The Second PART OF Modern Reports, BEING A COLLECTION Of Several SPECIAL CASES Most of them ADJUDGED in the COURT OF Common Pleas, In the 26, 27, 28, 29, & 30th Years of the Reign OF King Charles II. When Sir Fra. North was Chief Justice of the said Court. To which are added, Several select CASES in the Courts of Chancery, Kings-Bench, and Exchequer in the said Years.

Carefully Collected by a Learned Hand.

LONDON, Printed by the Assigns of Rich. and Edw. Atkins Esquires, for Charles Harper at the Flower de Luce over against St. Dunstans Church in Fleetstreet, 1698.

TO THE Right Honourable JOHN Lord SOMERS Baron of Evesham, Lord High Chancellor OF ENGLAND.

My Lord,

WHEN both the Favour and Severity of the Laws were by partial and unusual Me­thods applyed to the Persons, and not to the Cases of the accused; when the Life and Honour of an unfortunate Man depended on the Arbitrary Dictates of some Men in Authority, and when the Sentence pro­nounced was more Criminal than the Offence of which the Party was too easily convicted; then was your Lordship as far from any Advancement to a judicial Office, as your Judgment and Inclinations were from the Approbation of such Proceedings: But no sooner were places of Ho­nour and Profit in the Law made the unsought Rewards of good and learned Men, but your Lordships Merits entituled you to both; whose Moderation and Temper will make your Administration just and easie in that honoura­ble [Page] Court, to which Fortune had no share in your Pro­motion; and whose natural Abilities are so improved by a continued and inflexible Study, that your Knowledge is not alone confined to the municipal Laws of this Na­tion, but is generally extensive to all humane Learning.

What Services may not a Prince expect from the Wis­dom and Vigilancy of such a Counsellor? And what Benefit may not a divided People find by your equal Dispensation of Justice, who (if they can be united in any thing) it must be in the general Satisfaction which all have in your Promotion, because they know those Causes which come before your Lordship will receive a due Hearing and Attention without Passion or Prejudice to Persons; such Emotions being as much beneath the Great­ness of your Lordships Mind, as they are beyond the Duty of Justice, and fit only for such who will neither be guided by the Rules of Equity or Reason; so true is that Saying, Utitur animi motu, qui uti ratione non potest.

The Respect which is due to the Office of Magistrates challengeth an universal Obedience; but that particular Affection and Esteem which we have for their Persons is due only to their Vertues and Merits: And such is that which I have, and all Men (especially those of my Profession) ought to have for your Lordship and the pre­sent Judges in Westminster-Hall, whose Learning and Integrity in judicial Determinations may bring the Laws nearer to Perfection; and whose Examples are the just Commendation of the present, and I hope will be the Imi­tation of succeeding Ages.

I could never understand the right meaning of that Sentence, Boni Judicis est ampliare Jurisdictionem for if that be true, then to what purpose were those Arguments at the Bar of the House of Peers against [Page] some late Judges for retaining Bills in Equity, the sub­ject Matter whereof was only tryable at the Common Law? Such Complaints are now no more, because your Lordship will not only support the Honour and Dignity of that Court, wherein you preside, in the Beauty of Order, but will not enjoyn any other from exercising its proper Ju­risdiction.

Thus will the Credit of the Laws of England be re­vived, and Men will acquiesce under the legal Deter­minations of each Court; very few Writs of Error will be brought for Error in Law, because of the Justice and Stability of the Judgment in that Court wherein it was given; and very few Appeals, because your Lordship knows so well how to temper Equity with Justice, that he must be a very angry Man, who goes away dissatisfied with your Lordships Decree.

But since the Actions of Men in great Places are subject to the various Censures of Mankind, if any pre­judiced Person should revive those Disputes, or quarrel at your Lordships Administration, such Complaints would leave no other Impression upon the Minds of impartial Men than to convince them of the Wrong done to your Lordship, and the Folly of such Misapprehensions.

My Lord, I have prefixed your Lordships Name to this mean Performance, taking this occasion to shew that great Honour and Respect, which I have for your Lord­ship; not that I am so vain to think any thing herein to be worthy of your Lordships Leisure, neither do I think it Manners to beg your Lordships Patronage, because a good Book will protect it self at all times, and a bad one deserves no Protection.

I know few Books are either praised or perused, but what are warranted by the common Repute and Esteem [Page] of the Writer, which must be imputed to the Prejudice and Partiality of Men, and which argues a Diffidence of our natural Parts, as if we did not dare to make a right use of our own Judgments: For this Reason I have concealed my Name, that a Judgment may not be made of the Book by the Repute of the Writer. But I hope your Lordship will not condemn my Ambition, when I say, I am not altogether unknown to your Lordship, who am

Your Lordships Most humble Servant, J. W.

A TABLE OF THE NAMES OF THE CASES.

A.
  • ABbot versus Rugely, 307
  • Abraham versus Cunning­ham, 146
  • Adams versus Adams, 169
  • Addison versus Otway Mil, 233
  • Alford versus Tatnel, 49
  • Arris and Arris versus Stukley, 260
  • After versus Mazeen, 311
  • Astry versus Ballard, 193, 312
  • Atkins versus Bayles, 267
  • Attorny General versus Read Mil, 299
  • ........ versus Turner Mil, 106
  • ....... versus Alston, 247
  • Anonymus, 7, 17, 62, 94, 100, 100, 167, 199, 206, 279, 293, 306, 314, 316, 317
B.
  • BAilies (Joan) Case, 315
  • Ballard versus Oddey, 307
  • Barker versus Keat, 249
  • Barker versus Warren, 270
  • Barker versus Basket, 200
  • Basset versus Salter, 136
  • Beaver versus Lane, 217
  • Bell versus Knight, 182
  • Benson versus Idle, 37
  • Beaumont versus ...... 140
  • Bill versus Nichol, 246
  • Birch versus Wilson, 274
  • Birch versus Lingen, 316
  • Blackbourn versus Conset, 304
  • Bridges versus Beddingfield, 27
  • Brittam versus Charnock, 286
  • Brook versus Turner Mil', 170
  • [Page]Brown versus Johnson, 145
  • Brown versus Waite, 130
C.
  • CAlthrop versus Phillips, 217
  • Calthrop versus Heyton, 54
  • Chapter of Southwel versus the Bi­shop of Lincoln, 56
  • Cockram versus Welby, 212
  • Columbel versus Columbel, 77
  • Cook and others versus Herle, 138
  • Cooper versus Hawkeswel, 58
  • Crosier versus Tomlinson Executor, 71
  • Crossman versus Churchil Mil', 97
  • Crowder versus Goodwin, 58
  • Curtio versus Bourn, 61
  • Curtis versus Davenant, 8
D.
  • DAshwood versus Cooper, 283
  • Dawes versus Sir Paul Pindar, 45
  • Daws versus Harrison, 65
  • Dorchester's (Marquess of) Case, 215
  • Dunning versus Lascomb, 267
  • Duck versus Vincent, 33
E.
  • EDwards versus Roberts, 24
  • Edwards versus Weeks, 259
  • Ellis versus Yarborough, 177
  • Escourt versus Cole, 58
  • Evered versus Hone, 293
F.
  • FOrrest qui tam, &c. versus Wire, 246
  • Frosdick versus Sterling, 269
G.
  • GIlmore versus the Executor of Shooter, 310
  • Godfrey versus Godfrey, 303
  • Goffe versus Elkin, 239
  • Goodwin qui tam, &c. versus Butcher, 67
H.
  • HAll versus Carter, 304
  • Hambleton vers. Scrogs Mil', 296
  • Hammond versus Howel, 218
  • Harding versus Ferne, 177
  • Harman's Case, 176
  • Harris's Case, 101
  • Harwood and Binks versus Hillyard, 268
  • Hayes versus Bickerstaffe, 34
  • Hickman Mil' versus Thorn and others 104
  • Hill versus Thorn, 309
  • Higginson versus Martin, 195
  • Hill versus Pheasant, 54
  • Hocket & Ʋxor versus Stiddolp & Ʋxer, 66
  • Hollis Mil' versus Carre, 86
  • Howard Mil' versus the Queens Trustees, 173
I.
  • JAmes versus Johnson, 143
  • James versus Trollup, 320
  • Ingram versus Tothil, 93
  • Jones's Case, 198
  • Ipsley versus Turk, 193
  • Ironmongers Company versus Nay­lor, 185
K.
  • KEndrick versus Bartland, 253
  • The King versus the Bishop of Rochester, 1
  • The King versus Tourvil, 52
  • The King versus Moor, 128
  • Keen versus Kirby, 32
L.
  • LAne versus Robinson, 102
  • Lee versus Brown, 69
  • Lever versus Hosier, 47
  • Loyd versus Langford, 174
  • Long's Case. 181
M.
  • MARY Magdalen Bermonsey Church, 222
  • Major versus Grigg, 213
  • Mayor and Comminalty of London, versus Gatford, 39
  • Mason versus Stratton, 36
  • Mason versus Caesar, 65
  • Mendyke versus Stint, 271
  • Milward versus Ingram, 43
  • Mires versus Solebay, 242
  • Moor versus Pitt, 287
  • Morris versus Philpot, 108
N.
  • NAyler versus Sharpless, 23
  • Nichols versus Ramsel, 280
  • Norris versus Palmer, 51
  • Norris versus Trist, 78
  • Northumberland's (Countess of) Case, 182
  • Nurse versus Yearworth, 8
O.
  • OSbaston versus Stanhop, 50
  • Osborn versus Wright, 296
  • Otway Mil' versus Holdips, 266
P.
  • PAge versus Tulse & al'. 83
  • Paget versus Vossius, 223
  • Parrington versus Lee, 311
  • Peck versus Hill, 136
  • Penrice and Wyn's Case, 306
  • Piggot versus the Earl of Salisbury, 109
  • Plummer versus Whitchot Mil', 119
  • Prince versus Rawson, 51
  • Put versus Roster, 318
Q.
  • QUadring versus Downes & al, 176
R.
  • RAnds Mil' versus Trip, 199
  • Randals Case, 308
  • Read versus Dawson, 139
  • Reder versus Bradley 101
  • Reed versus Hatton, 25
  • Richards versus Sely, 79
  • Rose versus Standen, 294
  • Rozal versus Lampen, 42
S.
  • SAms versus Dangerfield 31
  • Samways versus Eldslly, 73
  • Scoble versus Skelton, 318
  • Searl versus Long, 264
  • Searl versus Bunion, 70
  • Sambrook versus Fettiplace, 283
  • Sharp versus Hubbard, 58
  • [Page]Shaw Mil' versus a Burgess of Colche­ster, 228
  • Shaxton versus Shaxton, 305
  • Shaftsbury (Earl of) versus Lord Dig­by, 98
  • Sherrard versus Smith, 103
  • Simpson versus Ellis, 36
  • Singleton versus Bawtry, 168
  • Smallwood versus Brickhouse, 315
  • Smith versus Tracy, 204
  • Smith versus Shelberry, 33
  • Smith versus Hall, 31
  • Smith versus Feverel, 6
  • Snow & al' versus Wiseman, 60
  • Southcot versus Stowel, 207
  • Spring versus Eve, 240
  • Squib versus Hole, 29
  • Strangford versus Green, 227
  • Staples versus Alden, 309
  • Steed versus Berryer, 313
  • Stephens versus Austin, 185
  • Styleman versus Patrick, 141
  • Steward versus Allen, 264
  • Stoutfield's Case, 77
  • Strangford versus Green, 227
  • Stroud versus Bishop of Bath and Wells, 183
  • Stubbins versus Bird & al', 63
  • Suffeild versus Baskervil, 36
T.
  • TAyler versus Biddal 289
  • Taylor versus Baker, 214
  • Thorp versus Fowle, 58
  • Threadneedle versus Lynam, 57
  • Tissard versus Warcup, 279
  • Townsend (Lord) versus Hughs, 150
  • Trevil versus Ingram, 281
  • Trotter versus Blake, 229
  • Turner (Sir William's) Case, 144
V.
  • VAughan versus Wood, 56
W.
  • WAkeman versus Blackwel, 70
  • Walwyn versus Awberry, 254
  • Warden of the Fleet's Case, 221
  • Waterfield versus the Bishop of Chi­chester, 118
  • Week's Case, 278
  • Wells versus Wright, 285
  • Whitrong versus Blaney, 10
  • Wilcox versus the Servants of Sir Ful­ler Skipwith, 4
  • Wilkinson versus Loyd, Mil', 82
  • Williamson versus Hancock, 14
  • Wilson versus Drake, 20
  • Wilson versus Ducket, 61
  • Windam (Lady's) Case, 294
  • Wine versus Rider, & al', 67
  • Woodward versus Aston, 95
  • Wright versus Bull, 304

ERRATA.

PAge 6. Line 31. for Defendant read Plaintiff, p. 58. l. 15. after out r. of, p. 79. l. 19. after according read to, p. 143. l. 17. for and r. one, p. 145. l. 25. for by r. in, p. 180. l. 40. for Plaintiff r. Sheriff, p. 200. l. 22. for Defendant r. the Plaintiff, and for the word Replication r. Plea.

DE Termino Sancti Hill. Annis 26 & 27 Car. II. in Communi Banco.
Coram Francisco North Milite Capital Justic'. Hugone Wyndham Milite, Justic'. Roberto Atkins Milite, & Justic'. Willielmo Ellis Milite, Justic'.

The King versus the Bishop of Rochester and Sir Fran­cis Clark.

IN a Quare Impedit a special Verdict was found,Quare Im­pedit. Mod. Rep. 195. Grant of the King, where the first Clause is certain, and a mistake in another, yet the Grant is good. where­in the Case was thus:

The Mannor of Laburn, to which the Advowson of the Church of Laburn was appendant, did by the dissolution of Monasteries Anno 31 H. 8. c. 13. 31 H. 8. come to the King, who granted the said Mannor to the Archbishop of Canterbury (excepting the Advowson) and afterwards the said Archbishop re­grants the same to King H. 8. and the Advowson of the Church of Laburn aforesaid; and then King H. 8. grants the said Mannor of Laburn & Advocation̄ Ecclesiae de Laburn dicto Archiepiscopo, (having named him before) dudum spectan̄, and which was regrant­ed to the said King by the said Archbishop, and lately belonging to the Abbot of G. &c. adeo plene as the said Archbishop or Abbot had it, or as it was in our hands by any ways or means how­soever.

And whether the Advowson passed by this last Grant was the Question.

Three Iustices (absente North) gave Iudgment for the De­fendant, that the Advowson did pass by this Grant.

Iustice Ellis in his Argument said, That it was plain that when the Mannor came to H. 8. the Advowson was appendant, but when it was granted to the Archbishop, and the Advowson excepted, it then became in gross, and therefore could never afterward be appendant:James and Johnson's Case Postea. As an Aere once disunited from the Mannor can never after be part of that Mannor, Liford's Case, 7 Co.

And 'tis as plain, that before the Statute de Praerogativa Re­gis cap. 15. That in the ease of the King, by the Grant of a Man­nor, the Advowson though not named passed, much more if it be named in any part of the Deéd, as if it be in the Habendum though not in the Premisses; but that must be intended of an Advowson appendant.10 Co. 63.

And though Advowsons are excepted by that Statute, yet in case of Restitution an Advowson will pass by the Words Adeo plene & integre, though not named.

In this Case there are general Words and the same as in10 Co. 63. Postea. Attur­ney General against Tur­ner. Whistler's Case; yet this differs from that, for here 'tis granted adeo plene, as the Abbot had it; by those Words it doth not pass, for then it was appendant, but now it is in gross; and if the King intended to pass an Advowson as appendant when 'tis in gross, the Grant is void, Hob. 303.

In Whistler's Case there are the Words Adeo plene, as in this, and the Advowson was appendant still, but yet there are gene­ral Words here that will pass it: Adeo plene as the Archbishop had it, will not serve, because he never had it; neither will Adeo plene as the Abbot had it pass this Advowson, because he had it in gross; but Adeo plene as the King had it by any ways or means whatsoever, those general Words are sufficient to pass it.

The King grants the Mannor and the Advowson of the Church of Laburn, which is certain and by particular Name, part of what follows (as spectan' to the Archbishop) is false, for it ne­ver belonged to him because it was excepted in the Grant of the Mannor to him, but the first discription being full and certain the falsity of the other shall not avoid the Grant, especially when the King is not deceived in his Title nor in the Value, and when there is a certainty of the thing granted.

Some false suggestions may make his Grant void, as if he grant the Mannor of D. reciting that it came to him by Attain­der, when it came by Purchase, Hob. 229.

Lane 11.But if the mis-recital concerns not the Kings Title or Profit, it doth not vitiate the Grant, 10 H. 2. 4. Sir John Lestrange's Case, where the King by Office found had the Wardship of a Mannor, and makes a Grant thereof reciting Quod quidem Manerium in [Page 3] manus nostras seisit̄ &c. which was not true, yet the Grant was held good, because it was only to make that certain which was cer­tain enough before by a particular description. So in Legat's Case, 10 Co. 113. wherein is cited the Case of the Earl of Rutland and Markham, to whom the Queén had granted the Office of Parker­ship, &c. quod quidem Officium the late Earl of Rutland habuit, when in truth the Earl never had it before, yet the Grant was held good.

So also if he grants for and in consideration of Service done, or Mony paid, if false, it avoids not the Grant, because such Con­siderations (when past) are not material whether they are true or false, Cro. Jac. 34.

If the King let the Mannor of D. of the value of 4 l. per an­num, if it be more it is ill, but if he let it by a particular Name, and then adds, Quod quidem Manerium is of such a value 'tis good, because the2 Cro. 34. Quod quidem is but the addition of another certainty; so here the Advowson is granted by special and ex­press Name, but the Clause that follows, Dudum spectan̄ to the Archbishop, implies a mistake; and had there beén no more in the Case this falsity would never have avoided the Grant.

But when the King had enumerated several ways by which he thought he might be intitled, at last as a proof that he was re­solved to pass it, he adds these Words, viz. as it is in our hands by any way or means whatsoever.

Atkins Iustice of the same Opinion: Where the thing is not granted by an express Name, there, if a falsity is in the descrip­tion of that thing, the Grant is void even in the case of a com­mon person, as if he grant Lands lately let to D. in such a Pa­rish, and the Lands were not let to D. were also in another Parish, the Grant is void, because the Lands are not particularly named, Anders. 148. Heywood's Case.

A fortiori in the Case of the King, as if he grant omnia illa tenementa situata in Wells, when in truth the Lands did not lie there, for this reason the Grant was void, because it was general, and yet restrained to a particular Town, and the Pronoun (illa) goes through the whole sentence.

But if a thing is granted by an express Name, though there is a Falsity in the description, yet in the Case of a common per­son 'tis good.

As when the Subchantor and Vicars Choral of Lichfield made a Grant to Humfrey Peto of 78 Acres of Glebe, and of their Tythes Predial and Personal, and also of the Tythe of the Glebe, All which late were in the occupation of Margaret Peto, [Page 4] which was not true, yet the Grant was adjudged good; for the Words All which are not Words of restriction unless when the Clause is general and the Sentence entire, but not when it is distinct, Cro. Car. 548.

But in the Case of the King, if there is a falsity by which the King hath a prejudice, and a Falsity upon the suggestion of the Party, it will make the Grant void, but every Falsity will not avoid his Grant if it be not to his prejudice.

But let the Falsity in this Case be what it will the Adeo plene as it is in our hands helps it; and though it hath been ob­jected, that these Words will not help the Grant, because nothing new is granted, that being done before; 'tis true there is nothing new granted, but that which was before was not well granted till this Clause came which supplies and amends the Falsity; for now 'tis apparent that the King intended to pass the Ad­vowson as well as the Mannor, and therefore at last grants it, be his Title what it will.

In all Cases where the Kings Grant is void because of any mistake in his Title, 'tis to be intended the King would not make the Grant unless the Title were so as 'tis recited, but here 'tis apparent the King resolved to grant it.

Judgment. Wyndham Iustice agreéd, and Iudgment was given accordingly.

Wilcox versus the Servant of Sir Fuller Skipwith.

Replevin. Justification for an Herriot.IN Replevin the Defendant justifies the taking of the Cattle for a Herriot which he alledges to be due upon every Aliena­tion without notice.

The Plaintiff denies the Herriot to be due upon Alienation. And thereupon Issue is joyned.

The Special Verdict finds the Tenure to be by Fealty and the Rent of 3 s. 1 d. (though the Defendant in his Avowry had alledged the Rent to be 12 s. 4 d. and the Plaintiff in his Barr to the Avowry had confessed it to be so) Suit of Court and an Herriot, which was payable upon every Alienation with or with­out notice.

And whether upon this Special Verdict Iudgment should be given for the Plaintiff or the Avowant was the doubt.

Ex parte Def.Vpon the point of Pleading Serjeant Jones for the Defen­dant said it had béen objected that the Avowry was ill, for ut Bal­livus, &c. bene cogn̄ captionem in praedicto loco, &c. but doth not say tempore quo, &c. for a Herriot (tempore quo, &c. be­ing [Page 5] left out) and so doth not say a Herriot was due at the time of the taking of the Goods.

But he answered, That that was usual and common, and of that Opinion were all the Iustices, and so it was held good.

It was farther objected, That here is a variance between the Avowry and the finding in the Special Verdict; The Avowant says that the Rent was 12 s. and 4 d. and the Iury find that it was but 3 s. and 1 d. He also saith, that the Herriot was due upon every Alienation without notice, and they find it due with or with­out notice.

