traversed, it was found for the Avowant. The Errors assigned were.

First, In the Venire, which was, quia nec the Plaintiff, nec Defendant, aliqua affinitate attingunt, instead of qui nec. Hale said, it was aided by the Statute of 8 H. 6. that helps Error in Process. But Twisden said, that Statute did not extend to inferiour Courts.

Another Error insisted on was, that the Avowant did not shew that the Mannor of Tallowfield was infra Jurisdictionem Curiae: But the Venire was, extra vill' & Manerium de Tallowfield, infra Jurisdictionem Curiae. But the Court held, that that was not suffi­cient to intimate that it was within the Jurisdiction, but must have been shewn in pleading. And Hale said, seeing the Plaintiff had omitted to do it, the Avowant might in his Rejoynder have alledged Tallowfield to have béen within the Jurisdiction, as where one pleads a Plea without a place, the other is not bound to [Page 241] Demurr, but for his expedition may shew the place in his Re­plication. Then VVild said, this seems to be aided by the Statute of 21 Jac. which Enacteth, That if the Jury comes out of any one of the places it sufficeth; and here the Jury came as well out of the Vill where the Beasts were taken, (shewn to be within the Ju­risdiction) as the Mannor of Tallowfield.

Hale. That will not serve in this Case, for the Court could not Award a Venire to a place out of the Jurisdiction, nor Jurors could not be returned out of such a place to try a Cause there.

Another Error assigned was, that the Award of the Venire was praeceptum est per seneschallum, and not said in eadem Curia.

To which it was answered.

That being on the same day upon which the Court was said to be held, it must be intended so.

VVild held, the Judgment ought to be reversed for the last Cause.

Twisden, Principally for the first, for he held that the Statute of the 8 H. 6. Aided not Process in inferiour Courts; therefore, where in the Award of the Venire it has been per quos rei veritas me­lius Scire, poterit instead of Sciri, the Judgment has been re­versed.

Hale said, that it ought to be Sciri, for so it is in the Register, and in the Statute of Eliz. that sets the Estate of Jurors at 4 l per ann. But for the second Error, he held that the Judgment ought to be reversed.

Whaley versus Tancred.

TRin. 23 Car. 2. Rot. 1513. In an Ejectment the Case was this; Lessee for years makes a Feoffment and levies a Fine, five years pass, Whether the Lessor should have five years after the Term expired was the question; and after the hearing of Ar­guments the Court resolved, that he should, as well as when Lessee for Life levies a Fine, which differs not in reason from this Case, for there the Lessor may have his Writ de consimili casu present­ly, as here he may bring his Assize. And though in 9 Co. Podgers Case, 'Tis said, that where Lessee for years is ousted by a Dis­seisor, who levies a Fine, if five years pass without claim the Lessor is barred, that is not the same with this Case; for the Disseissor comes in without the consent of the Lessee, and of his own wrong; and if he can defend his Possession five years he shall hold it; but here all is done with the privity, and by the means of the Lessee who is trusted with the Possession, and it would be of most mischievous import to Mens Inheritances, if they should not have five years after the Lease ended; and it be­ing put of a Disseisin in Podger's Case, seems to imply the contrary in other Cases; and tho' there were many notorious Circumstan­ces [Page 242] of fraud in Fermours Case, which Co. in his report of it lays much weight upon; yet it does not thence follow, that the Law is not the same where there are not such evidences of fraud. In other Books where that case is reported, the resolution does not seem to go so much upon the particularities of the Fraud. 'Tis Fraud apparent in the Lessee.

Wilston versus Pilkney.

IN Debt for Rent the Plaintiff declared, that the Dean and Chap­ter of, &c. demised to the Defendant for Life; by force of which he entred and demised the Land to the Plaintiff for years, by virtue of which he was possessed, and afterward granted to the Defendant, reserving a Rent, for which he brings his Action.

To this Declaration the Defendant Demurrs.

First, Because he doth not say of the Deans Demise hic in Curia prolat', which Demise must be by Deed.

Secondly, He says, that the Defendant entred by force thereof, which is impertinent to be alledged upon a Lease for Life, be­cause Livery implies it.

Thirdly, As to the matter, that the Reservation was void, it being upon a surrender by Parol. A Rent cannot be reserved upon a Feoffment by Parol; so where Lessee for life, or years assigns over his whole interest, 12 H. 4. 14. 9 H. 6. 43. 12 H. 4. 17. also no Rent can be reserved upon a Conveyance that works an Extinguishment, un­less by Deed, where it is good upon the contract. Peto's Case, 3 Cro. 101. is, that a Surrender drowns the interest to all in­tents and purposes between the Parties. Dier 251. The Tenant for Life agreed with him in Reversion, that he should have his Land for the Annual Rent of 20 s 'tis doubted there whether this amounts to a Surrender, there being no Deed or Livery. But in 2 Rolls 497. 'tis said, if it had been a Surrender, the reservati­on had béen void.