But to that he said, the Iury have doubted only of the last Point, for the Avowry was not for Rent but for the Herriot, so the substance is whether he had good cause to distrein for the Herriot or not.Postea.

And as to that, the Substance is sufficiently found, like the Case in Dyer 115. Debt upon Bond for performance of Covenants, and not to do waste, the Breach assigned was that the Defen­dant felled twenty Oakes, who pleads Non succidit viginti quer­cus praed' nec earum aliquam, the Iury find he cut down ten, yet the Plaintiff recovered; for though the intire Allegation of the Breach was not found, because ten did not prove the issue of twen­ty literally, yet the Substance is found, which is sufficient to make the Bond forfeited.

So in Trespas, where the Plaintiff makes a Title under a Lease which commenced on Lady-day, Habendum à Festo, &c. and the Issue was non demisit modo & forma, the Iury found the Lease to be made upon Lady-day, Habendum à confectione, and so it commenced upon Lady-day, and not à Festo, &c. which must be the day after the Feast, yet 'twas adjudged for the Plaintiff, be­cause theMoor 868. Yelv. 148. Substance was whether or no the Plaintiff had a Lease to intitle himself to commence an Action, Hob. 27.

But in Ejectment or Replevin such a Declaration had been naught, because therein you are to recover the Term, and therefore the Title must be truly set out, and in Replevin you are to have a Retorn̄ habend', but in Trespas 'tis only by way of excuse. Sed quaere.

A second Reason is because both Plaintiff and Defendant in pleading have agréed the matter in this particular, for both say the Rent was 12 s. and 4 d.

'Tis a Rule in Law, That what the Parties have agreed in pleading shall be admitted though, the Iury find otherwise, 2 Ass. pl. 17. 18 E. 3. 13. b. 2 Co. 4. Goddard's Case. Iurors are not bound by Estoppel ad dicend' veritatem, for they are sworn so to do unless the Estoppel be within the same Record, but here [Page 6] that which is confessed cannot be matter of Issue not being Lis contestata.

It has beén objected, that in 33 H. 6. 4. b. the Plaintiff brought Debt for 20 l. the Iury found the Defendant only owed 10 l. and the Plaintiff could never recover.

But that must be intended of a Debt due upon Contract, and there the least variance will be fatal, 38 H. 6. 1.

As to the second variance 'tis not material, for 'tis not true as the Avowant hath said, for if the matter in issue be found, the finding over is but surplusage; both the Verdict and the Avowry agree that the Defendant may take a Distress in case of Alienation without notice: And so he prayed Iudgment for the Defendant.

Judgment for the Defen­dant.The Court were all of Opinion that Iudgment should be given for the Defendant; for what is agréed in pleading, though the Iury find contrary, the Court is not to regard, and here the sub­stance of the Issue as to the second Point is well found for the De­fendant.

Iudge Atkins told Serjeant Wilmot, who argued for the Plaintiff, that he had cited many Cases which came not up to the matter, and so did magno conatu nugas agere, for which reason I have not reported his Argument.

Smith versus Feverel.

Case for sur­charging a Common.THE Plaintiff brought an Action on the Case against the Defendant, setting forth that he had right of Common in A. and that the Defendant put in his Cattel, viz. Horses, Cows, Hogs, &c. ita quod Communiam in tam amplo modo habere non potuit.

The Defendant pleads a Licence from the Lord of the Soil to put in Averia sua, which was agreéd to comprehend Hogs as well as other Cattle in the most general sense.

The Defendant demurs, and after Argument the Court were all of opinion that Iudgment should be given for the Plaintiff, because the Defendant in his Plea hath not alledged that there was sufficient Common left for the Commoners, for the Lord cannot let out to pasture so much as not to leave sufficient for the Commoners.

And though it was objected, that the Plaintiff might have re­plyed specially and shewn there was not enough, yet it was agreed by the Court that in this Case he need not, because his De­claration [Page 7] to that purpose was full enough, and that being the very Gist of the Action the Defendant should have pleaded it.

It was held indéed that in an Action upon the Case by the Com­moner against the Lord, he must particularly shew the Surcharge; but if the Action be brought against a Stranger such a shewing as is here is sufficient.

North Chief Iustice said, and it was admitted, that the Li­cence being general ad ponend' averia it should be intended only of Commonable Cattel and not of Hogs; Sed contra, if the Li­cence had been for a particular time.

Anonymus.

A Man devises Land to A. his Heir at Law,Devise. and devises other Lands to B. in Fee and saith, If A. molest B. by Suit or otherwise he shall lose what is devised to him, and it shall go to B. The Devisor dies, A. enters into the Lands devised to B. and claims it, the Court were of Opinion that this Entry and Claim is a sufficient breach to entitle B. to the Land of A.

It was also agreed that these words, If A. molest B. by Suit, &c. make a Limitation and not a Condition, Pl. Com. 420. the Devise being to the Heir at Law; for if it were a Condition, it descends to him and so 'tis void, because he cannot enter for the breach, 3 Co. 22. Cro. Eliz. 204. Wellock and Hamonds Case. Paying in the case of the eldest Son makes a Limitation, Owen 112.

So in the Case of Williams and Fry in an Ejectione firmae in B. R. lately for Newport-House. A. deviseth to his Grand-daughter, Provided and upon Condition that she marry with the consent of the Earl of Manchester and her Grandmother, 'tis a Li­mitation.

2dly, It was agreed, That an Entry and Claim in this Case was a sufficient molestation, for when the Heir enters and claims generally it shall be intended as Heir, and the words, that he shall not molest by Suit or otherwise, are to be intended occasione prae­missorum.

3dly, There is no néed of Entry to avoid an Estate in case of a Limitation, because thereby the Estate is determined without Entry or Claim, and the Law casts it upon the Party to whom it is limited and in whom it vests till he disagrées to it.

A. devises Land to B. and his Heirs and dies, 'tis in the De­visee immediately, but indeed till Entry he cannot bring a posses­sory Action, as Trespass, &c. Pl. Com. 412, 413. 10 Co. 40. b. [Page 8] where a Possession vests without Entry a Reversion will vest without Claim.Nota.

Curtis versus Davenant.

Prohibition A Bishop can­not appoint Commissio­ners to tax the Parish for building or repairing a Church.IN a Prohibition the Question was, whether if a Church be out of repair, or being so much out of order that it must be re-edified whether the Bishop of the Diocess may direct a Commis­sion to impower Commissioners to tax and rate every Parishio­ner for the re-edifying thereof: The Court did unanimously agree such Commissions were against Law, and therefore granted a Prohibition to the Spiritual Court to stop a Suit there com­menced against some of the Parishioners of White-Chappel for not paying the Tax according to their proportions.

It was agréed that the Spiritual Court hath power to compel the Parish to repair the Church by their Ecclesiastical Censures, but they cannot appoint what Sums are to be paid for that purpose, because the Churchwardens by the consent of the Parish are to settle that.

As if a Bridge be out of repair, the Iustices of Peace can­not set Rates upon the persons that are to repair it, but they must consent to it themselves.

These Parishioners here who contribute to the charge of re­pairing the Church may be spared, but as for those who are obstinate and refuse to do it, the Spiritual Court may proceed to Excom­munication against them; but there may be a Libel to pay the Rates set by the Church-wardens.

Nurse versus Yearworth in Cancellaria.

Bill in Cancel­laria for the Assignment of a Term. RIchard Yearworth being seised of Lands in Fee makes a Lease to the Defendant Christopher Yearworth for 99 years to such use as by his last Will he should direct.

Afterward he makes his Will in writing (having then no Issue but his Wife grossement enseint) and thereby devises the same Land to the Heirs of his Body on the Body of his Wife begotten, and for want of such Issue to the said Christopher the Defendant and his Heirs.

Richard dies and about a month after a Son is born, the Son by vertue of this Devise enjoys the Land, but when he attains his full age of one and twenty years, he suffers a Common Re­covery, and afterwards devises the Land to the Complainant Nurse, and dies.

The Complainant exhibits a Bill against the Defendant to have the Lease for 99 years assigned to him, and whether he should have it assigned or not, was the Question.

1. It was pretended that an Estate in Fée being limited by the Will to Christopher, who was Lessee for 99 years, the Term is thereby drowned.

2. It was objected, that the Devise by Richard to the Infant in ventre la mere was void, and then the Complainant, who claimed by a Devise from the Posthumus, could have no Title, but that the Defendant to whom an Estate was limited by the Will of Richard in Remainder should take presently.

But notwithstanding what was objected the Lord Keeper Finch decréed that the Lease which was in Trust, should be assigned to the Complainant Nurse.

He said that at the Common Law without all question a Devise to an Infant in ventre sa mere of Lands devisable by Custom was good, so that the doubt arises upon the Statute of H. 8.Roll. Abr. tit. Devise 609. lit. H. pl. 2. Godb. 385. 11 H 6. 13. dubitatur. which enacts, That it shall be lawful for a Man by his Will in writing to devise his Lands to any person or persons, for in this Case the Devisée not being in rerum naturâ, in strictness of spéech is no person, and therefore it hath beén taken that such a Devise is void, Moor's Rep. and 'tis left as a Quaere in the Lord Dyer 304.

But in two Cases in the Common Pleas, one in the time when the Lord Chief Iustice Hale was Iudge there, the other in the Lord Chief Iustice Bridgman's time, it hath been resolved that if there were sufficient and apt words to describe the Infant, though in ventre sa mere, the Devise might be good.

But in the King's Bench the Iudges since have been divided upon this Point, that as the Law stands now adjudged, this Devise in our Case seems not to be good: But should the Case come now in question, he said he was not sure that the Law would be so adjudged; for 'tis hard to disinherit an Heir for want of apt Words to describe him; and 'tis all the rea­son in the World, that a Mans intent, lying in extremis, when most commonly he is destitute of Council, should be favoured.

Whitrong versus Blaney.

Process in­to Wales.THIS Term the Court delivered their Opinions in this Case, North Chief Iustice, who had heard no Arguments herein, being absent.

The Case was this: The Plaintiff upon a Iudgment in this Court sues out a Scire facias against the Heir and the Ter­tenants, which was directed to a Sheriff of Wales; the Defen­dant is returned Tertenant, but he comes in and pleads Non tenure generally, and traverses the Return; the Plaintiff de­murs.

Two Points were spoke to in the Case.

1. Whether the Defendant can traverse the Sheriffs Return? And all the three Iustices agreéd that he cannot.

2. Whether a Scir̄ Fac̄, Ca. Sa. Fi. Fa. &c. would lie into Wales on a Iudgment here at Westminster, And they agréed it would well lie.

An Indict­ment may be removed. 2 Cro. 484. Ellis Iustice agreéd, If Iudgment be given in Wales it could not be removed into the Chancery by Certiorari, and sent hither by Mittimus, and then Execution taken out upon that Iudgment here, because such Iudgments are to be executed in their proper Iurisdictions, and such was the Resolution of the Iustices and Barons, Cro. Car. 34.

But on a Iudgment obtained here Execution may go into Wales. No Execution can go into the Isle of Man, because 'tis no part of England, but Wales is united to England by the Statute of 27 H. 8. c. 26. And therefore in Bedo and Piper's Case, 2 Bulstr. 156. it was held that such aHet. 20. 2 Cro. 484. The Opinion of Dodderidge. Roll. 395. 2 Sand. 194. Twisden denied it. Writ of Execution goes legally into Wales.

He said he had a Report of a Case in 11 Car. 2. where a Motion was made to quash an Elegit into Wales; but it was denied, for the Court agréed the Writ well issued.

Some have made a difference between the King's Bench and the Common Pleas, as if an Execution might go into Wales upon a Iudgment obtained in the King's Bench, but aliter if in the Common-Pleas.

But the Law is the same in both Courts, Mich. 1653. betwéen Wyn and Griffith this very Case came in question, and there it was held that Execution goes into Wales as well as into any part of England upon a Iudgment in the Courts of Westmin­ster.

In 2 Bulstr. 54. Hall versus Rotheram it was held that a Ca. sa. shall go into Wales against the Bail upon a Iudgment recovered in the Kings-Bench here against the Principal.

Of the same Opinion was Iustice Atkins, and that the Defen­dant cannot averr against the Sheriffs Return, nor a Bishops Certificate; and the true reason is given by my Lord Coke in 2 Inst. 452. for the Sheriff is but an Officer and hath no day in Court to justifie his Return.

In special Cases Exception may be made to the Sheriffs Re­turn; but this is by reason of the special provision that is made for the doing of it by the Statute of W. 2. cap. 39. as in case too small Issues be returned, or that the Sheriff return a Res­cous; the Party in his Averment must alledge of what value the Issues are.

2dly. That notwithstanding the common saying Breve Domini Regis non currit in Walliam, yet a Fi. Fa. Ca. Sa. or any Execution whatsoever may issue into Wales upon a Iudgment obtained here: And to prove this he considered,

  • 1. How Wales formerly stood in relation to England.
  • 2. How it stood before it was united by the Statute of H. 8.
  • 3. How it now stands since the Vnion.

1. And as to the first of these, England and Wales were once but one Nation, they used the same Language, Laws and Reli­gion, and so continued till the time of the Roman Conquest, be­fore which they were both comprehended under one name, viz. The Isle of Great Britain.

But when the Romans came, those Britains, who would not sub­mit to their yoak, betook themselves to such places where they thought themselves most secure, which were the Mountains in Wales, and from whence they came again, soon after the Ro­mans were drove away by their dissentions here, and then these Britains enjoyed their ancient Rights, as before.

After this came the Saxons and gave them another disturbance, and then the Kingdom was divided into an Heptarchy; and then also, and not till then, began the Welsh to be distinguished from the English; but yet at that time they had great Possessions in England, viz. Gloucester, part of Worcester, Hereford, Shrewsbury, which they kept till King Offa drove them out of the plaine Countries, and made them fly for shelter into those Mountainous parts in Wales, where they now continue, Cambden 15. And 'tis observable that though Wales had Kings and Princes, yet the King of England had Superiority over them, for to him they were Homagers, Camb­den [Page 12] 67. The Word Princeps implying a Subordinate Dignity, Sel­den's Titles of Honor 593.

2dly. During the time of the Separation Wales had distinct Laws and Customs from those in England, whence that saying took its effect, viz. Breve Domini Regis non currit in Walliam; yet the Parliament of England before that time made Laws to bind Wales; As the Act of 25 Edw. 1. for confirmation of the old great Charter of the Liberties of England and of the Forests, which enacts, That certain Duties shall be paid for every Sack of Wool, &c. exported out of Wales, 2 Inst. 531.

So the Statute 3 Edw. 1. cap. 17. which gives remedy if a Distress be taken and detained in a Castle, and upon deliverance demanded by the Sheriff, if the Lord of the Castle should refuse, he might raise the Posse Comitatus, and beat down the Castle; and if such detainer or refusal be in the Marches of Wales, the King, as the Statute saith, is Soveraign Lord of all, and shall do right upon complaint; and the Conquest was not made till 9 E. 1. so that at that time likewise though Wales had Princes of its own,Vaugh. 400. yet the Kings of England were Sovereigns to those Princes; and though they had Laws of their own, yet were they bound by those that were made here; and though their Princes had ordinary remedial Writs, yet in Cases extraordinary the Kings Writs here run into Wales; and it was not for want of power, but because there was no need, for that it went so sel­dom; and when the Kings Writ did issue it was necessary to direct it to the Sheriff of an English County, for Wales was not then divided into Shires; but afterwards by the Act called Sta­tutum Walliae 12 Edw. 1. 2 Inst. 195. 4 Inst. 239. it was divided into six Counties, and then again by the Act of 27 H. 8. cap. 26. it was divided into the other six Counties.

But during this time there were frequent Hostilities between England and Wales, until by the Conquest in Edw. 1. time they were united.

'Tis pretended that H. 3. Father to Edw. 1. was the Con­queror, and 'tis probable something considerable might be done in his time; yet the absolute Conquest of the whole Dominion was made by Edw. 1. in whose time the aforesaid Statutum Wal­liae was made,Vaugh. 414, 415. and after that the Statute of 27 H. 8. to com­pleat the Vnion, the end of which is declared to bring the Sub­jects of both to an entire Vnity; and that it may be done with effect, 'tis enacted, That the Laws of England be executed there; [...] Bulst. 54. for which reason it is held in 5 Co. Rep. Vaughan's Case, fol. 49. that the Statutes of Jeofails do extend to Wales; and [Page 13] in 2 Bulstr. 156. This was a Resolution upon no De­bate. the Sheriff of Radnor upon a Scire Fac̄ directed to him, returned Breve Domini Regis non currit, &c. and was amerced 10 l. for his false Return, Vide 19 H 6. 20. Fitzherb. Trial pl. 40. tit. Jurisdiction, 13 E. 3. 23, 24, 34. idem, Brief 621. & Assize 382.

It was objected, That by express provision in 1 E. 6. cap. 10. Exigent and Proclamations shall be awarded out of the Courts of Westminster into Wales, which if they might before, this Law was then needless.

'Tis true, the Opinion of the Parliament seems to be, that had it not beén for this particular provision, such Proclamations might not have issued; for by 6 H. 8. cap. 4. Vaugh. 414. such Proclamations went but to the next County, but they do not declare so, and perhaps they might ground themselves upon that vulgar Error, Breve Domini Regis non currit in Walliam, which is not true un­less the Clause be limited to original Writs only.

Objection. That the Statute of 5 El. cap. 23. which enacts, that the Excommunicato Capiendo shall be returned in the Kings-Bench, and takes notice that this Writ is not returnable into that Court from Wales, and therefore orders that the Significa­vit shall be sent by Mittimus out of the Chancery to the Chief Iustice there, and gives them power to make Process to inferior Officers returnable before them at their Sessions for the due Exe­cution of this Writ, all which had beén in vain, if the Capias might go into Wales before the making this Act.

Answ. But that is an original Writ, and so comes not up to this Case.

Wyndham Iustice agreed in omnibus, and said that the Sta­tute of 1 Ed. 6. was very needful; for if a Man should be out­lawed, if the Process should be sent to the Sheriff of the next adjoining County in England, he could not have any notice that he was outlawed, and so could not tell when oulawed or at whose Suit.

Vaughan late Lord Chief Iustice held strongly,Vaugh. 395. 2 Saund. 194. that no Execu­cution would go into Wales when this Case was argued before him; and of the same Opinion was Iustice Twisden.

Williamson versus Hancock.

Collateral Warranty. Mod. Rep. 192. A Special Verdict was found in an Ejectment, where the Case was:

Richard Lock the Father was Tenant for Life, with Remain­der in Tail to Richard his Son, Remainder to the right Heirs of the Father, who levies a Fine with Warranty to the use of Susan and Hannah Prinn in Feé; they by Bargain and Sale convey their Estate to the Defendant: The Son in his Fathers life time, before the Warranty attached, comes of full age; the Father dies; The Question was whether the Sons Entry was barred by this collateral Warranty thus discended?

And the thrée Iustices, absente North Chief Iustice, were clear of Opinion, that the collateral Waranty was a barr to the Son, and so Iudgment was given for the Defendant.

Ellis Iustice held that his Entry is taken away; for in every Warranty two things are implied, a Voucher and Rebutter; he that comes in by Voucher calleth the person into Court, who is bound in the Warranty to defend his Right or yield him other Land in recompence, and must come in by Privity; but if a Man have the Estate, though he comes in the Post he may rebut, that is, he may repel the Action of the Heir by the Warranty of his Ancestor without shewing how the Estate came to him, Fitzh. Nat. Br. 135.

In a Formedon in the Discender to say the Ancestor enfeoffed J.S. with Warranty without shewing how J. S. came by his Estate, is good.

Object. It was objected by Serjeant Maynard, that no person can take advantage of a Warranty, who comes in by way of use, as in this Case.

Answ. But 'tis expresly resolved otherwise in Lincoln Colledge Case, 3 Co. 62. b. and the Prinns in this Case came in by Limita­tion and Act of the Party, and the Defendant, who hath the Reversion likewise by Limitation of Vse, though he be in the Post, shall take benefit of the Warranty as Assignee within the Statute of 32 H. 8. Mod. Rep. 181. c. 34. and so it was resolved in Fowl and Dobles Case in this Court, that he who comes in by way of use may rebut; and Iustice Jones in his Report fol. 199. affirms the fourth resolution in Lincoln Colledge Case to be Law.

It was formerly objected by the Lord Chief Iustice Vaughan, that this Warranty goes only to the Heirs, not to the Assigns, and here the Estate was conveyed by the two Prinns before the Warranty attached.

Answ. But when the Estate passeth, the Warranty and Cove­nant followeth, and the Assignée shall have the benefit thereof though not named, and so is the Authority of 38 E. 3. 26. if a Warranty be made to a Man and his Heirs, the Assigneé though not named shall Rebutt, but he cannot Vouch.

So if A. enfeoff B. with Warranty, and B. enfeoff C. without Déed, C. shall vouch A. as Assigneé of the Land of B. for the Warranty cannot be assigned.

In this Case, though the Warranty did not attach before the Estate in the Land was transferred, yet if it attach afterwards 'tis well enough, and he who hath the Possession shall Rebutt the Demandant without shewing how he came by the Possession.

If a Warranty be to one and his Heirs without the word Assigns, the Assignée indeéd cannot Vouch, but he may1 Inst. 265. a 384. Rebutt; for Rebutter is so incident to a Warranty that a Condition not to Rebutt is void in Law: But 'tis otherwise of a Condition not to Vouch, for in such case you may Rebutt.

'Tis true, it hath béen an Opinion that he who claimeth above the Warranty, if it be not attached, cannot take benefit of it by way of Voucher or Rebbutter; as if Tenant in Dower maketh a Feoffment to a Villain with Warranty, and the Lord entreth upon him before the descent of the Warranty, the Villain can never take advantage of this Warranty by way of Rebutter, because the Lords Title is paramount the Warranty, and he cometh not under his Estate to whom the Warranty was made.

If Land be given to two Brothers in Feé, with Warranty to the eldest and his Heirs, the eldest dies without Issue, the Sur­vivor shall not take benefit by this Warranty for the reason aforesaid.

But in the Case at Barr the Warranty being collateral and annexed to the Land, goeth with the Estate, and whilst that continues the Party may Vouch or Rebutt; so here the De­fendant though he be only Tenant at Will, for the Estate is in the Bargainors, and their Heirs (there being no Execu­cution of it either by Livery or Enrolment) yet he may Re­butt.

Iustice Atkins was of the same Opinion, that by this collate­ral Warranty the Entry of the Lessor of the Plaintiff was taken away, for 'tis the nature of a collateral Warranty to be a Barr; aJones Rep. 199, 200. 1 Inst. 366, 385. 25 H. 6. 63. Bro. Gar. 4. Right is bound by it; it extinguishes a Right, 'tis annexed to the Land and runs with it.

If then a collateral Warranty be of this nature, 'tis against all reason, that he who is thus bound should make any Title to the Land; but 'tis very reasonable that he who comes in quasi by that Estate should defend his Title.

The Opinions of Iustice Jones and Iustice Crook in the Case ofCro. Car. 368. Spirt and Bence has occasioned this doubt: The Case was shortly thus: Cann being seised in Fée had thrée Sons, Tho­mas, Francis and Henry and devised Lands to the two eldest in Tail, and to Henry the Meadow called Warhay (which was the Land in question) but doth not limit what Estate he should have in it; then he adds these Words, viz. Also I will that he shall enjoy all Bargains I had of Webb to him and his Heirs, and for want of Heirs of his Notwith­standing the word Body he had but an E­state for Life in Warhay, for that word ex­tends to no other than Webbs Bar­gains. Body, to his Son Francis, and that Mar­garet should have it for Life. Cann dies, the Meadow was not one of Webb's Bargains, Thomas had Issue Thomas the Lessor of the Plaintiff, Henry made a Feoffment in Fée to A. and B. to the use of himself and his Wife, and to the Heirs of their two Bodies, Remainder to his own right Heirs, with Warranty against all persons, and died without Issue; the Lessor of the Plaintiff enters, being his Cousin and Heir and of full age when Henry died. In this Case it was held, that if it had béen found that Margaret had an Estate for Life, and that Henry entred in her Life time, that it had beén then a Warranty commenced by Disseisin and would not have bound Thomas the Reversioner. But as it was, those two Iudges held it no Barr, because the War­ranty began with the Feoffment to uses, and Henry being him­self the Feoffeé, it returned instantly to him, and was extinct as to the Reversion, because that was revested in him in Fée, and therefore they held he could have no benefit either by Voucher or Rebutter, it being destroyed at the same time it was created: But Berkly and Richardson Iustices held, that quoad the Estate of Henry's Wife the Warranty had a Continuance, and the ground of the contrary opinion might be because Iustice Jones said there was no such Resolution, as is mentioned to be the fourth in Lincoln Colledge Case; yet he affirmeth that very Resolution in his own Reports fol. 199.

There is a Clause in the27 H. 8. c 10. Statute of Vses, difficult to be understood, by which 'tis Enacted, That every Cestuy que use may take such Advantage of vouching, &c. as the Feoffees themselves might, so that Cestuy que use have the Estate executed in him before the first day of May, 1536. which was a year after the making that Statute; so that the Clause seems to be exclu­sive of all others who shall come in afterwards.

Answ. But he supposed, the Intention of the Law Makers to be, That there should be no more Conveyances to Vses: But because they presumed, that at first Men might not know of it, therefore, lest the Parties should be any ways prejudiced, they gave liberty till such a time to Vouch or Rebutt, within which time they might have some knowledge of the Statute, and then it was supposed, they would make no more Limitations to Vses.

But though they imagined them to be left expiring, yet they revived. Since then, the Parliament gave leave to Vouch or Rebutt, whilst they could in reason think there would be any Conveyance to Vses, 'tis but reasonable, whilst they do conti­nue, that the Parties should Rebutt, especially since most Con­veyances at this day are made to Vses.

Windham Iustice accord in omnibus, and so Iudgment was given as aforesaid.

Anonymus.

DOwer, The Tenant pleads, That a Lease was made by the Husband for 99 years, before any title of Dower did accrue, which Lease was yet in being, and shews, that the Lessor afterwards granted the Reversion to J. S. and died, and that J. S. devised to the Tenant for Life.

The Demandant replies, That the Lessor made a Feoffment in Fee, absque hoc, that the Reversion was granted prout, &c.

The Tenant Demurrs.

Newdigate Serjeant, for the Demandant, argued, That the Plea was not good, to which he tooke several Execeptions.

1. Except. The Tenant by his Plea confesseth, That the De­mandant ought to have Iudgment of the Reversion expectant upon the Lease for 99 years, de tertia, but doth not say, parte.

[Page 18]2. Except. Here is the Grant of a Reversion pleaded, and 'tis not hic in Curia prolat'.

Then for the Matter, as 'tis pleaded, 'tis not good: He agreed, if Dower be brought against Lessee for years, he may discharge himself, by pleading the continuance of his Lease, during which time, the Demandant can have no Execution; but here the Te­nant is no ways concerned in the Lease; 'tis Littleton's Case, None shall take advantage of a Release, but he who is party or privy, and therefore the Lessee in this Case, being party, might have pleaded this, but the Tenant is altogether a Stran­ger.

Before the Statute of Gloucester, cap 11. If the Demand­ant had recovered, in a real Action against the Tenant, the Termor had been bound, because, at the Common Law, no body could falsifie the Recovery of a Free-hold, but he who had a Free-hold himself; this Statute prevents that Mischief, and Enacts, That the Termor shall be received before Judgment, to defend the Right of his Term, upon the default of the Tenant, and though the Iudgment cannot be hindred thereby, yet Exe­cution shall be suspended, during the Term; and therefore in Dyer 263. b. The Lady Arundel brought Dower against the Earl of Pembroke, who made default, and before Iudgment the Termor prays to be received upon this Statute, and pleads a Lease made by the Husband, after Coverture, which was as­signed to him, and that Dower de tertia parte, of the Rent of this Lease, was assigned to the Demandant, by the Court of Augmentations, which was afterwards confirmed by Letters Patents; that she accepted it, and concludes, That the Plea of the Tenant was by Collusion, between him and her, to make him lose his Term; And this was held ill, for the Reason given by my LordHob 316. Not for that reason, but be­cause that Court could not assign Dower, and so the Let­ters Patents of Confirmation could not make that good which was void be­fore. Hobart, That it is absurd to admit two Per­sons to dispute the Interest of a third Man.

But whether the Traverse is good or not, if the Plea is naught, Iudgment ought to be given for the Demandant.

Jones Serjeant contra: The Pleading is well enough.

1. The Tenant confesseth, That the Demandant ought to have Iudgment of the Reversion de tertia, which is well enough, omitting the word (parte) because he claims a third part of such Tenements; and the Tenant confesses she ought to have Iudg­ment, which is full enough, if the words de tertia parte were wholly omitted.

2. He agreed, That whoever Claims under a Deed, must shew it; but the Tenant, in this Case, did not defend himself [Page 19] by any Title from the Deed, for the substance of the Plea, which secured him, was, That a Lease of 99 years was in being, and by his alledging the Devise of an Estate to him for Life, made by the Grantee of the Reversion, he did but allow the De­mandant's Writ to be true, which mentions him as Tenant of the Free-hold.

Then for the Matter of the Plea, he says it was good, and that the Tenant might well plead the Lease for years.

By the3 Inst. 32. b. Statute of Merton, Damages are given in Dower, where the Husband died seised, which he did in this Case; but yet no Damages ought to be paid here, but for the third part of the Rent, and the third part of the Reversion, and therefore to acquit himself thereof, he may well plead, as here, for which there is a President in Hern's Pleader 335.

Then he said, That the Traverse was ill, for the principal Point in the Plea which he ought to have traversed, was the continuance of the Term; and 'tis not material who granted the Reversion, or to whom it was granted; for if there is a Lease in being, the Demandant cannot have Execution.

The Court were all of Opinion, That the substance of the Plea was good, because there was a privity in the Grantee, and it was for his benefit to avoid the Demandants Seisin, he being thereby entituled to the Rent, and he may plead this Plea, to save himself from Damages given by the Statute of Merton: But as to the Traverse,

North Chief Iustice, and Wyndham Iustice, inclined, That the Traverse was well taken; for if a Disseisor pleads the like Plea, as here, 'tis not good, and therefore when the Tenant alledges a Grant of the Reversion, the Demandant may well traverse it.

But Iustice Ellis and Atkyns were of Opinion, That the Tra­verse was immaterial, for it was the Lease and not the Grant that was traversable.

But because it was alledged by the Demandants (who of­fered to refer it to the Council on the other side) that this Lease so pleaded, was an old Mortgage, long since satisfied; it was referred accordingly.

Wilson versus Drake.

Prohibition Feme Sole hath Debts due by Speci­alty, she mar­ries, and dies, the Husband shall have Ad­ministration; Quaere, whe­ther he may make distribu­tion to her Kindred. A Prohibition being granted upon the late Statute for dis­posing of Intestates Estates: The Defendant demurred; and the Case was no more than this. Whether the Husband be­ing Adminstrator of the Wives Estate be compellable to make distribution amongst her Kindred or not?

This Case was argued by Serjeant Seys for the Defen­dant, and by Serjeant Jones for the Plaintiff.

The circumstances of the Case were:

A Feme sole had divers Debts owing to her by Specialty, she marries the Plainiff, and died, (the Bonds being not put in suit du­ring the Coverture) the Plaintiff administers, and her Brother sues to have a distribution; and it was insisted for him, that a Con­sultation ought to go because the22 & 23 Car. 2. c. 10. Statute extendeth to all per­sons, and therefore the Husband, though not named, shall make distribution, like the Statute de Donis which only mentions some Estates Tail; but it has been held that there are several other Estates Tail besides those particular instances there men­tioned.

The Title of this Act is general, and there is no Preamble to reduce it to particulars; the enacting and provisional Clause speaks in threé places of all persons dying intestate, within which general words a Feme Covert, as well as others, is con­tained.

Ex parte Quer.But on the other side it was said that this Case is not in­stanced in that Act which provides only where the Husband dies intestate.

As to what was objected, that this Act is a general provision and extends to all Cases of the like nature, the Title of it also being general, For setling of Intestates Estates; to that it was said, that before the making this Act there were many doubts in those Cases against which a Provision was thereby made, and therefore it well became the Prudence of that Parliament to take away all Scruples, and to settle those things which were so apt to be questioned: But no doubt was ever made before this Statute to whom Administration of the Wives Estate should be committed; for by the Statute of 31 Ed. 3. cap. 11. Power was given to the Ordinary to commit Administration to [Page 21] the best Friend of the Intestate; and therefore it has beén agréed that the4 Co. 51. Ognel's Case. Cro. Car. 106. Johns versus Row. Husband as being the best Friend of the Wife was in­tituled to theQuaere, For Administrati­on is not granted to the Husband de jure, the Or­dinary may grant it to whom he please. Administration.

And 'tis agréed on all sides, that no Distribution is to be made by an Administrator; for if any Suit had been commenced in the Spiritual Court to that purposes, a Prohibition was pre­sently granted. What need was there to settle this Matter by Act of Parliament, which was so clear before?

And 'tis the more unlikely that the Estates of Feme Co­verts should be intended to be disposed by this Act, when 'tis considered that all their Estates consist only in things in Action, which the Husband might release during the Coverture (for all the Goods in possession are by Law vested in the Husband by the intermarriage) and therefore such inconsiderable things may be well intended not worthy the care and provision of a Par­liament.

Besides, the Husband and Wife are but one person in Law, and this Act provides for the settling Intestates Estates; now the Wife cannot be said to die intestate, when her Husband (the better part) survives.

Before the making those Acts of 31 Ed. 3. cap. 11. and 21 H. 8. cap. 5. the Ordinary might have granted Administration to a Stranger; but now by the first of those Laws he is restrained to the next Friend, and by the other to the Widow or next of Kin; so that the power which he had at the Common Law, and which was too often by him abused, being now restrained, Administration must be granted as prescribed by this Law, and no equitable construction can take it from the Husband; for how can it be intended that the Parliament would take from him that Right which he had by those former Laws, and prefer the Relations of his Wife before him?

But if the Wife shall be adjudged an Intestate within this Act then the Husband must lose all her Estate in Action, and he will be then also within the rules of distribution; so that he must be at all the labour and pains of Administration (which must be granted to him) to defend and get in the Estate, and re­ceive no benefit, for he must only deduct his Expences out of the Profits, and distribute the overplus.

He is intituled to the Administration within the Statute of Edw. 3. He is also intituled to it within the Clause of the Sta­tute of H. 8. which Enacts, That 'tis to be granted to the Wife or next of Kin; and it seems very unreasonable that he should have no profit for his labour.

Lastly, A Feme Covert can never be intended to dye in­testate within the meaning of this Act; for that Clause which directs what Bond the Ordinary shall take of the Administrator is very remarkable to this purpose, which provides, That if it appear the deceased made any Will, &c. which a Feme Co­vert cannot do without her Husbands consent, and therefore she is not a person dying intestate within the intent of this Law. Curia advisare vult.

DE Termino Paschae Anno 27 Car. II. in Communi Banco.

Naylor versus Sharpless and other Coroners of Lan­cashire.

AN Action on the Case was brought for a False Return in which the Plaintiff sets forth,Case for a false Return Mod. Rep. 198. that upon a Writ issu­ing out of this Court to the Chancellor of the Dutchy of Lancaster, Process was directed to six Coroners being the Defendants, which was delivered to one of them, being then in the presence of the Party who was to be arrested, but he did not execute it, and afterwards at the Return of the Writ they all returned Non est inventus.

This Action was laid in Middlesex, and upon Not-Guilty pleaded, the Cause came to Tryal, and there was a Verdict for the Plaintiff.

Baldwyn Serjeant moved in arrest of Iugdment.

1. Except. That the Action ought not to be laid in Middlesex, but in Lancashire, where the Tort was committed.

But as to that it was answered by Serjeant Turner, when two Matters, both of which are material and are laid in two Counties, the Action may be brought in either, as if two libel in the Admiralty for a Contract made at Land in Dorsetshire, and for which the Plaintiff brings an Action in London against one of them, it has been adjudged the Action lies in either County.

2. Except. The Action will not lie against the six Coroners, for the Tort was done by one alone.

As to that it was said, all the Coroners are but one Officer; so if one Sheriff suffer an Escape, both are liable; but in this Case it had been ill to have brought the Action only against one, be­cause [Page 24] the ground of it is the false Return, which was made by six Coroners.

And as to the first Exception, there could be no doubt now, since after Verdict 'tisStat. 16 & 17 Car. 2. c. 8. helped though the Trial be in a wrong County.

But the Court said that Statute helps a Mistrial in the pro­per County, but not where the County is mistaken; and inclined likewise that this Action was well brought against the six for this Tort committed by one Coroner; but if it had béen for not ar­resting the Party, in such a Case it ought to have been brought against the Coroner who was present with the person to be ar­rested; for that had béen a personal Tort which could not have been charged upon the rest.

Edwards versus Roberts.

That he did totally forbear and doth not say hucusque, good.THE Plaintiff declares that the Defendant promised to pay him so much Mony, in consideration that he would forbear to sue him, and then he avers that he did extunc totaliter absti­nere, &c. Vpon Non Assumpsit pleaded a Verdict was found for the Plaintiff. And it was now moved by Turner Serjeant in Ar­rest of Iudgment.

1. Except. The consideration intends a total forbearance, and the averment is that from the making of the promise he did to­tally forbear, but doth not say hucusque: Sed non allocatur, for that shall be intended. And it was the Opinion of the whole Court, that if the Consideration be (as in this Case) wholly to forbear, the Plaintiff by an Averment that from the making the promise hucusque he did forbear, is well entituled to an Action.

A like Case was this Term, where the Consideration was as before, and the Averment was, that he forbore seven Months; and being moved in Arrest of Iudgment by Serjeant Baldwyn because 'tis not said hucusque, which implies that after the seven Months he did not forbear, it was notwithstanding held good, it being a reasonable time; and the rather, because if the Action had been brought within the seven Months, and the Plaintiff had aver­red that hucusque he forbore, it had been good enough. Quaere.

Reed versus Hatton.

IN a special Verdict in Ejectment the Question did arise up­on the construction of the Words in a Will;Devise pay­ing 5 l. per annum, 'tis a Fee. The Case being this: John Thatcher was seised in Feé of the Houses in question, and did devise them to his Son Robert; in which Will there was this Clause, viz. Which Houses I give to my Son Robert up­on this Condition, that he pay unto his two Sisters five pounds a year, the first payment to begin at the first of the four most usual Feasts that shall next happen after the death of the Testator, so as the said Feast be a Month after his death, with a Clause of Entry for Non-payment. The Testator dies; the Houses are worth 16 l. per annum; and whether Robert the Son shall have an Estate for Life only or in Fee was the Question.

This was argued by Jones Serjeant for the Plaintiff, and by Seys Serjeant for the Defendant.

And for the Plaintiff it was said,Ex parte Quer. that Robert had but an E­state for Life: 'Tis true in most Cases the Word paying makes a Fee, where there is no express Fee limited; but the difference is, viz. where the Mony to be paid is a Sum in gross, let it be equivalent or not to the value of the thing devised, the Devisee shall have a Fee, though the Estate be not devised to him and his Heirs; but if it be an annual payment out of the thing devised, as in this Case, it will not create a Fee without apt words, be­cause the Devisée hath no loss, and therefore it hath beén held that if a Devise be made to two Sons, to the intent that they shall bear equal share towards the payment of 40 l. to his Wife for Life; the Sons had only an Estate for Life because 'tis quasi an annuel Rent out of the Profits and no Sum in gross,Jones 211. Cro. Car. 157. Broke Abr. tit. Estate 78.

And6 Co. 16. Colliers Case was much relied on where this very diffe­rence was taken, and allowed that paying 25 l. in gross makes a Fee, but paying 50 s. per annum creates only an Estate for Life.

All Devises are intended for the benefit of the Deviseé, and therefore where a Sum in gross is devised to be paid which is done accordingly, in such Case if the Deviseé should die soon after, the Mony would be lost, if he should have only an Estate for Life; but in the Case at Bar the Testator by a nice calcula­tion had appointed when the first payment should be made, viz. [Page 26] not until a Month after his decease, which hath prevented that da­mage which otherwise might have happened to the Devisee, if no such provision had béen made, Vide Hob. 65. Green's Case.

Ex parte Def.But on the other side it was said, that Robert had a Fée, for though here is a Sum to be paid annually 'tis a Sum in gross, and Collier's Case was also relied upon on this side.

It was agreed, where payment is to be made by which the De­visee can sustain no loss, the Word Paying there will not make a Fée, but if there be any possibility of a loss there it will create a Fee, which is the express resolution in Collier's Case.

Here the five pounds is payable quarterly, and the first pay­ment is to be made the next Quarter after the death of the Te­stator, so as it be a Month after his decease; if then he should die a Month before Christmas, the Deviseé is to pay the whole quar­terly payment at Christmas: So that if he should dye the next day after, instead of having any benefit, he would lose by this Devise in case it should be construed that he had an Estate only for Life.

The Court were of Opinion that a Legacy or Devise is always intended for the benefit of the party; so that 'tis reasonable to make such construction of the Will, that he may have no possi­bility of a loss. And it hath been resolved where a Devise was to A. upon Condition to pay a Sum of Mony to B. and in case of failure that B. may enter, 'tis no Condition but an Executory Devise, and that10 Co. 36. Mary Portington's Case was denyed to be Law in the Resolution of Fry and Porter's Case in the King's Bench.

Judgment.And afterwards in this Term Iudgment was given for the Defendant. For if there be a Devise to one upon Condition to pay a Sum of Mony, if there be a possibility of a loss, though not very probable that the Devisee may be damnified, it shall be construed a Fee, and such Construction hath been always allowed in Wills. If A. devise 100 l. per annum to B. paying 20 s. 'tis not likely that the Devisee should be dampnified, but 'tis possible he may; and therefore the Estate in this Case being limited to Robert, and charged with payments to the Sisters during their Lives, doth plainly prove the intent of the Testator, was that the Devisee should have an Estate in Fee simple; and Iudgment was given accordingly.

Bridges versus Bedingfield.

DEBT was brought upon a Bond of Award,Arbitrament Where the thing awarded is hindred to be done by the Act of a Stran­ger. and the breach assigned was for not delivering of quiet possession to the Plaintiff of Seats in a Church.

The Defendant craves Oyer of the Bond and Condition which was for performance of an Award to be made de prae­missis vel aliquâ parte inde; and if there should be no Award made, then for the performance of an Umpirage, and pleads that the Arbitrators made no Award de praemissis, but the Vmpire awarded that the Plaintiff should abinde upon all occasions hold two Seats quietly and peaceably in such a Church without any disturbance made by the Defendant; and that on the first day of November following the Defendant should deliver up the Seats to the Plaintiff, and that each should bear his own charge; and by his Plea he farther sets forth that the Plaintiff enjoyed the Seats prout till the 30th day of October next following, on which day the Seats were pulled down without his knowledge or consent, per quod he could not deliver them to the Plaintiff on the said first day of November.