Hale. I do most doubt of the first exception, because the Deed was not produced. And for the second it were better plea­ding to have said by force of which he was seized; but thats not of necessity. And as to the matter, the Court resolved for the Plain­tiff. For

1. The Reservation was good by the contract, tho' without Deed. And so it was adjudged in this Court in Manly's Case, that Tenant for years might assign his whole Term by Parol, rendring Rent; so in the Case of Purcas and Owen, 23 Car. But it was doubted, whether an Action would lye until the last day were past. 'Tis all one where the Grant is made to him in Reversion, which is not actually, but consequentially a Surrender by opera­tion of Law, before which the contract is perfected, upon which the [Page 243] Rent arises. 7 E. 4. is, that the Lessee may Surrender upon Con­dition; and there is no reason, why a Rent cannot be created up­on it, as well as a Condition. If it were in the case of Tenant for Life, a Deed were requisite, as well for a Rent as a Condition in respect of the Freehold, but that is not so in case of Tenant for years. Vide Postea Cartwright and Pinkney.

Hanslap versus Cater.

IN Error upon a Judgment in the Court of Coventry, where the Plaintiff Cater declared. That the Defendant being indebted to him infra Jurisdictionem Curiae, pro diversis Bonis & Mercimo­niis ante tunc venditis & deliberatis, did then and there assume, &c. Vpon Non Assumpsit pleaded, and a Verdict and Judgment for the Plaintiff, the Error assigned was, That the Goods were not alledged to be sold within the Jurisdiction of the Court.

Hale and Wild seemed to be of Opinion, that it was well enough, the being indebted, and the promise being laid to be within the Jurisdiction.

Twisden Contra, and said he had known many Judgments rever­sed for the same Cause.

It being moved again this Term, Hale consented that it should be reversed according as the latter Presidents have been; for he said it was his Rule Stare decisis, Parsons and Muden, Pasch. 22. Car. 2. Rot. out of Barnstaple Court.

John Brown's Case.

HE was indicted upon the Statute of 3 H. 7. cap. 2. for the forcible taking away and marrying of one Lucy Ramsy, of the Age of fourteen years, having to her Portion 5000 l He was tried at the Bar, and the fact appeared upon the Evidence to be thus, She was inveigled into Hide Park by one Mrs. P. confe­derate with Brown, (who had prepared a Coach for that purpose) to take the Air in an Evening, about the latter end of May last, and being in the Park the Coachman drove away from the rest of the company, which gave opportunity to Brown, who came to the Coach side in a Vizar-mask, and addressing himself first to Mrs. P. [Page 244] soon perswaded her out of the Coach, and then pulls out a Maid servant there attending Mrs. Ramsy; and then gets himself into the Coach, and there detains her until the Coachman carried them to his Lodgings in the Strand, where the next Morning he prevails upon her, (having first threatned to carry her beyond Sea if she refused) to Marry him, but was the same day apprehended in the same House.

It was a first doubted, whether the Evidence of Lucy Ramsy was to be admitted, because she was his Wife de facto, tho' not de jure. But the Court seriatim delivered their Opinions, that she was to be admitted a Witness.

First, For that there was one continuing force upon her, from the beginning till the Marriage; wherefore, whatsoever was done while she was under that violence was not to be respected.

Secondly, As such Cases are generally contrived, so hainous a Crime, would go unpuished, unless the Testimony of the Woman should be received.

Thirdly, In Fulwoods Case, reported in 1 Cro. (which was read in the Court) the Woman was a Witness, tho' married as here; and Rainsford cited my Lord Castlehavens Case, where the Coun­tess gave Evidence, that he assisted the committing a Rape upon her: But Hale said he was not governed by that case, because there was a Wife de jure, the Evidence being clear as to all the Points of the Statute, (viz.)

First, That the taking was by force.

Secondly, That the Woman had substance according to the Sta­tute.

Thirdly, That Marriage ensued, tho' it did not appear she was deflowred, the Jury found him guilty. Whereupon Judgment was given, and he was hanged.

Note, 39 Eliz. cap. 9. takes away Clergy from this Offence.

Bayly versus Murin.

IN an Ejectment upon a Special Verdict, the Case was to this effect.

One Cooper Vicar of Granbrook in Kent, being seized of an House and Lands thereunto appertaining, parcel of the Endow­ment of his Vicaridge situate in a Market Town in the year 1672▪ lets it for three years, and one year of the said Lease being expi­red the 11 of Sept. 1673. lets it for 21 years, to begin from Michaelmas following, reserving the Rent during the Term, pay­able at the usual Feasts, or within ten days after; this Lease was confirmed by the Archbishop (Patron of the Vicarage) and Dean and Chapter of Canterbury.

[Page 245]Some years after Cooper dies, and the Question was, Whether Buck (the succeeding Vicar) could avoid this Lease?