The Plaintiff demurred,Ex parte Quer. and Serjeant Jones maintained the De­murrer, and said, that the Pleading of nullum fecerunt Arbitrium is not good; for 'tis said de praemissis only, whereas it should have been nec de aliqua parte inde; for if a Bond be to perform an Award of two persons or either of them, it will not be sufficient to plead that those two persons made no Award, without adding nec eorum aliquis.

But if an Award be to be made of the Mannors of Dale and Sale or either of them, and the Award is made only of Dale, 'tis well enough.

2. Except. Viz. The Vmpirage is that the Plaintiff should hold the Seats abinde, which is for ever; and the Defendant pleads that the Plaintiff enjoyed them till the thirtieth day of October.

3. Except. Viz. The Seats were to be delivered to the Plain­tiff on the first day of November, and the Defendant pleads that they were pulled down before that day without his privity, which is not a good Plea by way of excuse; for being bound to de­liver the Seats, he is to prevent what may hinder the performance of the Condition.

'Tis agreed, that if a thing be possible, and afterwards by the Act ofJones 179. Win's Case. God becomes impossible to be done, that will be a good excuse; as if I promise to deliver a Horse at such a day, and he dies before the day, I am excused, 21 E. 4. 70. b.

So if a Scire Fac̄ be brought against the Bail, and they plead that before the Writ brought the Principal was dead, this was held not good upon Demurrer, unless he is alledged to be dead before the Capias awarded against him, Cro. Jac. 97.

But if the Action of a Stranger interpose, which makes the thing impossible, that is no excuse, 22 E. 4. 27. And therefore 'tis no Plea for the Bail to say, that the Principal was arrested at another Mans Suit and had to Prison, for which reason he could not render him, Cro. Eliz. 815.

So if I deliver Goods to the Defendant, and in Action of Detinue brought, he pleads they were stole, 'tis no good Plea, because the delivery charges him at his peril, unless he undertake to keep them as his own, 4 Co. Cro. El. 815. Southcot's Case. So if an Escape be brought against a Goaler, he is not excused by alledg­ing that Traitors broke the Prison, Roll. Abr. 1. part 808. Et sic de similibus.

Ex parte Def. Seys Serjeant contra. As to the first Exception nullum fece­runt Arbitrium de praemissis is well enough; for that implies nec de aliqua inde parte, especially if the contrary is not shewn in the Replication, and therefore it shall never be intended that an A­ward was made of some part.

2. 'Tis said, he enjoyed the Seats till the thirtieth of Octo­ber, and then they were taken down, so not being in rerum na­tura they could not be enjoyed longer.

3. And this is a good excuse for not delivering them to the Plaintiff on the first day of November, and so a good performance of the Award, Co. Lit. 206. b.

If A. be bound to B. that C. shall marry Jane such a day, and B. the Obligee doth marry her himself before that day, the Obli­gor is excused; because by his means the Condition could not be performed.

There is a difference taken where a Man is bound to de­liver things which are in his Custody, and other things which are not in his possession; as in the first Case, to deliver my Horse or Dog, for such I may secure in my Stable from ca­sualties: But in this Case it is expresly said in the Award, that the Property of the Seats was in the Plaintiff, and that they were fixed in the Church, so that he could not possibly se­cure them in his own House without subjecting himself to an [Page 29] Action; and an Award that one Man shall take the Goods of ano­ther, is void.

But if the Plea is not good, yet if the Vmpirage be naught, Iudgment is to be given for the Defendant, for the advantage is saved to him upon the Demurrer.

And as to that, the Vmpirage is but of one side, for the Plain­tiff is to do nothing, nor is the Defendant to be acquitted of all Suits.

To which it was answered by the Plaintiff's Council, That the Vmpirage was of both sides; for there being Suits depend­ing, 'tis awarded, that each shall bear his own Charges, which is a benefit to the Defendant, for otherwise (seing the right was in the Plaintiff) the Defendant should have paid the Plaintiffs Costs as well as his own, for which he cannot now sue without forfeiting his Bond: Curia advisare vult.

Squibb versus Hole.

THE Plaintiff brought an Action of Escape, Escape. Action of Es­cape; the Pro­cess was upon Bond, not made within the Jurisdicti­on of an Infe­riour Court, and therefore no Escape. and declares That he prosecuted one J. S. in the court of Ely, upon a Bond made infra Jurisdictionem of that Court, upon which he was taken, and the Defendant suffered him to Escape.

Vpon Not Guilty pleaded, the Iury found a special Verdict to this effect, viz. That there was such a Bond, upon which there was such a prosecution, and such an Escape as in the De­claration, but they find farther, that this Bond was not made in­fra Jurisdictionem Curiae.

Maynard Serjeant, who Argued for the Plaintiff, said that this Action was commenced in an Inferiour Court, upon a Bond which the Plaintiff sets forth to be infra Jurisdictionem Curiae; and that the Defendant was Arrested and suffered to Escape; and whether (if in truth the Bond was not made infra Jurisdicti­onem) an Action of Escape would lye, or whether all the proceéd­ings are coram non Judice, was the doubt.

He took a difference, where an Inferiour Court hath an Origi­nal Iurisdiction of the Cause, and hath conusance of such a Suit as is brought there; for in such Cases the proceedings are not extra-judicial; but if an Action is brought where properly no Action doth lye, all the proceedings there are coram non Ju­dice.

At the Common Law, one who had a particular Iurisdiction to hold Pleas within a Liberty, could not hold any Plea of a thing which did arise out of the Liberty, for though it was transitory in its nature, yet being alledged not within his Iurisdiction, it was ill, 2 Inst. 231.

But when the cause of Action arises infra Jurisdictionem, that gives them Authority to proceed; and therefore it would be hard that the Iudge and Officer should be punished by a construction to make all extra judicial, when they have no possible way of finding, whether in truth the Cause did arise within thePost. Crow­der and Good­win. Iuris­diction of the Court or not: But the Officer is bound to obey the Process of the Court, if it appear (as in this Case,) that they had conusance of it; the Iudge is likewise bound to grant the Process, otherwise he is subject to the Plantiffs Action for his refusal.

In some Cases, the Plaintiff himself may not know where the Bond was made; as if he be Executor of the Obligee, &c. Besides, in this Case 'tis set forth, That in the Action below, the Defendant pleaded non est factum, and so had admitted the Iurisdiction, or at least had waived it; and it would be an insuffe­rable mischief, if after all this labour and charge the Defendant might avoid all again.

North Chief Iustice said, That if this Cause had been try­ed before him, he would have Non-suited the Plaintiff, because he had not proved the truth of what he laid down in his Decla­ration, viz. That the Bond was made infra Jurisdictionem Cu­riae. But as to the Matter as it stood upon the special Ver­dict, he inclined, that as to the Plaintiff (who knew where the Bond was made) all the proceedings were coram non Judice; but as to the Officer it was otherwise, for the Pleint and Pro­cess would be a good Excuse for him, in an Action of false Im­prisonment

Judgment.And afterwards, by the Opinion of three Iudges, viz. the Chief Justice, Wyndham and Atkyns Iustices, Iudgment was given for the Defendant, That this was no Escape, and that though the Party had admitted the Iurisdiction, by his Plea of non est factum below, yet that could not give the Court any Iuris­diction, which had not any originally in the Cause; and the Case ofRoll. Abt. tit. Escape 809 pl. 45. Richardson versus Bernard was cited as an Authority in point, where the Plaintiff in an Action brought against an Officer, de­clared in Hull, upon a Bond made at Hallifax, and had Iudg­ment [Page 31] and Execution, and the Defendant escaped: And in an Action brought for this Escape, the Declaration was held ill, because it did not alledge the Bond to be made infra Juris­dictionem Curiae.

Ellis Iustice, of a contrary Opinion in omnibus.

Sams versus Dangerfield.

THE Plaintiff being Collector of the Hearth-Mony,Departure. brought an Action of Debt, upon a Bond, against his Sub-Col­lector, conditioned to pay such Sums as he should receive (with­in 14 days after receipt) at such a place in the City of Worcester, as the Plaintiff should appoint.

The Defendant pleads payment.

The Plaintiff assigns a breach, in non-payment of such a Sum received at a place by him appointed.

The Defendant rejoyns, that the Plaintiff appointed no place; and the Plaintiff demurr'd.

And after Argument for the Plaintiff, by Jones Serjeant, this was adjudged a departure, because the Defendant ought to have pleaded first, that he had paid all but such a Sum, for which as yet, the Plaintiff had appointed no place of payment; and Iudg­ment was given accordingly.

Smith versus Hall.

IN an Action brought against the Defendant for false Impri­sonment, he justified by virtue of a Latitat, False Impri­sonment doth not lye, but an Action on the Case a­gainst the She­riff for refu­sing sufficient Bail. which the Plain­tiff agreed in his Replication; but farther set forth, that after the Arrest, and before the Return of the Writ, he tendered suf­ficient Bail, which the Defendant refused; and Issue was joyn­ed upon the tender, which was found for the Plaintiff.

Newdigate Serjeant, moved in Arrest of Iudgment.

1. Though it was an Offence in the Defendant, who was the Sheriff's Bayliff, to refuse good Bail, when tendred, yet 'tis not an Offence within the Statute 23 H. 6. cap. 10. because a Sheriffs Bayliff is not an Officer intended in that Statute, neither will this Offence make him a Trespasser, ab initio, be­cause [Page 32] the taking was by lawfull Process, Cro. Car. 196. Roll. Abr. 2 part 561. pl. 9. Salmon versus Percival.

The Defendant, as Bayliff to the Sheriff, is not the proper Officer to take Bail, but the Sheriff himself must do it, and therefore an Action on the Case must lye against the Bayliff, for not carrying the Party before the Sheriff, in order to put in Bail; but an Action of false Imprisonment will not lye.

2. The action is laid, quare vi & armis, &c. in ipsum (the Plaintiff) insultum fecit & ipsum imprisonavit & ut Prisonat à tali loco ad talem locum adducebat & detinuit contra consue­tudinem Angliae & sine cause rationabili per spacium trium di­erum.

The Defendant pleaded quoad venire vi & armis necnon to­tam transgressionem, praeter the taking and deteining him three days, non Culp. and as to that, he pleaded the Latitat, War­rant and Arrest, ut supra; but the Verdict being only against the Defendant, upon the second Issue, and nothing appear­ing to be done upon this, and entire Damages given; 'tis for that reason ill.

North Chief Iustice, If the Writ and Warrant were good, then the refusing Bail is an Offence within the Statute, of 23 H. 6. And as 'tis an Oppression, so 'tis an Offence also at the Common Law; but an Action on the Case, and not of false Impri­sonment lyeth against the Officer; for it would be very un­reasonable, by the refusal of Bail to make the Arrest tortious ab initio

A special Action on the Case, had therefore been the proper remedy against the Sheriff, but not against the Officer; for an Escape will not lye against him, but it must be brought against the Sheriff.

Kren versus Kirby.

Surrender by a Disseisor, not good.IN Ejectment, the Lessor of the Plaintiff claimed under a Surrender made to him by William Kirby, who had an Estate in the Land, after the decrease of his Father, but en­tred during his Life, and thereby became a Disseisor; and his Estate being now turned into a Right, he made the Surren­der to the Lessor of the Plaintiff; all which was found by spe­cial Verdict at the Tryal; and it was adjudged that the Surren­der was void.

It was pretended at the Trial, that the Father, who was Te­nant for Life, had suffered a Common Recovery in the Lords Court, and so his Estate was forfeited, for which the Son might enter, and then his Surrender is good.

But the Court answered, that without a particular Custom for the purpose, the suffering a Recovery would work no For­feiture of the Estate; but if it did, 'tis the Lord and none else who can enter: And so Iudgment was given for the Defen­dant.

Duck versus Vincent.

DEBT upon Bond conditioned to perform Covenants,Plea to debt upon bond not good. one of which was for payment of so much Mony upon making such Assurances.

The Defendant pleaded he paid the Mony such a day, but doth not mention when the Assurance was made, that it might ap­pear to the Court the Mony was immediately paid pursuant to the Condition; and for that reason the Court were all of Opinion that the Plea was not good: And Iudgement was given for the Plaintiff upon Demurrer.

Smith versus Shelberry.

IN Assumpsit the Plaintiff declared that he was possessed of a Term of 80 years,Assumpsit upon a mu­tual pro­mise. and it was agreed between him and the Defendant, that he should assign all his interest therein to the De­fendant, who proinde should pay 250 l. and that he promised, that in consideration that the Plaintiff at his request had likewise promi­sed to perform all on his part, that he would also perform all on his part; and then sets forth that the Defendant had paid a Guinea in part of the said 250 l. and that he, viz. the Plaintiff obtulit se to assign the Premisses by Indenture to the Defendant, which was written and sealed and woud have delivered it to him, but he refused, and assigns the breach in Non-payment of the Mony, to which the Defendant demurred.

And it was said for him by Baldwin Serjeant,Ex parte Def. that this was not a good Declaration, because the Assignment ought to precede the Payment, and that it was not a mutual promise, neither was the obtulit se well set forth; but this was a Condition precedent on the Plaintiffs side without the performance where­of [Page 34] no Action would lie against the Defendant, Vide 7 Co. Ughtreds Case, fol. 10. b. because it was apparent by the Plaintiffs own shewing, that the Mony was not to be paid till the Assignment made; for the Plaintiff is to assign, and the Defendant pro­inde, which is as much as to say, pro assignatione, is to pay the Mony: Like the Case in Dyer 76. a. Assumpsit against the Defendant that he promised pro 20 Marks to deliver 400 Weight of Wax to the Plaintiff, the Pronoun Pro makes the Contract conditional.

Ex parte Quer.But Pemberton Serjeant for the Plaintiff held the Declara­tion good, and that it was a mutual promise, and that the Plain­tiff need not averr the performance;Hill & Thorn Postea. for in such Cases each has remedy against the other; and 'tis as reasonable that the Plaintiff should have his Mony before he make the Assignment, as that the Defendant should have the Term assigned before he paid the Mony: And of that Opinion was the Court, only Iu­stice Atkins doubted.

Ellis Iustice cited a Case adjudged in the King's Bench which was, as he thought,Stiles Rep. 186 Postea. very hard, viz. An Assignment was made between A. and B. that A. should raise Souldiers, and that B. should trans­port them beyond Sea, and reciprocal promises were made for the performance (as in this Case) that A. who never raised any Souldiers may yet bring his Action upon this promise against B. for not transporting them, which is a far stronger Case than this at Barr.

It was agréed here that the Tender and Refusal (had it beén well pleaded) would have amounted to, and have been equivalent with a full performance, but the Plaintiff hath not done as much as he might, for he should have delivered the Indenture to the Defendants use, and then have tendered it. But Iudgment was given for the Plaintiff.

Hays versus Bickerstaffe.

Covenant not condi­tional by the words paying and performing.IN Covenant brought by the Lessee, who declared that the Lessor covenanted with him, that he paying the Rent and per­forming the Covenants on his part to be performed shall quietly enjoy.

The breach assigned was a disturbance by the Lessor, who pleads, that till such a time the Plaintiff did quietly enjoy the thing demised without disturbance; but then he cut down Wood, [Page 35] which was contrary to his Covenant, and then and not before he entred; and so by the Plaintiffs not performing his Cove­nant the Defendants Covenant ceases to oblige him; where­unto the Plaintiff demurred.

The Question was, Whether the Defendants Covenant was conditional or not? For if it amount to a Condition, then his Entry is lawful; but if it be a Covenant, 'tis otherwise, for then he ought to bring his Action.

Pemberton Serjeant for the Plaintiff.Ex parte Quer. That this Covenant is not conditional, for the words paying and performing signifie no more than that he shall enjoy, &c. under the Rents and Cove­nants, and 'tis a Clause usually inserted in the Covenant for quiet Enjoyment: Indeed the word paying in some Cases may amount to a Condition; but that is where without such constructi­on the party could have no remedy.

But here are express Covenants in the Lease, and a direct re­servation of the Rent, to which the party concerned may have re­course when he hath occasion.

A liberty to take Pot-water paying so many Turns, &c. 'tis a Condition.

The Words paying and yielding make no Condition,Cook and Herle, Postea. Vaugh. 32. nor was it ever known that for such Words the Lessor entred for Non-payment of Rent; and there is no difference between these Words and the Words paying and performing, Bennet's Case in B. R. ruled no Condition, Duncomb's Case, Owen Rep. 54.

Barrel Serjeant for the Defendant said,Ex parte Def. that the Covenant is to be taken as the parties have agreéd; and the Lessor is not to be sued if the Lessée first commit the breach: Modus & Conventio qualifie the general Words concerning quiet Enjoyment.

The Court took time to consider, and afterwards in this Term Iudgment was given for the Plaintiff,Sid. 266, 280. that the Covenant was not conditional.

Atkins Iustice doubted.

Simpson versus Ellis.

Debt by a Bailiff of a Liberty. DEBT upon Bond by the Plaintiff, who was chief Bailiff of the Liberty of Pontefract in Yorkshire, but he did not declare as Capital Ballivus, but yet by the whole Court it was held good; for otherwise the Defendant might have craved Oyer, and have it entred in haec verba, and then have pleaded the Statute of 23 H. 6. that it was takenSand. 161. Sid. 383. Latch. 143. colore Officii, but now it shall be intended good upon the Demurrer to the Decla­ration.

And Ellis Iustice said that so it was lately resolved in this Court in the Case of one Conquest. And Iudgment was given for the Plaintiff.

Mason versus Stratton, Executor, &c.

Judgment kept on foot per Fraudem. 2 Cro. 35, 102. Vaugh. 103, 104. DEBT upon Bond. The Defendant pleads two Iudgments had against his Testator, and sets them forth, and that he had but 40 s Assets towards satisfaction.

The Plaintiff replies, that the Defendant paid but so much up­on the first Iudgment, and so much upon the second, and yet kept them both on foot per Fraudem & Covinam.

And the Defendant demurred specially.

1 Roll. Abr. 802. 2 Cro. 626Because the Replication is so complicated that no distinct Issue can be taken upon it; for the Plea sets forth the Iudgments se­verally, but the Plaintiff puts them both together, when he al­ledges them to be kept per Fraudem.

But on the other side it was said, that all the Presidents are as in this Case,Sid. 333. 8 Co. Turner's Case 132. 9 Co. Meriel Tresham's Case 108 And of that Opinion was all the Court, that the Replica­tion was good: And Iudgment was given for the Plaintiff.

Suffeild versus Baskervil.

No Breach can be as­signed upon a Promise.DEBT upon Bond for performance of all Covenants, Payments, &c. In an Indenture of Lease wherein the Defendant for and in consideration of 400 l. lent him by the Plaintiff, granted the Land to him for 99 years, if G. so long lived, provided if he pay 60 l. per annum quarterly during the [Page 37] Life of G. or shall within two years after his death pay the said 400 l. to the Plaintiff, then the Indenture to be void, with a Clause of Reentry for Non-payment.

The Defendant pleads performance.

The Plaintiff assigns for breach, that 30 l. for half a year was not paid at such a time during the Life of G.

The Defendant demurrs.

For that the breach was not well assigned, because there is no Covenant to pay the Mony, only by a Clause Liberty is given to re-enter upon Non payment.

The Court inclined, that this Action would not lie upon this Bond, in which there was a Proviso and no express Covenant, and therefore no Breach can be assigned.

Benson versus Idle.

AUdita Querela, The Case upon Demurrer was,Estoppel not well pleaded with a Tra­verse. That be­fore the Kings Restauration the now Defendant brought an Action of Trespass against the Plaintiff for taking his Cloath, who then pleaded, that he was a Souldier and compelled by his Fellow Souldiers, who threatned to hang him as high as the Bells in the Belfry if he refused; To this the Plaintiff then replied de injuriâ suâ propriâ, &c. And it was found for him, and an Elegit was brought, and the now Plaintiffs Lands extended.

Then comes the Act of12 Car. 2. cap. 11. Indempnity which pardons all Acts of Hostility done in the Times of Rebellion, and from thence­forth discharges personal Actions for or by reason of any Trespas comitted in the Wars, and all Iudgments and Executions there­on before the first day of May, 1658. but doth not restore the party to any Sums of Mony, mean Profits or Goods taken away by virtue of such Execution, or direct the party to give any account for the same; which Act made by the Convention was confirmed by 13 Car. 2. cap. 7.

And upon these two Acts of Parliament the Plaintiff (ex­presly averring in his Writ that the former Recovery against him was for an Act of Hostility) now brought this Audita Que­rela.

The Defendant pleads the former Verdict by way of Estop­pel, and concludes with a Traverse abs (que) hoc that the taking of his Goods was an Act of Hostility.

This was argued by Holloway Serejant for the Plaintiff, and by Jones Serjeant for the Defendant, who chiefly insisted, That the Defendant having pleaded the substance of this Matter before, and being found against him, that he being now Plaintiff could not averr any thing against that Record.

But the Court were all of Opinion, that Iudgment should be given for the Plaintiff; for his remedy was very proper upon the Convention, and without the Statute of Confirmation; and here is no Estoppel in the Case; for whether this was an act of Hostility or not, is not material; neither was it or could it be an Issue upon the former Tryal, because all the Matter then in Question was concerning the Trespass, which, though found against the now Plaintiff, yet it might be an act of Ho­stility; but if it were an Estoppel, 'tis not well pleaded with a Traverse, and the Court hath set it at large.

DE Term. Sanctae Trin. Anno 27 Caroli II. in Communi Banco.

Mayor and Cominalty of London, versus Gatford.

IN an Action of Debt brought by the Plaintiffs,Constructi­on of an Act of Parlia­ment. for a Fine of 13 l. 6 s. 8 d. set upon the Defendant, by the Steward of the Burrough of Southwark, for that he refused to take the Oath and serve as a Scavenger in the said Burrough, though duly Elected according to Custom there; and upon nil debt pleaded, the Iury found a special Verdict, the substance of which was,

Viz. They find the Act of 14 Car. 2. cap. 2. And the Proviso therein, which governed this Case, viz. That all Streets and Lanes in London, Westminster, and the Liberties thereof shall be Pa­ved as they have alwayes used to be,

Then follows another Clause, by which it is Enacted, That Scavengers shall be Chosen in the City of London, and the Li­berties thereof, according to the Ancient Usage and Custom; so likewise in the City of Westminster; but nothing is therein men­tioned of Southwark. And in all other places a new form of choosing is prescribed.

Viz. In the other Parishes the Constables, Church-Wardens, &c. shall meet in the Easter-Week, and choose two Scavengers in every respective Parish: so that the intent of the Act must be (though Southwark is not named) that still Scavengers shall be chosen there, as formerly; because London and the Liberties thereof are to follow their Ancient Custom in the choice of this Officer: and Southwark is within the City Liberties

But whether the Custom of choosing of him was not taken away by this Statute, and so the Fine not well Assessed, was the Question.

Ex partte Quer. Baldwyn for the Plaintiffs argued, That admitting in Southwark a Scavenger may be chosen, according to the new form pre­scribed in the Act; yet this Statute was only in theHob. 173. Dyer 341. b. Affirma­tive, and did not thereby take away the custom of choosing him at the Leet.

Like the Case in Dyer 50. An Act that the Youngest Son shall have an Appeal of the death of his Father;Hob. 17. yet that doth not exclude the Eldest, because 'tis the Common Law, and there are no words to restrain him.

In the 11 Co. 63. Doctor Foster's Case: By the Statute of 35 Eliz. against Recusants, which gives the Penalty of 20 l. ꝓ Month against the Offender; the 12 d. for the neglect of every Sunday, given by a former1 Eliz. Statute is not taken away.

But where there is a Negative Clause in an Act of Parlia­ment, the Law is otherwise: as an Act that the Sessions of the Peace shall be kept at Beaumarris tantum, & non alibi infra Com̄, &c. and the Iustices kept it at another place, and several were Indicted before them at that time; but the Iustices were fined, and all their proceedings held Coram non Judice, by reason of the Negative Prohibition, Dyer 135.

1 Inst. Sect. 500. 2 Inst. 68.By the Statute of Magna Charta, cap. 34. a Woman shall bring no Appeal but for the death of her Husband, which she might at Common Law, before the making of this Statute; if therefore she is Heir to her Father, the Appeal which she might have brought for his death, by these Negative words is taken away.

Ex parte Def. Barrell for the Defendant; though this Law be in the Affir­mative; yet since it doth not prejudice any person, neither can it be injurious if Scavengers are chosen as directed by the Act, it shall be taken as a Negative Clause; and for this many Instan­ces may be given; as, the Statute for devising part of the Te­stators Land, doth not take away the custom to devise the whole, for that would be an apparent prejudice to the Parties; but not so in this Case, where 'tis not found that the Lord of the Man­nor sustains any loss, for he is to have nothing when a Scaven­ger is chosen in the Leet; nor are the Inhabitants prejudiced, for by this New choosing their Streets shall be kept as clean as before.

The Form here established doth not consist with the Custom, and so hath the Effect of a Negative Clause, Hob. 298.

It appears by the Scope of the Act, That the intent of the Parliament was to take away those old Customs of choosing, [Page 41] because the Customs are expressly saved in London and Westmin­ster; but in all other places a new way is appointed.

The pavement of the Streets in Southwark shall be as be­fore; but that Clause goes no farther, and therefore concerns not the Case of a Scavenger, whose duty is not to pave, but cleanse the Streets.

And the words, viz. Liberties of the City of London, will not help, because Southwark is not comprehended under them, in that Clause, no more than are the Lands which they have in Yorkshire; for the word Liberties Postea 48. there, is taken for Limits, and can admit of no other Construction.

Lastly, that the Plaintiff cannot have Iudgment, because he hath no alledged the Custom to be, That the Steward may Fine, in case of the refusal to take the Oath, &c. and Customs are to be taken stictly.

The Chief Iustice and Iustice Atkins said, That 'tis true, Sca­vengers are under the power of the Court Leet, by Custom, and in case of refusal may be fined, as well as an Ale-Ta­ster.

But this Act of Parliament having taken notice, that there were Scavengers before that time, and Southwark being therein named as distinct from the Liberties of London; for 'tis provi­ded, That Westminster, London, and the Liberties thereof, and Southwark are to have the Streets paved, as before, which doth not belong to the Office of a Scavenger; and so that Clause in the Act concerns not this Case.

But where it Enacts, That in London and Westminster, Scaven­gers shall be chosen as before; but in all other places appoints a new way; this is as much as if it had said, That Scaven­gers shall be chosen in every place as by the Act prescribed, and no other way, except in London and Westminster; and so great is the inconsistency between the Custom and the Act, that they cannot stand both together; therefore, though the Act is but tem­porary, the Custom is suspended, and though it may be some damage to the Lord to make such Construction, yet that will not alter the Case; for Law-Makers are presumed to have re­spect to the publick Good more than to any private Mans pro­fit; and the Lord may be said in this case to have dispensed with his Interest, being a Party to the Act, and consenting there­unto.

But Wyndham and Ellis Iustices, inclined, That the Custom did continue, because the Act was in the Affirmative; and there­fore [Page 42] they would not construe it to take away a Mans Right and Interest, or a Custom where he hath a benefit, as the Lord of the Mannor had in this Case, who is prejudiced by the loss of his Fees; and the intent of the Statute seemed to them to be, That Scavengers should be chosen where none were be­fore, but not to take away Customs for chusing of them: But ano­ther Argument was desired by Serjeant Howel, the Recorder of London.

Rozal versus Lampen.

Variance in the Actions no Barr.COnspiracy. Rozal declares, That a Replevin was brought against him and others, and that the Defendant Lampen appeared for him without any Warrant, and avowed in his Name, and suffered Iudgment to pass against him, and that 22 l. 10 s. Damages were recovered against him, at such a place.

Lampen pleads a Recovery in a former Action brought by the now Plaintiff, the Record of which being recited in the Plea, appears to be the same with this; but only here the place is mentio­ned where the Damages were recovered, which was omitted in the former Action, to which Lampen had pleaded a Reteiner, by one of the then Defendants in Replevin, and upon a De­murrer had Iudgment. But the truth of the Case was, That Iudgment was not then given for him that his Plea was good; for the Court were all of Opinion, that it was naught; but because the Declaration was not good, for want of mentioning the place where, the Damages were recovered, which the Plain­tiff had amended now.

The Plaintiff demurred again; because of this Variance be­tween the two Actions upon the Defendants own shewing.

Ex parte Quer. Post. Rose and Standen, Putt and Roster.Sir Robert Shaftoe for the Plaintiff, insisted, That a Reco­very in an Action is no barr, where there is a substantial va­riance, as here there is; and that so it has been adjudged, in the Case of Leach and Thompson, 1 Roll. Abr. 353. lit. B. pl. 1. where the Plaintiff declared, That he, at the Defendants request, having promised to Marry the Defendant's Daughter, he promised to pay him 1000 l. Vpon Non Assumpsit pleaded, Iudgment was given for the Defendant. And the Plaintiff brought another Action for the same Sum, and then laid the promise to pay 1000 l. cum inde requisitus esset; and it was ad­judged, that the former Iudgment was no bar to the last Action; [Page 43] because there was a Material difference between the two Pro­mises, one being laid without Request, and so the Money was to be paid in a convenient time; and in the last, the Request is made part of the Promise, and must be specially alledged, with the time and place where it was made.

So in this Case, The Plaintiff had not declared right in his first Action, which he had amended now, and therefore the former Iudgment shall be no barr to him.

In Robinson's Case, there was a Mistake in the Writ, viz. A Formedon in Remainder, for that in Reverter; and held no barr; so by a parity of reason there shall be no barr here, be­cause the first Declaration was mistaken,Stat. 3 H. 7. c. 1. Syd. 316. and it was vitium Clerici; Vide 2 Cro. 284. Level versus Hall.

Barton Serjeant contra; This is no new Action;Ex parte Def. for the ground of it is, not where the Damages was done, or reco­vered, but the appearing without a Warrant; and so having pleaded a Reteiner and had Iudgment, and now pleading that Iudgment to this Action, and averring 'twas for one and the same thing, 'tis a good barr, which the Plaintiff by his De­murrer hath confessed. Adjornatur.

Milward versus Ingram.

INdebitatus Assumpsit for 50 l. and quantum meruit, One pro­mise plead­ed in dis­charge of another, good be­fore the breach. Mod. Rep. 205. the De­fendant confesses both; but pleads, That after the promise made, and before the Action brought, they came to an Accompt concerning divers Sums of Money, and that he was found in arrear to the Plaintiff 30 s. whereupon, in consideration the De­fendant promised to pay him the said 30 s. the Plaintiff like­wise promised to release and acquit the Defendant of all De­mands.

The Plaintiff demurred.

Seys Serjeant argued for the Plaintiff;Ex parte Quer. that though one pro­mise may be discharged by another, yet a duty certain cannot, (as in this Case) where a demand was of a Sum certain, by the Indebitatus; besides, this Plea is in nature of an Accord, which cannot be good without an averment of satisfaction given, Broke Accompt 46, 48.

Neither is it said, that the Plaintiff promised in considera­tion that the Defendant ad instantiam of the Plaintiff had pro­mised.

Ex parte Def.But it was answered by Serjeant Hopkins, and admitted to be true, That where a Matter is pleaded by way of accord, it must be averred to be executed in all Points but that was not the present Case. [...] Cro. 100.

The Defendant hath pleaded, that he and the Plaintiff had ac­counted together, and so the Contract is gone by the Accompt.

2. That he was discharged of the Contract by parol, both which the Plaintiff had now admitted by his Demurrer.

And it will not be denied that a Parol discharge of an Assump­sit is good; as if A. promises to perform such a Voiage within a time limited, and the breach assigned was that he did not go the Voiage: The Defendant pleads, that the Plaintiff exoneravit eum, and upon Demurrer it was held good, 22 Ed. 4. 40. 3 H. 6. 37.

Object. If it be objected, that 'tis no Consideration to pay a just Debt; for if 30 s. were due, of right it ought to be paid, and that can be no reason upon which to ground a Promise.

Answ. 'Tis a good Consideration to pay Mony on the day which the party is bound to upon Bond, because it is paid without Suit or Trouble, which might be otherwise a loss to the Plaintiff.

But in this Case here is an express Agréement, and before there was only a Contract in Law, Cro. Car. 8. Flight versus Crasden.

Curia. North Chief Iustice. It has béen always taken that if there be an Assumpsit to do a thing, and there is no breach of the promise, that it may be discharged by Parol; but if it be once broken, then it cannot be discharged without Release in a writing.

In this Case there are two Demands in the Declaration, to which the Defendant pleads an Accompt stated, so that the Plain­tiff can never after have recourse to the first Contract which is thereby merged in the Accompt. If A. sells his Horse to B. for 10 l. and there being divers other dealings between them; if they come to an accompt upon the whole, and B. is found in arrear 5 l. A. must bring his insimul computasset, for he can never recover upon an Indebitatus Assumpsit; and of the same Opinion were the other three Iustices; and though it was not said ad instantiam of the Plaintiff that he promised, yet it was adtunc & ibidem, and so should be intended that the Defendant made the Promise at the instance of the Plaintiff, and so Iudgment was given for the De­fendant.

Daws versus Sir Paul Pindar.

COvenant to pay a Sum of Mony within a year after one Nokes shall be admitted to the Office of Secretary to the Governour of Barbadoes. Barbadoes, whether governed by the Laws of England, so that the Statute of buying Of­fices ex­tends to it.

The Defendant pleads that that the Governour of Barbadoes and the Council there have power of probate of Wills, and granting of Administration; that the Secretary belongs and is an Officer to the said Governour and Council as Register, and is concerned about the registring the said Wills, and so his Office concerns the Administration of Iustice; and then sets forth that this Co­venant, upon which the Plaintiff brought his Action, was entred into upon a corrupt Agréement, and for that reason void.

The Plaintiff replies (protestando) that this Office concerned not the Administration of Iustice; and protestando that here was no corrupt Agréement; pro placito he saith, that Barbadoes is extra quatuor Maria, and was always out of the Allegeance and power of the Kings of England till King Charles the First reduced that Island to his Obedience, which is now governed by Laws made by him, and not by the Laws of England.

The Defendant rejoyns protestando that this Island was go­verned by the Laws of England long before the Reign of King Charles the First, and confesses it to be extra quatuor Maria, but pleads that before King Charles had that Island, King James was seised thereof, and died such a day so seised; after whose death it descended to King Charles the First, as his Son and Heir; and that he being so seised, 2 Julii in the third year of his Reign granted it under the great Seal of England to the Earl of Carlisle and his Heirs at such a Rent, absque hoc that King Charles the First ac­quired this Island by Conquest.

Baldwyn Serjeant demurred, for that the Traverse is ill;Ex parte Quer. for the most material thing in the Pleadings was, whether Barbadoes was governed by the Laws of England, or by particular Laws of their own? And if not governed by the Laws of England then the Statute made 5 E. 6. cap. 16. concerning the Sale of Offices doth not extend to this place.

He said that it was but lately acquired, and was not governed by the Laws of England, that it was first found out in King James his Reign, which was long after the making of that Statute, and therefore could not extend to it.

The Statute of 1 E. 6. cap. 7. Enacts, That no Writ shall abate if the Defendant (pending the Action) be created a Duke or Earl, &c. And it has béen doubted whether this Act extended to a Ba­ronet, being a Dignity created after the making thereof, Sir Simon Bennets Case, Syd. 40. Cro Car. 104.

Statutes of England extend no more to Barbadoes than to Scotland or Virginia, New England, Isles of Jersey and Gernsey; 'tis true, an Appeal lies from those Islands to the King in Coun­cil here, but that is by Constitutions of their own. No Statute did extend to Ireland till Poyning's Law, nor now unless named. In Barbadoes they have Laws different from ours, as, That a Deed shall bind a Feme Covert, and many others.

Ex parte Def. Seys Serjeant contra. He agreed that the Traverse was ill, and therefore did not indeavour to maintain it, but said there was a departure betwéen the Declaration and the Replication; for in the Declaration the Plaintiff sets forth that Nokes was admitted Secretary apud Insulam de Barbadoes, viz. in Parochia Sancti Martini in Campis; and in the Replication he sets forth, that this Isle was not in England, which is in the nature of a departure; as Debt sur obligat' 1 Maii, the Defendant pleads a Release 3 Maii; the Plaintiff replies primo deliberat' 4 Maii; 'tis a departure; for he should have set forth that the Bond was 4 Maii primo de­liberat', Quaere, Bro. Departure 14.

So in a Quare Impedit the Bishop pleaded that he claimed nothing but as Ordinary. The Plaintiff replies Quod tali die & anno he presented his Clerk, and the Bishop refused him; the Bishop rejoyns, that at the same day another presented his Clerk, so that the Church became litigious; and the Plaintiff surre­joyns that after that time the Church was litigious he again pre­sented, and his Clerk was refused; this was a Departure, Bro. Departure.

So likewise as to the place, the Tenant pleads a Release at C. The Demandant saith that he was in Prison at D. and so would avoid the Release as given by Duress; and the Tenant saith that he gave it at L. after he was discharged and at large, 40 E. 3. Bro. 32. 1 H. 6.3.

The Plaintiff might have said that Nokes was admitted here in England, without shewing it was at Barbadoes; for the Grant of the Office of Secretary might be made to him here under the Great Seal of England, as well as a Grant of Administration may be made by the Ordinary out of his Diocess.

2. Except. Viz. By the Demurrer to the Rejoynder; the Plaintiff hath confessed his Replication to be false in another re­spect, for by that he hath owned it: The Defendant hath pleaded [Page 47] that King James was seised of this Island, and that it descended to King Charles, &c. and so is a Province of England; whereas before he had only alledged that it was reduced in the time of King Charles, his Son, and so he hath falsified his own Repli­cation.

And besides, this is within the Statute of 5 Ed. 6. for the De­fendant saith, that the Plaintiff hath admitted Barbadoes to be a Province of England; and it doth not appear that ever there was a Prince there, or any other person, who had Dominion except the King and his Predecessors; and then the Case will be no more than if the King of England take possession of an Island, where before there was vacua possessio, by what Laws shall it be govern­ed? certainly by the Laws of England.

This Island was granted to the Earl of Carlisle and his Heirs under a Rent payable at the Exchequer, for which Process might issue, and it descends to the Heirs of the Earl at the Common Law. And if it be objected, that they have a Book of Constitutions in Barbadoes; that is easily answered; for 'tis no Record, neither can the Iudges take any notice of it.

'Tis reasonable that so good a Law as was instituted by this Statute of Edw. 6. should have an extensive construction, and that it should be interpreted to extend as well to those Plantations as to England,; for if another Island should be now discovered it must be subject to the Laws of England. Curia advisare vult.

Lever versus Hosier.

THIS was a special Verdict in Ejectment.Recovery suffered of Lands in a Liberty, passeth Lands in a Vill distinct within that Liberty. Mod. Rep. 206. Postea. The Case upon the Pleading was: viz. Sir Samuel Jones being Tenant in Tail of Lands in Shrewsbury and Cotton being within the Liberties of Shrewsbury, suffers a Common Recovery of all his Lands lying within the Liberties of Shrewsbury; and whether the Lands in Cotton, which is a distinct Vill, though within the Liberties, shall pass, was the Question.

And it was argued by Serjeant Jones, that they should not pass; for though Lands would pass so by a Fine, because it was the Agreement of the Parties; yet in a Recovery 'tis otherwise, be­cause more certainty is required therein.

But in Fines no such Certainty is required, and therefore a Fine de Tenementis in Golden-Lane hath beén held good though neither Vill, Parish or Hamlet is mentioned.

Cro Eliz. 693. Cro. Jac. 574. Addison and Ottoway, Postea.But there being a Vill called Walton in the Parish of Street, and a Fine being levyed of Land in Street, the Lands in Walton did not pass, unless Walton had béen an Hamlet of Street, and the Fine had beén levied of Lands in the Parish of Street.

And the reason of this difference is, because in Fines there are Covenants, which, though they are real in respect of the Land, yet 'tis but a personal Action, in which the Land is not demanded ex directo; but in a Recovery greater preciseness is required, that being a Praecipe quod reddat where the Land it self is demanded, and the Defendant must make Answer to it, Cro. Jac. 574 5 Co. 40. Dormer's Case.

The WordAntea 41. Liberty properly signifies a Right, Priviledge or Franchise, but improperly the extent of a place, Hill. 22 & 23 Car. 2. Rot. 225. B. R. Waldron's Case, Hutton 106. Baker and John­son's Case.

Liberties in Iudgment of Law are incorporeal, and therefore 'tis absurd to say that Lands which are corporeal shall be therein contained.

They are not permanent having their existence by the Kings Letters Patents, and may be destroyed by Act of Parlia­ment; they may also be extinguish'd, abridged or increased, and a Vinire fac of aRast. Ent. 267. Liberty or Franchise is not good; 'tis an equivo­cal Word and of no signification, that is plain, and therefore is not to be used in real Writs, Rast. Entr. 382.

There is no Praecipe in the Register to recover Lands within a Liberty, neither is there any authority in all the Law Books for such a Recovery; and therefore if such a thing should be allowed many inconveniences would follow; for a good Tenant to the Praecipe would be wanting, and the intent of the Parties could not supply that.

But Barton Serjeant said that this Recovery would pass the Lands in Cotton; for as to that purpose, there was no difference betweén a Fine and a Recovery;Postea. 2 Roll. Abr. 20 Godb. 440. they are both become Common Assurances, and are to be guided by the agreément of the Parties, Cro. Car. 270, 276.

'Tis true, a Fine may be good of Lands in an Hamlet, Lieu conus or Parish, 1 H. 5. 9. Cro. Eliz. 692. Jones 301. Cro. Jac. 574. Monk versus Butler. Yet in aGodb. 440. contra. Scire Fac̄ to have Execution of such Fine the Vill must be therein mentioned, Bro. Brief 142.

The demand must be of Lands in a Vill, Hamlet, or at farthest in a Parish, Cro. Jac. 574.

And of that Opinion was the whole Court (absente Ellis) who was also of the same Opinion at the Argument, and accordingly in Michaelmas Term following Iudgment was given, that by this Recovery the Lands in Cotton did well pass.

And North Chief Iustice denied the Case in Hutton 106. Postea. to be Law, where 'tis said, A Common Recovery of Lands in a Lieu conus is not good; and said that it had béen long disputed whe­ther a Fine of Lands in a Lieu conus was good; and in King James his time the Law was settled in that Point, that it was good; and by the same reason a Recovery shall be good, for they are both amicable Suits and Common Assurances, and as they grew more in practice the Iudges have extended them farther.

A Common Recovery is held good of an Advowson; and no Reasons are to be drawn from the Visne, or the Execution of the Writ of Seisin, because 'tis not in the Case of adver­sary Procéedings, but by Agréement of the Parties, where 'tis to be presumed each knows the others meaning.

Indeed the Cursitors are to blame to make the Writ of Entry thus, and ought not to be suffered in such practice.