The first Point was, Whether the Lease became void within 80 Days after the death of Cooper, by the Statute of Non-residence? 13 Eliz. 20. And as to that all the Justices were of Opinion, that Death would not make such a Non-residence as should avoid the Lease; for the Intention of the Statute was, to oblige the Incumbents to Resi­dence.

First, By imposing of the Forfeiture of a years Value of their Benefice, if they did not Reside.

Secondly, By making their Leases void; which tho' prima facie seemed to be to their advantage, yet was not so in the consequence; for none would be induced to Farm their Lands, because it was in their power to defeat their Leases by Non residence.

Again, 'Tis plain the Statute meant a Wilful Absence, because it says, The party so offending the Statute of the 13th of Eliz. that allows Leases of Houses, &c. in Market Towns for 40 years, would be of no effect if Death should be interpreted a Non-residence, and the Confirmation of Patron and Ordinary would be to no purpose. Butler and Goodale's Case in the 6 Co. 21. b. is, that where the Incumbent is absent upon an Inhibition, or for the sake of his Health, he is not within the Penalty of that Law. There is only one single Authority against this, (viz.) Mott and Hale's Case in the 1 Cro. 123. which Twisden doubted, whether it were so adjudged, because my Lord Coke mentions it no where, supposing so Notable a Point would not have escaped his Obser­vation, especially in a Case wherein he was Counsel. But Hale said, It was Adjudged by the Opinion of three Judges; tho' in Moor 'tis said, the Court was Divided; but it was a hard Opinion: And in the 38th of Eliz. B.R. Moor 609. the very Point was adjudged contrary.

The second Point, Whether it were void, because the Rent was reserved at the usual Feasts, or within Ten days after? For it was urged, that the Term ending at Michaelmas, would be expired before the last Payment: And for the other payments, 'tis for the Successor's advantage, because the Predecessor may dye within the Ten days. But the Court were clear of Opinion, in regard the Reservation was during the Term, that there should be no Ten days given to the Lessee for the last payment, according to Barwicke and Foster's Case in the 2 Cro. 227, 233.

The third point, Whether this were a Lease in Reversion, and so not warranted by the Statute of the 14 of Elizabeth? And all the Court held that it was. This Statute repeats that of the 13th of Eliz. as to Houses in Market Towns, (which Liberty was given, as Twisden said, to render those places more populous;) but excepts Leases in Reversion, which this is, being to commence [Page 246] at a Day to come, where a Power is annexed to an Estate for Life to make Leases in possession. A man cannot make a Lease to commence in futuro. In the 6 Co. Fitz William's Case, 4 E. 3. tit. Waste 18. the Lessor made a Lease to commence after the death of the Tenant for Life, and notwithstanding maintained an Action of Waste: And Co. Lit. citing that Case, distinguishes between a Grant of the Reversion, and a Lease in Reversion, as that Case was. In Plowden's Commentaries, Tracy's Case, A Lease made to commence at a Day to come, is given as a most proper Instance of a Lease in Reversion. In the 1 Cro. 546. Hunt and Singleton's Case, a Lease of an House for 40 years (there being 10 years unexpired of a former Lease) by the Dean and Chapter of St. Pauls, was held not warranted by the 14th of Eliz. The like was Resolved in C. B. 14 Car. 2. in the Case of Wyn and Wild, of a Lease of the Dean and Chapter of Westminster, and there the Court denied the Opinion in Tomson and Trafford's Case, Poph. 9. And two of the Judges seemed to be of Opinion, (and Twisden strongly), that if the Lease in the Case at Bar had been made to commence presently, it yet would have been void, there being another Lease in being; so that for so many years as were to come of the former Lease, it would be a Lease in Reversion: And that the 18th of Eliz. that permits a concurrent Lease, so that there be not above three years in being, shall not in their Opinion, make any alteration of the 14th of Eliz. but it only extends to the 13th of Eliz. because it recites that, but not the former. And so is the Opinion of Hobart, in the Case of Crane and Taylour 269. and it hath been often held, that it does not extend to the Statute of 1 Eliz. concerning Bishops. But of this Hale doubted, and rather conceived the contrary (viz.) That the Lease had been good, if it had been made to commence presently, there being less than three years to come of the former Lease. And that of the 18 of Eliz. did give a qualification to Leases made upon the 14th, as well as the 13th.

First, Because the 14 of Eliz. is a kind of an Appendix to the 13th of Eliz. and does not repeat it, but sub modo a little enlarging it as to Houses in Market Towns: Wherefore the 18th of Eliz. reciting the 13th, does by consequence recite the 14th also.

Secondly, There is such a Connexion betwixt all the Statutes, concerning Leases of Ecclesiastical persons, that they have been taken into the Construction of one another. The Statute of the 32d of H. 8. is not recited, neither in the 1st or the 13th of Eliz. yet a Lease is not warranted upon those Statutes, unless it hath the Qualifications required by the 32d of H. 8. And this course is usual in the Construction of Statutes made in pari materia.