Where a Fine is levied to two, the Fée is always fixed in the Heirs of one of them; but if it be to them and their Heirs, yet 'tis good, though incertain; but a Liberty is in the nature of a Lieu conus, and may be made certain by Averment.

The Iury in this Case have found Cotton to be a Vill in the Liberty of Shrewsbury, and so 'tis not incorporeal.

Alford versus Tatnel.

JVdgment against two, who are both in Execution,Mod. Rep. 170. and the Sheriff suffers one to escape; the Plaintiff recovers against the Sheriff, and hath satisfaction, the other shall be discharged by an Audita Querela.

Osbaston versus Stanhope.

General Replication good.DEBT upon Bond against an Heir, who pleaded that his Ancestor was seised of such Lands in Fee, and made a Settlement thereof to Trusteés, by which he limited the Vses to himself for Life, Remainder to the Heirs Males of his Body, Remainder in Feé to his own right Heirs, with power given to the Trusteés to make Leases for threé Lives or 99 years.

The Trustées made a Lease of these Lands for 99 years, and that he had not Assets praeter the Reversion expectant upon the said Lease.

The Plaintiff replies protestando that the Settlement is frau­dulent, pro placito saith that he hath Assets by discent sufficient to pay him; and the Defendant demurrs.

Ex parte Def. Newdigate Serjeant. The Barr is good, for the Plaintiff should not have replied generally that the Defendant hath Assets by discent, but should have replyed to the praeter, Hob. 104.

Like the Case of Goddard and Thorlton Yelv. 170. where in Trespas the Defendant pleaded that Henry was seised in Fee, who made a Lease to Saunders, under whom he derived a Title, and so justifies.

The Plaintiff replies, and sets forth a long Title in another person, and that Henry entred and intruded.

The Defendant rejoyns, that Henry was seised in Fée and made a Lease ut prius, abs (que) hoc that intravit & se sic intrusit; and the Plaintiff having demurred, because the Traverse ought to have been direct, viz. abs (que) hoc quod intrusit, and not abs (que) hoc that Henry intravit, &c. it was said the Replication was ill; for the Defendant having alledged a Seisin in Fée in Henry, which the Plaintiff in his Rejoynder had not avoided, but only by sup­posing an intrusion which cannot be of an Estate in Fée, but is properly after the death of Tenant for Life; for that reason it was held ill.

Ex parte Quer.But Pemberton Serjeant for the Plaintiff held the Replication to be good. The Defendants Plea is no more than Riens per descent; for though he pleads a Reversion, 'tis not chargeable, because 'tis a Reversion after an Estate Tail, and therefore the pleading the Lease is not material; for if it were a Lease expired yet the Plaintiff could not recover, and therefore the praeter is wholly idle and insignificant, of which the Plaintiff ought not to [Page 51] take notice, because the Lands, which come under the praeter, are not chargeable.

The Plaintiff hath traversed, as he ought, what is material, and is not bound to take notice of any thing more.

And of that Opinion was the whole Court, and held the praeter idle, and the general Replication good; and Iudgment was given for the Plaintiff.

Prince versus Rowson, Executor of Atkinson.

EXecutor de son tort cannot retain.Executor de son tort can­not retain. The Defendant in this Case pleaded, that the Testator owed his Wife dum sola 800 l. and that he made his Will; but doth not shew that he was there­by made Executor; and therefore having no Title he became Exe­cutor de son tort, for which cause his Plea was held ill; and Iudgment was given for the Plaintiff.

Norris versus Palmer.

THE Plaintiff brought an Action on the Case against the De­fendant for causing him falso & malitiose to be indicted for a Common Trespass in taking away one hundred Bricks,Case after an acquit­tal upon an Indictment for Trespas. by which means he was compelled to spend great Sums of Mony, and that upon the Trial the Iury had acquitted him.

The Defendant demurred to the Declaration; and Barrel Ser­jeant said for him, that the Action would not lie; and for a Pre­sident in the Case he cited a like Iudgment between Langley ver­sus Clerk in the King's Bench, Trin. 1658. 2 Sid. 100. In which Action the Plaintiff was indicted for a Battery with an intent to ravish a Woman, and being acquitted brought this Action; and the Court after a long Debate gave Iudgment for the Plaintiff; but agréed that the Action would not lie for a Common Trespass, as if it had beén for the Battery only; but the Ravishing was a great scandal, and for that reason the Plaintiff recoverd there; but this is an ordinary Trespass, and therefore this Action will not lie.

But Pemberton Serjeant held that the Action would lie because it was in the nature of a Conspiracy,Sid. 463, 464. 1 Cro. 291. and done falsly and maliti­ously knowing the contrary, and thereby the Plaintiff was put to great Charges, all which is confessed by the Demurrer.

And the Case cited on the other side is express in the Point; for the Court in that Case could take notice of nothing else but the Battery; for the intent to ravish was not traversable, and therefore it was idle to put it into the Indictment.

It is now settled that an Action on the Case will lye for a ma­litious Arrest where there is no probable cause of Action; and this Case is stronger than that, because in the one the party is only put to Charges, and in the other both to Charges and Disgrace, for which he hath no remedy but by this Action.

The Court agreéd that the Action would lie after an acquittal upon an Indictment for a greater or lesser Trespass: The like for citing another into the Spiritual Court without cause,3 Ass. 13. 1 Rol. Abr. 112. pl. 9. Postea. F. N. B. 116. D. 7 E. 4. 30. 10 H. 4. Fitz. Conspiracy 21. 13. 3 E. 3. 19.

The Defendants Council consented to wave the Demurrer, and plead and go to Tryal.

The King versus Turvil.

The King presented, being inti­tuled by a Simoniacal Contract, his Presen­tee shall not be removed though the Symony is pardoned. QUare Impedit. The King was intituled to a Presenta­tion by the Statute of 31 Eliz. cap. 6. because of a Si­moniacal Contract made by the rightful Patron, and he according­ly did present.

Then comes the Act of General Pardon, 21 Jac. cap. 35. by which under general Words (it was now admitted) that Sy­mony was pardoned: In which Act there is a beneficial Clause of Restitution: viz. The King giveth to his Subjects all Goods, Chattels, Debts, Fines, Issues, Profits, Amerciaments, Forfeitures and Sums of Mony forfeited by reason of any Offence, &c. done.

And whether the Kings Presenteé or the Patron had the better Title was the Question.

This Case was only mentioned now, but argued in Michael­mas Term following by Serjeant Jones, that the Kings Presenteé is intituled; he agreed that Symony was pardoned, but not the consequences thereof; for 'tis not like the Case where a Stroak is given at one time and death happens at another; if the Stroak, which is the first offence, is pardoned before the death of the party, that is a Pardon likewise of the Felony; for 'tis true the Stroak being the cause of the death, and that being pardoned all the na­tural Effects are pardoned with the Cause.

But legal Consequences are not thus pardoned; as if a Man is outlawed in Trespass, and the King pardons the Outlawry, the Fine remains, 6 E. 4. 9. 8 H. 4. 21. 2 Roll. Abr. 179.

In this Act of Pardon, there are words of Grant, but the Presentation is not within the Clause of Restitution; for 'tis an Interest and not an Authority vested in the King, and there­fore a thing of another nature than what is intended to be re­stored; because it is higher, and shall not be comprehended amongst the general words of Goods and Chattels, &c. which are things of a lower nature, and are all in the personality, Cro. Car. 354.

Conyers Serjeant, argued for the Title of the Patron,Ex parte Def. and said, that there were three material Clauses in this Act.

1. A Pardon of the Offences therein mentioned in general and particular words.

2. That all things not excepted shall be pardoned by general words, as if particularly named.

3. The Pardon to be taken most favourably for the Subject; upon which Clauses it must necessarily follow, that this Offence is pardoned, and then all the consequences from thence dedu­ced will be likewise pardoned; and so the Patron restored to his Presentation, for all Charters of Restitution are to be taken favourably, Pl. Com. 252.

The Presentation vests no legal Right in the Presentee; for in the Case of the King, 'tis revocable after Institution and before Induction, Co. Lit. 344. b.

So likewise a second Presentation will repeal the first, Rolls 353. And if the Kings Presentee dies before Induction, that is also a Revocation; if therefore the Party hath no legal Right by this Presentation, and the King by the Simony had only an authority to present, and no legal Interest vested, then by this Act he hath revoked the Presentation, and the right Patron is restored to his Title to present.

The Court were all of Opinion (absente Ellis) That the Kings Presentee had a good Title, and by consequence the Patron had no right to Present this turn; for here was an Interest vested in the King; like the Case where the King is intituled to the Goods of a Felo de se, by Inquisition, and then comes an Act of Indempnity, that shall not divest the King of his Right.

But where nothing Vests before the Office found, a Pardon before the Inquisition extinguishes all Forfeitures, as it was resol­ved in Tomb's Case.

So if the Pardon in this Case had come before the Pre­sentation, the Party had been restored Statu quo, &c.

The King can do no more, the Bishop is to do the rest; neither is the Presentation revoked by this Act; it might have been revoked by implication in some Cases; as where there is a second Presentation; but such a general revocation will not do it: and Iudgment was given for the Plaintiff, and a Writ of Error brought, but the Cause was ended by Agreement.

Hill versus Pheasant.

Gaming at several meetings, whether within the Statute.AN Action of Debt was brought upon the Statute of 16 Car. 2. cap. 7. made against deceitful and disorderly Gaming, which Enacts, That if any person shall play at any Game, other than for ready Mony, and shall lose any Sum, or other thing played for, above the Sum of 100 l. at any one time or meeting, up­on Tick, and shall not then pay the same; that all Contracts and Securities made for the payment thereof shall be void, and the person winning shall pay treble the Mony lost.

It happened that the Defendant won 80 l. at one meeting, for whcih the Plaintiff gave Security; and another meeting was appointed, and the Defendant won 70 l. more of the Plaintiff; being in all above 100 l. And if this was within the Statute, was the Question.

The like Case was in the Kings-Bench, Trin. 25 Car. 2. Rot. 1230. between Edgberry and Roseberry; and in Michaelmas Term following, this Case was argued, and the Court was divided, which the Plaintiff perceiving,Anonymus, Postea. desired to discontinue his Action; but the better Opinion was, that it was not within the Sta­tute, though if it had been pleaded, That the several meetings were purposely appointed to elude the Statute,Sid. 394. in might be otherwise.

Calthorp versus Heyton.

Traverse not good; viz. Abs (que) hoc quod le­gitimo modo oneratus.IN Replevin; The Defendant avowed, for that the King be­ing seised in Fee of a Mannor, and of a Grange, which was parcel of the Mannor, granted the Inheritance to a Bishop, reserving 33 l. Rent to be yearly issuing out of the whole, and alledges a Grant of the Grange from Sir W. W. (who claimed under the Bishop) to his Ancestors in Fee; in which Grant there was this Clause:

Viz. If the Grantee or his Heirs shall be legally charged by Distress, or with any Rent due to the King or his Successors, [Page 55] upon account of the said Grange, that then it should be lawful for them to enter into Blackacre, and distrein till he or they be satisfied.

And afterwards the Grantee and his Heirs were, upon a Bill Exhibited against them in the Exchequer, decreed to pay the King 4 l. per Annum, as their proportion out of the Grange, for which he distreined, and so justified the taking.

The Plaintiff pleads in barr to the Avowry, and traverseth, that the Defendant was lawfully charged with the said Rent; and the Defendant demurred.

Baldwyn Serjeant, maintained the Avowry to be good,Ex parte Def. ha­ving alledged a legal charge, and that the Barr was not good; for the Plaintiff traverseth quod Defendens est ligitimo modo oneratus, which being part matter of Law, and part likewise matter of Fact is not good; and therefore if the Decree be not a legal charge, the Plaintiff should have demurred.

But on the other side, it was argued by Seys Serjeant,Ex parte Quer. That the Avowry is not good; because the Defendant hath not set forth a legal charge, according to the Grant, which must be by Distress, or some other lawful way, and that must be intended by some execution at Common Law; for the coactus fuit to pay, is not enough; a Suit in Equity is no legal disturbance, Moor 559. The same Case is Reported in 1 Brownl. 23. Selby versus Chute.

Besides, the Defendant doth not shew any Process taken out, or who were Parties to the Decree, and a Que estate in the Case of a Bishop is not good, for he must pass it by Deed.

North and the whole Court: A Rent in the Kings Case lies in Render, and not in Demand, and after the Rent day is past, he is oneratus, and the Decree is not material in this Case; for the charge is not made thereby, but by the Reserva­tion, for payment whereof the whole Grange is chargeable.

The King may distrain in any part of the Land, he is not bound by the Decree to a particular place; that is in favour only to the Purchasor, that he should pay no more than his pro­portion.

As to the Que estate, the Defendant hath admitted that, by say­ing bene & verum est, that Sir W. W. was seised.

The Traverse is ill, and Iudgment was given for the Avow­ant.

Vaughan versus Wood.

Trespass ju­stified, for taking cor­rupt Victu­alls. Mod. Rep. 202. TRespass for taking Beef; The Defendant pleads a Cu­stom to choose Supervisors of Victuals at a Court Leet; That he was there chosen, and having viewed the Plaintiffs Goods, found the Beef to be corrupt, which he took and burned.

The Plaintiff demurrs, for that the Custom is unreasonable, and when Meat is corrupt and sold, there are proper remedies at Law, by Action on the Case, or presentment at a Leet, 9 H. 6. 53. 11 Ed. 3. 4. 6. Vide Stat. 18 Eliz. cap. 3.

But the Court held it a good Custom, and Iudgment was gi­ven for the Defendant; the Chief Iustice being not clear in it.

Chapter of Southwel versus Bishop of Lincoln.

Grant of next Avoid­ance, not bind the Successor. Mod. Rep. 204.IN a Quare Impedit, the Question upon pleading was, Whe­ther the Grant of the next Avoidance by the Chapter, was good or not to bind the Successor.

The doubt did arise upon the Statute of 13 Eliz. cap. 10. which was objected not to be a publickYelv. 106. Act, because it extends only to those who are Ecclesiastical persons; or if it should be ad­judged a publick Law, yet this is not a good Grant to bind the Successor; for though the Grant of an Avoidance is not a thing of which any profit can be made, yet it is anCro. Eliz. 441. Heredi­tament within the meaning of that Statute, by which, among other things, 'tis Enacted, That all Grants, &c. made by Dean and Chapter, &c. of any Lands, Tythes, Tenements, or Heredi­taments, being parcel of the Possessions of the Chapter, other than for the Term of 21 Years, or 3 Lives, from the time of the making the said Grant, shall be void.

But it was agreed, by the Court, to be a general Law; like the Statute of Non Residency, which hath been so ruled; and that this Presentment or Grant of the next Avoidance, was not good, because it was made by those who were not Head of the Corporation, and it must be void immediately, or not at all; and Iudgment was given accordingly.

Threadneedle versus Lynam.

THere being two Mannors usually let for 67 l. 1 s. 5 d. by the year;Lease by a Bishop and more than the old Rent re­served, good. Mod. Rep. 203. a Bishop lets one of them for 21 years reserving the whole Rent, and whether this was a good Lease within the Statute of 1 Eliz. cap. 19. was the Question, which depended upon the construction of the Words therein, viz. All Leases to be void upon which the old accustomed Rent is not reserved; and here is more than the old Rent reserved; and this being a pri­vate Act is to be taken literally.

North Chief Iustice agreed that private Acts, which go to one particular thing are to be interpreted literally; but this Statute extends to all Bishops, and so may be taken according to Equity; and therefore he and Wyndham and Atkins Iustices held the Lease to be good: But this Case was argued when Vaughan was Chief Iustice, and he and Iustice Ellis were of another Opinion.

DE Term. Sancti Mich. Anno 27 Car. II. in Communi Banco.

Thorp versus Fowle.

No more Costs than Damages. NOTA. In this Case the Court said that since the Sta­tute, which gives no more Costs than Damage, 'tis usual to turn Trespass into Case.

Cooper versus Hawkeswel.

Words. IN an Action upon the Case for these Words: I dealt not so unkindly with you when you stole a Stack of my Corn: Per Curiam, the Action lies.

Escourt versus Cole.

Words.IN an Action on the Case for Words laid two ways; the last Count was Cumque etiam, which is but a recital, and du­bitatur whether good.

Sharp versus Hubbard.

Six Months for proving of a Sug­gestion.THE six Months in which the Suggestion is to be proved must be reckoned according to the Calendar Months, and 'tis so computed in the Ecclesiastical Court.

Crowder versus Goodwin.

Justificati­on by Pro­cess out of inferiour Court.IN Assault and Battery and false Imprisonment, as to the Assault, &c. the Defendant pleads Not-Guilty; and as to the Im­prisonment he justifies by a Process out an inferiour Court, and upon Demurrer these Exceptions were taken to his Plea.

[Page 59] 1. The Defendant hath set forth a Precept directed Servienti ad Claven, and 'tis not said Ministro Curiae.

2. 1 Rol. 484. Cro. Car. 254. Dyer 262. b. It was to take the Plaintiff and have him ad proximam Cu­riam, which is not good; for it should have beén on a day cer­tain, like Adams and Flythe's Case, Cro. Jac. 571. Mod. Rep. 81. where a Writ of Error was brought upon a Iudgment in Debt by Nil dicit in an inferiour Court; and the Error assigned was, That after Imparlance a day was given to the Parties till the next Court; and this was held to be a Discontinuance, not being a day certain.

3. 'Tis not said ad respondend' alicui.

4. Nor that the Action arose infra Burgum.

5. The Precept is not alledged to be returned by the Officer.

To all which it was answered, That a Pleint is but a Remem­brance and must be short, Rast. 321. and when 'tis entred the Of­ficer is excused; for he cannot tell whether 'tis infra Squibb versus Hole antea 29. Jurisdictio­nem or not.

And as to the first Exception, a Precept may be directed to a private person, and therefore Servienti ad Clavem is well enough.

Then as to the next Exception, 'tis likewise well set forth to have the Plaintiff ad proximam Curiam; for how can it be on a day certain when the Iudge may adjourn the Court de die in diem?

Then ad respondendum, though 'tis not said alicui 'tis good, though not so formal; and 'tis no Tort in the Officer, but tis to be intended that he is to answer the Plaintiff in the Plaint.

As to the fourth Exception the Defendant sets forth that he did enter his Plaint secundum consuetudinem Curiae Burgi, and when the Plaintiff declared there, he shewed that the Cause did arise infra Jurisdictionem.

And as to the last, The Officer is not punishable though he do not return the Writ. The end of the Law is that the Defendant should be present at the day; and if the Cause should be agreed, or the Plaintiff give a Release when the Defendant is in custody, no Action lies against the Officer if he be detained afterwards.

But the Chief Iustice doubted, that for the second Exception the Plea was ill, for it ought to be on a day certain, and likewise it ought to be alledged infra Jurisdictionem.

But the other threé Iustices held the Plea to be good in omni­bus, and said that the inferior Court had a Iurisdiction to issue out a Writ, and the Officer is excusable though the cause of Action did not arise within the Iurisdiction, which ought to be shewn on the other side: And so Iudgment was given for the Defendant.

Snow and others versus Wiseman.

Traverse necessary where o­mitted, is substance.TRespass for taking of his Horse: The Defendant pleads that he was seised of such Lands, and intitles himself to an Her­riot.

The Plaintiff replies that another person was jointly seised with the Defendant, Et hoc paratus est verificare.

The Defendant demurs generally, because the Plaintiff should have traversed the sole Seisin.

But it was said for him that the sole Seisin néed not be traver­sed,Sid. 300. because the matter alledged by him avoids the Barr without a Traverse.

In a Suggestion upon a Prohibition for Tythes, the Plaintiff entituled himself by Prescription under an Abbot, and shews the Vnity of Possession by the Statute of 31 H. 8. by which the Lands were discharged of Tythes.

Yelv. 231. Pl. Com. 230. 231.The Defendant pleads that the Abbey was founded within time of Memory, and confesseth the Vnity afterwards, and the Plea was held good; for he néed not traverse the Prescription, be­cause he had set forth the Foundation of the Abbey to be within time of Memory, which was a sufficient avoiding the Plaintiffs Title, Yelv. 31.

The Plaintiff therefore having said enough in this Case to avoid the Barr; if he had traversed it also it would have made his Re­plication naught,Cro. Jac. 221. like the Case of * Bedel and Lull, where in an Ejectment upon a Lease made by Elizabeth, the Defendant pleads that before Elizabeth had any thing in the Lands, James was seised thereof in Fee, and that it descended to his Son and so derives a Title under him, and that Elizabeth was seised by Abatement.

The Plaintiff confesses the Seisin of James, but that he devised it to Elizabeth in Fee, and makes a Title under her abs (que) hoc that she was seised by Abatement; and upon a Demurrer the Replica­tion was held ill, because the Plaintiff had made a good Title be­fore the Devise to James; and so neéd not traverse the Abatement.

The Chief Iustice held that the omitting of a Traverse where ne­cessary is matter of substance, and the concluding with hoc paratus est verificare, when it should be Et hoc pet̄ quod inquiratur ꝑ patri­am, or de hoc ponit super patriam or vice versa is matter of substance, and the wanting a Traverse is of the same nature; and here the Traverse of the sole Seisin is necessary because it is issuable: And of the same Opinion were the other Iudges (absente Ellis) and therefore Iudgment was given for the Defendant.

Wilson versus Ducket.

TRespass for taking of his Corn;Distress not good of Corn in Shocks. the Defendant pleads Not-Guilty to all but 360 Sheaves made into Stacks, which the Defendant distrained for Rent and Services in arrear and due to him. The Plaintiff demurrs, for that they could not be di­streined in Sheaves: A Distress of them is lawful damage feasant or in a Cart for Rent, but not here.

Per Jones Serjeant, it is naught,Ex parte Quer. because nothing is to be distrain­ed, but what may be known and returned in the same condition as when taken; and therefore a Replevin will not lye of Mony out of a Bag or Chest, and in this Case theAltered by Statute 2 Will. & Mar. Corn cannot be returned in the same condition, because a great deal may be lost in the car­rying of it home, 18 H. 3. 4. 2 H. 4. 15. 22 E. 4. 50. 11 H. 5. 14. 1 Inst. 47. Roll. 667. pl. 17. And of that Opinion was all the Court.

Curtis versus Bourn.

IN Wast, Tenant in Common need not joyn in an Action of Waste. one Tenant in Common brings an Action of Waste alone; and the Question upon the Pleadings was, whether he should not have joyned with his Companion; and for an authority that they should joyn in this Action, Scroggs Serjeant cited Rolls Abr. 2 part 825. pl. 11. where it is said, that if a Rever­sion be granted to two, and the Heirs of one of them, yet they must joyn in an Action of Waste.

But it was answered by Pemberton Serjeant, That Rolls cited that Case in his Abridgment, out of the 1 Inst. 53. which seémed to be the Opinion of my Lord Coke, grounded upon the Authorities there cited in the Margin, which he said did not war­rant any such Opinion.

The difference upon the Books is, where Tenant in Com­mon demands an intirety, the Writ shall abate, and therefore in the Case of Hill and Hart, Cro. Eliz. 357. where the Plaintiff had only a third part of a Reversion in Common, it was held he should not have an Action of Waste alone,Co. Lit. 197. b. Moor 374. because it would be very inconvenient, that the third part should be delivered in Exe­cution.

Co. Lit. 198. Yelv. 161.'Tis true, they shall joyn in the personalty, where Dama­ges are to be recovered, but they shall always sever in the real­ty; and therefore in this Case, Waste being a mixt Action, and savouring of the realty, that being the more worthy, draws over the personalty with it, and therefore the Action by one alone is good; but if they had made a Lease for years, then they should have joyned in an Action of Waste: And of that Opini­on was the whole Court.

Anonymus.

Tout temps prist, no good Plea after Impar­lance.THE Question was, whether tout temps prist was a good Plea, after a general Imparlance.

And it was insisted for the Plaintiff, That this Plea was repugnant, because the imparlance proves the contrary.

'Tis true, in an Action of Debt upon a Bond, such Plea is good after an Imparlance, because 'tis to save the Penalty; and 'tis held in Dyer f. 300.Cro. Jac. 627. contra. b. That uncore prist alone, with­out saying tout temps, in such case is good, though Leonard, the Custos Brevium, and who was a Learned Man, was there of another Opinion.

But when a single Duty is demanded, and the party is intitu­led to damages for non-payment, in such case the Plea of tout temps prist is not good.

And though it was objected, that the difference is, that the Defendant after Imparlance should not plead any thing contrary to the matter in the Declaration to which he had imparled; as Ba­stardy to an Action brought by an Heir, &c.

Yet the Court were all of Opinion, That the Plea was not good, because 'tis inconsistent with the Imparlance; for petit licentiam interloquendi, is no more in English, than for the De­fendant to say, I will take time and resolve what to do; which is contrary, to be always ready.

DE Termino Sancti Hill. Anno 27 & 28 Car. II. in Communi Banco.

Stubbins versus Bird & alios.

IN an Action of Trover and Conversion; The Defen­dant con­cludes in A­batement, it shall be in his election to have it taken in Barr. Mod. Rep. 117. the Plaintiff de­clared for taking 600 Load of Oar.

The Defendant pleads, That the Plaintiff never had any thing in the said 600 Load of Oar, nisi conjunctim & pro in diviso, with two others, and so concludes in Abatement.

The Plaintiff replies, That J. S. was seised in Fee of a Close, in which this Oar was digged; and being so seised, he dyed; after whose death the said Close descended to A. and B. his two Daughters, and Co-heirs; and that the Plaintiff mar­ried one of them, and the other was also married: and so the Plaintiff and the other Husband and their Wives, were seised in Right of their said Wives of this Close.

The afterwards, and before the Action brought, 2000 Load of Lead Oar digged out of the said Close, and laid there in heaps; and then a Partition was made by Deed, of the said Close and the Oar, and 1000 Load was allotted to one Sister and her Husband, and the other 1000 Load was allot­ted to the Plaintiff, per quod he became solus possessionat̄ of the said 1000 Load in severalty; and being so possessed, the Defendant found 600 Load, parcel of the said 1000 Load, and converted it, Absque hoc that the Plaintiff had any thing after the Partition conjunction with any other person.

The Defendant rejoyns, that at the time of the conversion the Plaintiff had nothing but conjunction with the other, as be­fore.

1. And the Plaintiff demurred,Ex parte Quer. for that the Defendant ought to have traversed the Partition; for though the Possession was joynt, the Partition had made it several, by which the joynt Possession [Page 64] was confessed and avoided, and therefore the Traverse good; like the Rule laid down in my Lord Hobert 104. in Digby and Fitzherberts Case, Trespass, tali die; the Defendant con­fesses it, but pleads a Release of all Actions, and traverseth all Trespasses after; so here the Plaintiff hath traversed the joynt possession after the Partition.

2. The Rejoynder is a departure from the Plea, which is, that the Plaintiff never had any thing but joyntly with others; and the Rejoynder is, that at the time of the conversion he was joyntly possessed; which is a manifest difference in point of time, and such as will make a Departure, 33 H. 14. Bro. Departure 28. 13.

Ex parte Def.It was argued by Serjeant Hopkins for the Defendant, that the Replication was not good; for the Plaintiff therein had al­ledged a Partition by Deed, and doth not say, hic in Curia pro­lat̄: And in all Cases where a Man pleads a Deed, by which he makes himself either party or privy, he must produce it in Court: As where the Defendant justifies in Trespass, that be­fore the Plaintiff had any thing. One Purfrey was seised in Fee of the place where, &c. And by Indenture, &c. demised it to Corbet, excepting the Wood, &c. Habendum, for the Life of Ann, and covenanted quod licitum foret for the said Corbet to take House-boot, &c. That he assigned his Interest to Ann, and that the Defendant, as her Servant, took the Trees; and upon Demurrer the Plea was held naught, because (though a Servant) having justified by force of a Covenant, he did not shew the Indenture, 2 Cro. 291. Purfrey versus Grimes. 6 Rep. Bellamy's Case.

1 Leon. 309. Rol. Rep. 20.If a thing will pass without a Deed, yet if the Party pleads a Deed, and makes a Title thereby, he must come with a * pro­fert hic in Curia.

As to the Objection, That there was a Departure, he argu­ed to the contrary: For the Defendant in his Rejoynder insists only on that which was most material; and the Plaintiff in his Replication had given him occasion thus to Rejoyn; and though he had left out some of the time mentioned in the Bar, yet the would hurt the Pleadings, because a fair Issue was tendred; for if at the time of the conversion he was joyntly sei­sed, he could not be entituled to the Action alone.

Judgment.And afterwards, in Trinity-Term following, the Chief Iu­stice delivered the Opinion of the Court, That the Plea was good in Barr, though pleaded in Abatement, and the Defen­dant [Page 65] hath election to plead either in Barr or Abatement; the nature of a Plea in Abatement, is to intitle the Plaintiff to a better Writ, but here the Defendant shews, that the Plaintiff hath no cause of Action, and so it shall be taken to be in Barr: And it hath been expressly resolved, That where the Plea is in Abatement, if it be of necessity, that the Defendant must disclose matter of barr, he shall have his election to take it either by way of Barr or Abatement, 2 Roll. Rep. 64. Salkil versus Shilton.

So, where Waste was brought in the tenet, the Tenant pleads a Surrender to the Lessor, and demands Iudgment, if he should be charged in the tenet, because it should have been in the tenuit, and this was held a good Plea, 10 H. 7.11. Where­upon Iudgment was given for the Defendant; the Chief Iustice at first doubting about the Departure, and advised the Plaintiff to wave his Demurrer, and to take issue upon payment of Costs.

Daws versus Harrison.

THE Plaintiff intitles himself, as Administrator to Daws, Admini­stration pleaded, and not loci istius ordina­rius, good. and shews that Administration was granted to him by the Official of the Bishop of Carlisle, but did not alledge him to be loci istius Ordinarius; And

Jones Serjeant demurred to the Declaration, because it did not appear that the Official had any Iurisdiction, Pl. Com. 277. a. 31. H. 6. 13. Fitz. Judg. 35. 22 H. 6. 52. 36 H. 6. 32, 33. Sed non allocatur. For the whole Court were of Opinion, That the De­claration was good, and that he shall be intended to have Iurisdi­ction; but if it had been in the Case of a Peculiar, Cro Jac. 556. Palm. 97. Sid. 322. it cannot be intended that they have any authority, unless set forth: And so Iudgment was given for the Plaintiff.

Mason versus Caesar.

IN Trespass for pulling down of Hedges;Commoner may abate Hedges made upon his Com­mon. the Defendant pleads that he had right of Common, in the place where, &c. and the Hedges were made upon his Common, so that he could not in ea parte enjoy his Common in tam amplo modo, &c. and so justifies the pulling them down.

And they were at issue, whether the Defendant could enjoy the Common in tam amplo modo, &c. and there was a Verdict for the [Page 66] Defendant, and Iudgment being staied 'till moved on the other side.

Scroggs Serjeant moved in Arrest of Iudgment, because the Plea was ill, and the Issue frivolous; for 'tis impossible that he should have Common where the Hedges are:5 Rep. 100. 9 Rep. 55. And therefore the Defendant ought to have brought an Action upon the Case, or a quod permittat. He cannot abate the Hedges, though he might have pulled down so much as might have opened a Way to his Common.

2 Cro. 195, 229.The Lord hath an Interest in the Soil, and a Commoner hath no authority to do any thing but to enter and put in his Beasts, and not to throw down Quick-Set Hedges, for that is a shelter to his Beasts.

But the Court were of Opinion, That the Defendant might abate the Hedges, for thereby he did not meddle with the Soil, but only pulled down the erection; and the Book of 29 E. 3. 6. was express in this point. Vide 17 H. 7. 10. 16 H. 7. 8. 33 H. 6. 31. 2 Ass. 12. And nothing was said concerning the Plea, and so the Defendant had Iudgment.

Hocket and his Wife versus Stiddolph and his Wife.

Verdict cu­red a bad Declarati­on.IN an Action of Assault and Battery brought by the Plaintiff and his Wife, against the Defendant and his Wife; the Iury found quoad, the beating of the Plaintiffs Wife only, that the Defen­dants are Guilty, and quoad resid' they find for the Defendants.

And it was moved in arrest of Iudgment, by Scroggs Serjeant, That the Declaration is not good, because the HusbandYelv. 106. Drury versus Dennis. Sid. 376. joyns with the Wife, which he ought not to do upon his own shew­ing; for as to the Battery made upon him, he ought to have brought his Action alone; and the finding of the Iury will not help the Declaration, which is ill in substance, and thereupon Iudgment was staied; but being moved again the next Term, the Court were all of Opinion, That the Declaration was cured by the Verdict, and so Iudgment was given for the Plain­tiff.

Goodwin qui tam, &c. versus Butcher.

AN Information was brought upon the Statute of 32 H. 8.Buying a pretended Title. cap. 9. made against buying pretended Titles, which gives a Forfeiture of the value of the Land purchased, unless the Sel­ler was in possession within a year before the Sale.

After Verdict for the Plaintiff, it was moved in arrest of Iudg­ment, by Serjeant Barrell, because the Information had set forth the right of these Lands purchased to be in J. S. and that the Son of J. N. had conveyed them by general words,2 Anders. 57. as descend­ing from his Father; which Title of the Son, the Defendant bought; whereas, if in truth the Title was in J. S. then nothing descended from the Father to the Son, and so the Defendant bought nothing.

Sed non allocatur; for if such construction should be allowed, there could be no buying of a pretended Title within the Statute, unless it was a good Title; but when 'tis said, as here, that the Defendant entred and claimed colore of that Grant or Con­veyance, which was void, yet 'tis within the Statute, so the Plain­tiff had his Iudgment.

Wine versus Rider & al.

TRespass against five, Quare clausum fregerunt, Traverse immaterial. and took Fish out of the Plaintiffs Several and Free-Fishery.

Four of them pleaded Not Guilty, and the fifth justified, for that one of the other Defendants is seised in Fee of a Close ad­joyning to the Plaintiffs Close; and that he and all those &c. have had the sole and separate Fishing in the River which runs by the said Closes, with liberty to enter into the Plaintiffs Close, to beat the Water, for the better carrying on of the Fishing; and that he, as Servant to the other Defendant, and by his Command did enter, and so justified the taking, absque hoc that he is Guilty aliter vel alio modo.

The Plaintiff replies, That he did enter de injuria sua pro­pria, absque hoc That the Defendants Master hath the Sole Fish­ing.

The Defendant demurs;Ex parte Def. and Newdigate Serjeant argued for him, That the Iustification is good, for when he had made a lo­cal [Page 68] justification,2 Cro. 45, 372. he must traverse both before and after, as he has done in this Case.

2. The Plaintiffs Replication is ill, for he ought not to have waved the Defendants Traverse, and force him to accept of ano­ther from him; because the first is material to the Plaintiffs Ti­tle, and he is bound up to it, Hob. 104.

3. There was no occasion of a Traverse in the Replication; for where a Servant is Defendant, de injuria sua propria is good, with a Traverse of the Command.

Ex parte Quer.But on the Plaintiffs side Serjeant Baldwin held the Defen­dants Traverse to be immaterial; for having answered the De­claration fully in alledging a Right to the sole fishing, and an Entry into the Plaintiffs Close,2 Cro. 372. 'tis insignificant afterwards to traverse that he is guilty aliter vel alio modo.

Then the matter of the Plea is not good, because the Defen­dant justifies by a Command from one of the other Defendants, who have all pleaded Not-guilty, and they must be guilty if they did command him, for a Command will make a Man a Trespasser.

Curia.The Court were all of Opinion, that Iudgment should be given for the Plaintiff: For as to the last thing mentioned, which was the Matter of the Plea, they held it to be well enough; for theMires and Solebay, Post. Servant shall not be ousted of the advantage which the Law gives him by pleading his Masters Command.

Then as to the Replication 'tis good, and the Plea is naught with the Traverse; for where the Iustification goes to a time and place not alledged by the Plaintiff, there must be a Traverse of both.

In this Case the Defendant ought to have traversed the Plain­tiffs free fishing as alledged by him in his Declaration, which he having omitted, the Plea for that reason also is ill, and so Iudgment was given for the Plaintiff.

DE Termino Paschae Anno 28 Car. II. in Communi Banco.

Lee versus Brown.

IN a Special Verdict in Ejectment: The Case was this:Where re­puted Lands shall pass under gene­ral words. viz. There were Lands which re vera were not parcel of a Man­nor, and yet were reputed as parcel.

A Grant is made of the Mannor and of all Lands reputed parcel thereof; and whether by this Grant and by these general Words those Lands would pass, which were not parcel of the Mannor, was the Question.

This Term the Lord Chief Iustice delivered the Opinion of the Court, That those Lands would pass;Postea. Cro. Car. 308. and they grounded their Opinions upon two Authorities in Co. Entr. fol. 330, 384. The King versus Imber & Wilkins.

If the Iury had found that the Lands in question had beén re­puted parcel of the Mannor, it would not have passed, had they found no more; because the Reputation so found might be intend­ed a Reputation for a small time, so reputed by a few, or by such as were ignorant and unskilful.

But in this Case 'tis found that not only the Lands were re­puted parcel, but the reason why they were reputed parcel; for the Iury have found that they were formerly parcel of the Mannor, and after the division they were again united in the possession of him who had the Mannor, which being also Copyhold, have since béen de­mised by Copy of Court Roll togethet with the Mannor; and these were all great marks of Reputation, and therefore Iudg­ment was given that the Lands did well pass, 2 Roll. Abr. 186. Dyer 350.

Wakeman versus Blackwel.

Common Recoveries how to be pleaded. QUare Impedit. The Case was; The Plaintiff entituled himself to an Advowson by a Recovery suffered by Te­nant in Tail; in pleading of which Recovery he alledges two to be Tenants to the Praecipe, but doth not shew how they came to be so, or what Conveyance was made to them, by which it may appear that they were Tenants to the Praecipe; and after search of Presidents as to the form of pleading of Common Recoveries, the Court inclined that it was not well pleaded, but delivered no Iudgment.

Searl versus Bunion.

Justificati­on where good.IN Trespass for taking of his Cattel: The Defendant pleads that he was possessed of Blackacre pro termino diversorum annorum adtunc & adhuc ventur̄; and being so possessed the Plaintiffs Cattle were doing damage, and he distrained them Da­mage fesant, ibidem, and so justifies the taking, &c.

The Plaintiff demurrs, and assigns specially for cause that the Defendant did not set forth particularly the commencement of the Term of years, but only that he was possessed of an Acre for a Term of years to come; and regularly where a Man makes a Title to a particular Estate, in pleading he must shew the par­ticular time of the Commencement of his Title, that the Plain­tiff may replie to it.

Curia.The Chief Iustice and the whole Court held that the Plea was good, upon this difference; where the Plaintiff brings an Action for the Land or doing of a Trespass upon the Land, he is supposed to be in possession; but if he will justifie by vertue of any particular Estate, he must shew the Commencement of that Estate, and then such pleading as here will not be good.

But when the Matter isYelv. 75. Cro. Car. 138. collateral to the Title of the Land, and for any thing which appears in the Declaration the Title may not come in question, such a Iustification as this will be good.

In this Case no Man can tell what the Plaintiff will reply; 'tis like the Cases of Inducements to Actions, which do not require such certainty as is necessary in other Cases.

So where an Action is brought for a Nusance, and he intitles himself generally by saying he is possessionat' pro termino anno­rum, 'tis well enough, and he need not to set forth particularly the Commencement, because he doth not make the Title his Case; for which reason Iudgment was given for the Defendant.

Crosier versus Tomlinson Executor.

IN an Action on the Case:Statute of Limitations of personal Actions ex­tends to In­debitatus, Assumpsit. The Plaintiff declared that the Defendants Testator being in his Life time (viz. such a day) indebted to the Plaintiff in the Sum of 20 l. for so much Mony before that time to his use had and received, did assume and pro­mise to pay the same when he should be thereunto required; and that the Testator did not in his Life time, nor the Defendant since his death, pay the Mony though he was thereunto required.

The Defendant pleads that the Testator did not at any time within six years make such promise.

The Plaintiff replies that he was an Infant at the time of the promise made, and that he came not to full Age till the year 1672. and that within six years after he attained the Age of one and twenty years he brought this Action, and so takes advantage of the promise in the Statute of21 Jac. c. 16. Limitations, that the Plaintiff shall have six years after the disability, by Infancy, Coverture, &c. is removed.

And the Defendant demurred by Serjeant Rigby, Ex parte Def. and the rea­son of his Demurrer was, because in the said Proviso Actions on the Case on Assumpsit are omitted.

This Act was made for quieting of Estates and avoiding of Suits as appears by the Preamble, and therefore shall be taken strictly; there is an enumeration of several Actions in the Proviso, and this is Casus omissus and so no benefit can be taken of the Proviso.

In a Writ of Error upon a Iudgment brought 4 Car. 1. in the Court of Windsor, the Iudges held that an Action on the Case forCro. Car. 163, 513, 535. Debt upon Escape is out of the Statute, 1 Sand 37. But an Action for Escape is not, Sid. 305. So is Debt for not setting out of Tithes; for these are not grounded upon any Con­tract. Cro. Car. 513. Hut. 109. slandering of a Mans Title is out of this Act, because such an Action was rare, and not brought without special damages: But Hide Chief Iustice doubted, 1 Cro. 141.

The Law-makers could not omit this Case unadvisedly, be­cause 'tis within those sorts of Actions enumerated by this Act.

This Promise was made to the Plaintiff when he was but a day old, and it would be very hard now after so many years to charge the Executor.

Ex parte Quer.But Turner Serjeant argued, that though an Indebitat̄ assump­sit is not within the express words of the Proviso, yet 'tis with­in the intent and meaning thereof; and so the Rule is taken in 10 Co. 101. in Bewfages Case, quando verba statuti sunt specialia, ratio autem generalis, statutum intelligendum est gene­raliter.

And this is a Statute which gives a general remedy, and the mischief to the Infant is as great in such Actions of Inde­bitatus assumpsit, as other Actions, and therefore 'tis but reaso­nable to intend, that the Parliament which hath saved their Rights in Debts, Trovers, &c. intended likewise, that they should not be barred in an Indebitatus Assumpsit.

In 2 Anders. 55. Smith versus Colshil: Debt was brought upon a Bond; the Defendant there pleaded the Statute of the 5 E. 6. of selling of Offices; the words of which are, viz. That every Bond to be given, for money or profit for any Office, or De­putation of any Office mentioned in the Statute, shall be void against the Maker. In that case the Bond was given to pro­cure a Grant of the Office, and also to exercise the same: now though this was not within the express words of the Statute, yet the Bond was held void; and if it should be otherwise, the mischiefs which the Statute intended to remedy would still continue; and therefore the intent of the Law-makers in such cases, is to be regarded, for which reason if Actions of Inde­bitatus Assumpsit are within the same mischief with other Actions therein mentioned,2 Anders. 123, 150. Cor. Car. 533. 19 H. 8. 11. such also ought to be construed to be within the same remedy.

But he took the Case ofCro Car. 245. Swain versus Stephens to rule this Case at Bar, in which Case this very Statute was plead­ed to an Action of Trover, and the Plaintiff replied, that he was beyond Sea; and upon a Demurrer to the Replication, the Court held Trover to be within the Statute, it being na­med in the Paragraph of Limitation of personal Actions, which directs it to be brought within the time therein limited; that is to say, all Actions on the Case within six years; and then enumerates several other Actions, amongst which Trover is omitted, yet the Court were then of Opinion, that Trover is im­plied in those general words.

Curia.And of that Opinion was the Chief Iustice, and Wyndham and Atkyns Iustices, That upon the whole frame of the Act, it was strong against the Defendant; for it would be very strange that the Plaintiff in this Case, might bring an Action of Debt, and not an Indebitatus Assumpsit.

When the Scope of an Act appears to be in a general sense, the Law looks to the meaning, and is to be extended to par­ticular Cases within the same reason; and therefore they were of Opinion, That Actions of Trespass, mentioned in the Sta­tute, are comprehensive of this Action, because 'tis a Trespass upon the Case, and the words of the Proviso save the Infants Right in Actions of Trespass.

And therefore, though there are not particular words in the enacting Clause, which relate to this Action, yet this Proviso restrains the severity of that Clause, and restores the Common Law, and so is to be taken favourably; and this Action being within the same reason, with other Actions therein mentioned, ought also to be within the same remedy.

But Iustice Ellis doubted, whether Actions of Trespass could comprehend Actions on the Case; and that when the Parlia­ment had enumerated Actions of Trespass, Trover, Case for Words, &c. If they had intended this Action, they would have named it; he said he was for restoring the Common Law as much as he could, but doubted much, whether this Proviso did help the Plaintiff: But Iudgment was given for the Plain­tiff.

Doctor Samways versus Eldsly.

COvenant. The Plaintiff declares,Where Co­venants are mutual, and where not. That by Indenture made between him and the Defendant, reciting that there were divers Controversies between them, as well concerning the right, title and occupation of Tythes, arising and renewing upon the Fréehold of the Defendant, in T. and upon other Lands held by the Defendant, by a Lease for years from the Plaintiff, under the annual Rent of, &c. and concerning the arrearages of Rent due upon that demise, as concerning other matters; for the determination thereof, the said Parties did by the said Indenture bind themselves, in consideration of 12 d. given to each other, to observe the Arbitration of an Arbitra­tor, indifferently to be chosen between them, to arbitrate, or­der and judge between them, de & super praemissis; and the Plaintiff and Defendant mutually covenanted to do several other matters.

That the Arbitrator did thereupon afterwards Award, and the Defendant did Covenant with the Plaintiff, that in consideration of the Plaintiffs sealing and delivering (at the Defendants re­quest) [Page 74] one part of a Lease for years (to the Award annexed) for the Rent therein reserved, that the Defendant should pay so much Mony for the Tythes.

That it was also Awarded by the said Arbitrator, and the De­fendant did covenant, that he would be accomptable to the Plaintiff for all such arrearages of Rent, Tythes, and Com­position-Mony for Tythes, as should be arising and renewing upon the said Land, &c. according to such a value per An­num, whereof the Defendant could not lawfully discharge him­self.

And the Plaintiff avers, That he hath observed all the Co­venants on his part, and that the Defendant hath not obser­ved all the Covenants on his part, and assigns for breach, that he hath not accounted with him for all arrears of Tythes and Composition-Mony for Tythes arising upon the Lands in, &c. and that he hath requested him to accompt, which he hath re­fused.

The Defendant pleads Actio non: For he says, that 'tis true, there was such an Indenture, as in the Declaration is set forth, and such a Covenant to be accountable as, the Plaintiff hath declared.

But saith in eadem Indentura agreatum fuit ulterius & pro­visum, that the Plaintiff should allow and discount upon the Ac­count, all Sums of Mony for Parsons Dinners, at the request of the Plaintiff, and for his concerns laid out and disbursed by the Defendant, and such other Sums which he had directi­on to lay out; and that such a day paratus fuit & obtulit se & ad­huc paratus est, to account for all arrears of Rent, &c. if the Plaintiff would discount, &c.

That such a day the Plaintiff would not, and often after refused, and yet doth refuse to allow upon such accompt all such Sums of Mony as the Defendant, at the request, and for the concerns of the Plaintiff, had laid out, and this he is rea­dy to aver; and then he avers, that after, &c. on such a day he did expend several Sums of Money for the Plaintiff, which were just and reasonable to be allowed by the Plaintiff, upon ac­compt made by him.

To this Plea the Plaintiff demurred, and the Defendant joyned in Demurrer which was argued by Turner Serjeant for the Plaintiff, and by Serjeant Seys for the Defendant.

This was a bad Plea, for 'tis a Rule in all Law Books, that every Plea ought to answer the matter which is charged up­on the Defendant,Ex parte Quer. in the Declaration, which is not done here, [Page 75] because the Defendant doth neither aver that he did accompt, or confess or avoid, or traverse it, which he ought to do, after the Plaintiff had alledged a request to accompt, and a refusal.

'Tis an absolute Covenant which charges him to be accompta­ble; and not if the Plaintiff would allow Parsons Dinners, &c. for 'tis impossible that the Plainntiff can make any such al­lowance, till the Defendant hath accompted; for how can there be a discounting without an Accompt?

If the Plaintiff had told him before the Accompt, that he would not allow any thing upon the Accompt, this would not have been prejudicial to bart him of his Action, so as it had been before the request: For if a Man makes a Feoffment in Fee, upon condition that if the Feoffor pay 100 l. at Michaelmas, the Feoffment shall be void; and before Michaelmas the Feoffee tells him that he will not receive the Money at that time; this shall not prejudice him, because tis no refusal in Law.

The Defendant in this Case is to do the first act, viz. to Accompt; and when that is neglected by him, it shall never prejudice him who is to do a subsequent act, 5 Co. 19, 20. Higginbottoms Case, 22 & 23 Hallin and Lambs Case.

One Covenants to make an Estate in fee, at the Costs of the Covenantee; the Covenantor is to do the first act, viz. to let him know what Conveyance he will make.

The like Case was in this Court, between Twiford and Buck­ly, upon an Indenture of Covenants, wherein one of the par­ties did Covenant to make a Lease for the Life of the Cove­nantee, and for two other Lives, as he should name, and the Covenantor was to give possession.

The breach assigned was, that the Defendant had not made Livery and Seisin, and upon performance pleaded, the Plain­tiff did demux, and upon great debate it was resolved that the Covenant was not broken, because the Plaintiff had not per­formed that which was first to be done on his part, viz. to name the Lives.

It may be objected, that these Covenants have a relation one to the other; and so non-performance of the one, may be plead­ed in bar to the other.

But to that he answered, they are distinct and mutual Co­venants, and there may be several Actions brought against each other. The Case ofStiles 186. 187. Ware and Chappel comes up to this point. Ware was to raise 500 Soldiers, and bring them to such a Port, and Chappel was to find Shipping, for which he sued upon the Covenant, though the other had not raised the Soldiers; for that can be only alledged in mitigation of Damages, and is [Page 76] no excuse for the Defendant, and it was adjudged, that this was not a condition precedent, but distinct and mutual Covenants, upon which several Actions might be brought.

This cannot be a Condition precedent, for the Defendant pleads, & ulterius agreat̄ & provisum est that the Plaintiff shall discompt and reimburse the Defendant; and here the word pro­visum est doth not make a Condition but a Covenant, 27 H. 8. 14, 15. Bro. Condition 7.

There is another fault in the Plea, for the Defendant averrs, that the Plaintiff hath not reimbursed him several Sums of Mo­ny, which is altogether incertain, for it doth not appear what is due, 28 H. 8. Dyer 28. 9 Ed. 4. 16. 12 H. 8. 6. a.

Ex parte Def.But it was argued for the Defendant, that he need not Tra­verse the Accompt.

As to the first Objection made, that the Plea is not good, be­cause it doth not answer the Declaration, the Rule as to that purpose is generally good; but then the Plaintiff must tell all his Case, which if he omits, he must then give the Defendant leave to tell where his omission is.

Sometimes a thing which belongs properly to another, may be pleaded in bar, or discharge, to avoid circuity of Actions; as one Covenant may be pleaded to another, 1 H. 7. 15. 20 H. 7. 4. So where the Lesseé is to be dispunishable of waste, he may plead it to a Writ of waste.

The Books note a difference where the Covenant is one or two Sentences; for in the first case one Covenant may be plead­ed in discharge of another, but not in the last, Keilway 34.

'Tis true, if the second Covenant had been distinct and inde­pendent, it could not have been thus pleaded; but in this Case 'tis not said, that the Covenantor, for himself, his Executors and Administrators doth Covenant, &c. but ulterius agreat̄ & provisum est; so that as tis penned provisum est makes a Con­dition, and then the sense is, I will accompt if you will discompt, and if you refuse to discompt, I cannot be charged, Dyer 6.

'Tis inutilis labor to make up an accompt If the other will not allow what he ought, if there be an Annuity pro consilio im­penso, &c. and he will not pay the Mony, the other is not to be compelled to give his advice, Fitzh. Annuity 27. 25 E. 2. An­nuity 44.

Curia.The Chief Iustice and the whole Court were of Opinion that Iudgment should be given for the Plaintiff; for Arbitrations, Wills and Acts of Parliament are to be taken according to the [Page 77] meaning of the Parties, and Damages are to be given according to the merit of the Case. In this Case the Defendant is bound to accompt upon request, and to pay what Mony is due upon the Accompt; and 'tis an impertinent question for the De­fendant to ask him to make allowance for Parsons Dinners be­fore they come to accompt: 'Tis as if a Bailiff should say to his Lord, I have laid out so much Mony, and I will not accompt with you unless you will allow it; this is a Capitulation before­hand, and is very insignificant by way of discharge.

They have each a remedy upon these mutual Covenants, and the provisum & agreat̄ est doth not amount to a Condition, but is a Covenant; and Iudgment was given accordingly.

Iustice Ellis said he had a Manuscript Report of the Case of Ware and Chappel, which he said was adjudged upon great Debate.

Stoutfil's Case.

PRohibition. Tythes not to be paid for Brick or Pidgeons. It was agreed clearly that no Tythes ought to be paid for Brick, because 'tis part of the Soil, and so it has been often adjudged: And it was also said that Tythes shall not be paid for Pidgeons, unless it be by special Custom.

Columbel versus Columbel.

THE Plaintiff brought an Action of Debt upon a Bond of 500 l. Award pleaded un­der Seal and not un­der Hand, not good. The Defendant demands Oyer of the Bond and Condition, which was to observe an Award of A. B. Arbitrator indifferently chosen to determine all manner of Controversies, Quarrels and Demands concerning the Title of certain Lands; so as the said Award were made and put into writing under the Hand and Seal of the Arbitrator, &c. and then he pleads, that the Arbitrator made no Award.

The Plaintiff replies an Award by which such things were to be done, and sets it forth (in haec verba) under the Seal of the Arbitrator.

The Defendant rejoyns that the Arbitrator made no Award under his Hand and Seal according to the Condition of the Bond.

The Plaintiff demurrs; for that the Defendant ought to plead the Award under the Hand as well as the Seal of the Arbitrator; [Page 78] for when he produces it in Court, as he doth by a profert hic in Curia, he must plead it formally, as well as produce it; and Iudg­ment was given for the Plaintiff.

Norris versus Trist.

Livery se­cundum for­mam Char­tae, where good.IN a Special Verdict in Ejectment: The Case was, A Deéd is made to threé, Habendum to two for their Lives, Re­mainder to the third for his Life, and Livery and Seisin is made to all thrée secundum formam Chartae.

And whether the Livery so made, as if they had all Estates in possession, whereas in truth one of them had but an Estate in Re­mainder was good, was the Question.

On the one side it was said by Serjeant Seys that possession in this Case was delivered according to the form of the Deéd with­in mentioned, which must be to two for Life, Remainder to the third person, and Livery and Seisin being only to accomplish and perfect the Common Assurances of the Land ought to be taken favourably, ut res magis valeat quam pereat; and therefore if a Feoffment be made of two Acres, and a Letter of Attorny to give Livery, and the Attorny only enters into one Acre, and gives Livery secundum formam Chartae both the Acres pass,Dyer 131 40. Coke Litt. 52. a.

But on the other side Serjeant Maynard said that there was something more in this Case than what had béen opened; for there was a Letter of Attorney made to give Livery to two, and in­stead of doing that he makes Livery to them all, which is no good Execution of his Authority, and therefore no Livery was made, the Authority not being pursued.

As to the Case in the 1st Institutes my Lord Coke errs very much there in that discourse, for in saying, that if there be a Feoffment of two Acres, and a Letter of Attorney to take pos­session of both, and he maketh Livery of both, but taketh posses­sion but of one, and that both pass, 'tis not Law; but if the Authority be general, as to make Livery and Seisin, and he take possession of one, and then makes Livery of more secundum for­mam Chartae, that is good; and this is the difference taken in the Books, 5 Ed. 3. 65. 3 Ed. 3. 32. 43 Ed. 3. 32. 27 H. 8. 6.

The Remainder Man in this Case is a méer Stranger to the Livery.

There is also a manifest difference betwéen a Matter of Interest, and an Execution of an Authority; for in the first Case it shall be construed according to the Interest which either hath, but an Authority must be strictly pursued.

The Court were all of Opinion that the Livery in this Case was good to two for their Lives, Remainder to the third person.Curia. And the Chief Iustice said, that whatever the ancient Opinions were about pursuing Authorities with great exactness and nicety, yet this Matter of Livery upon Endorsements of Writing was al­ways favourably expounded of later times, unless where it plainly appeared that the Authority was not pursued at all;Sid. 428. as if a Letter of Attorney be made to thrée joyntly and severally, two cannot execute it, because they are not the Parties delegated, they do not agreé with the Authority: And Iudgment was given ac­cordingly.

Richards versus Sely.

THIS was a Special Verdict in Ejectione firmae for Lands in the County of Cornwal: The Case was this; viz. Covenant made to en­joy a Copy­hold de anno in annum 'tis a Lease, and so a Forfeiture.

Thomas Sely was seised of the Lands in question for life, according the Custom of the Mannor of P. and he together with one Peter Sely were bound in a Bond to a third person for the payment of 100 l. being the proper Debt of the said Thomas, who gave Peter a Counter-bond to save himself harmless.

And that Thomas being so seised did execute a Déed to Peter as a Collateral Security to indempnifie him for the payment of this 100 l. by which Deéd after a recital of the Counterbond given to Peter, and the Estate which Thomas had in the Lands, he did covenant, grant and agree for himself, his Executors, Ad­ministrators and Assigns with the said Peter, that he, his Executors and Administrators should hold and enjoy these Lands from the time of the making of the said Déed for seven years, and so from the end of seven years to seven years, for and during the term of 49 years, if Thomas should so long live.2 Cro. 301.

In which Déed there was a Covenant, that if the said 100 l. should be paid, and Peter saved harmless according to the Condi­tion of the said Counterbond, then the said Déed to be void.

The Question was whether this being in the Case of Copyhold Lands will amount to a Lease thereof, and so make a Forfeiture of the Copyhold Estate, there being no Custom to warrant it.

Ex parte Quer.This Case was argued this Term by Serjeant Pemberton for the Plaintiff; and in Trinity Term following by Serjeant May­nard on the same side, who said that this was not a good Lease to entitle the Lord to a Forfeiture. It hath béen a general Rule, that the Word Covenant will make a Lease, though the Word Grant be omitted; nay a Licence to hold Land for a time with­out either of those Words will amount to a Lease, much more when the Words are to 2 Cro. 92, 398. Noy 14. 1 Roll. Abr. 848, 849. Cro. Car. 207. have, hold and enjoy his Land for a Term certain; for those are Words which give an Interest, and so it hath béen ruled in Tisdale and Sir William Essex's Case, which is reported by several, and is in Hob. 35. and 'tis now setled that an Action of Debt may be brought upon such a Covenant.

And all this is regularly true in the Case of a Fréehold: But if the construing of it to be a Lease will work a Wrong, then 'tis only a Covenant or Agreément and no Interest vests, and therefore it shall never be intended a Lease in this Case, because 'tis in the Case of a Copyhold Estate; for if it should, there would be a Wrong done both to the Lessor and Lessée; for it would be a For­feiture of the Estate of the one, and a defeating of the Security of the other.

It has beén generally used in such Cases to consider what was the intention of the Parties, and not to intend it a Lease against their meaning, for which there is an express Authority, 2 Cro. 172. in the Case of Evans and Thomas, Noy 128. in which Howel covenants with Morgan to make a Conveyance to him of Land by Fine, provided that if he pay Morgan 100 l. at the end of thirtéen years, that then the use of the Fine shall be to the Congnisor, and covenants that Morgan shall enjoy the said Lands for thirtéen years, and for ever after if the 100 l. be not paid.

The Assurance was not made, and this was adjuged no Lease for thirtéen years, because it was the intent of the Parties to make an Assurance only in the nature of a Mortgage, which is but a Covenant.

And this appears likewise to be the intention of the Parties here, because in the very Deed 'tis recited that the Lands are Co­pihold.

It also sounds directly in Covenant, for 'tis that Peter shall or may enjoy without the lawful let or interruption of the Lessor.

All Agreements must be construed secundum subjectam materiam if the Matter will bear it, and in most Cases are governed by the intention of the Parties and not to work a Wrong; and therefore if Tenant in Tail makes a Lease for Life, it shall be taken for his own Life; and yet if before the Statute of Entails he made such [Page 81] Lease, he being then Tenant in Fée-simple, it had been an Estate during the Life of the Lessée; but when the Statute had made it unlawful for him to bind his Heir, then the Law construes it to be for his own Life, because otherwise it would work a Wrong,Hob. 276. Co. Lit. 42.

So in this case it shall not amount to a Lease for the manifest inconveniency which would follow, but it shall be construed as a Covenant, and then no injury is done.

On the Defendants part it was argued by Serjeant Newdi­gate, that though this was in the Case of a Copyhold,Ex parte Def. that did not make any difference; for the plain meaning of the Parties was to make a Lease: But where the Words are doubtful and such as may admit of diverse constructions, whether they will amount to a Lease or not, there they shall be taken as a Covenant to prevent a Forfeiture.

So also if they are only Instructions, as if a Man by Articles sealed and delivered is contented to demise such Lands, and a Rent is reserved, and Covenants to repair, &c.

Or if one covenants with another to permit and suffer him to have and enjoy such Lands,1 Rol. Abr. 848. these and such like Words will not amount to a Lease, because (as hath béen said) the intention of the Parties is only to make it a Covenant; but here the Words are plain and can admit of no doubt.

But for an Authority in the Point the Lady2 Cro. 301. Mountagues Case was cited, where it was adjudged, that if a Copyholder make a Lease for a year warranted by the Custom, & sic de anno in annum during ten years, 'tis a good Lease for ten years and a Forfeiture of the Copyhold Estate, Vide Hill. 15 & 16 Car. 2. Rot. 233. the Case of Holt and Thomas in this Court.

The Court inclined that it was a good Lease,Curia. and by con­sequence a Forfeiture of the Copihold, and that a Licence in this Case could not be supposed to prevent the Forfeiture, be­cause if that had been, the Iury would have found it; the meaning of the Parties must make a Construction here and that seems very strong that 'tis a good Lease; but they gave no Iudgment.

Wilkinson versus Sir Richard Lloyd.

Where the Parties shall join in an Action, where not.THE Defendant covenanted that he would not agreé for the taking the Farm of the Excise of Beer and Ale for the County of York without the Consent of the Plaintiff and another, and the Plaintiff alone brought this Action of Covenant, and assigns for breach, the Defendants agréeing for the said Ex­cise without his Consent, upon which the Plaintiff had a Verdict and 1000 l. damages given.

And Serjeant Pemberton moved in Arrest of Iudgment, for that an Action of Covenant would not lie in this Case by the Plaintiff alone, because he ought to have joined with the other, both of them having a joint Interest, and so is Slingsby's Case 5 Co. If a Bond is made to two joyntly and severally they must both join in an Action of Debt, so here 'tis a joint contract, and both must be Plain­tiffs: So also if one covenants with two to pay each of them 20 l. they must both join.

'Tis true, in Slingsbies Case 'twas held if an Assurance is made to A. of White Acre, and to B. of Black Acre, and to C. of Green Acre, and a Covenant with them and every of them, these last Words make the Covenant several.

But here is nothing of a several interest, no more than that one covenants with two, that he will not join in a Lease with­out their Consent, so that their Interest not being divided the Co­venant shall be entire and taken according to the first Words, to be a joint Covenant; and the rather, because if the Plaintiff may maintain this Action alone, the other may bring a second Action, and the Defendant will be subject to entire damages which may be given in both.

Judgment.But the Court was of another Opinion, that here was no joint Interest but that each of the Covenantees might maintain an Action for his particular damages, or otherwise one of them might be remediless; for suppose one of them had given his Con­sent that the Defendant should farm this Excise, and had secret­ly received some satisfaction or recompence for so doing, is it rea­sonable that the other should lose his remedy who never did con­sent, For which reason the Plaintiff had his Iudgment.

Page versus Tulse Mil' & alios Vic' Midd'.

THE Plaintiff brought an Action on the Case against the Sheriff for a false Return,Case lies not against the Sheriff for return­ing a Cepi Corpus & paratum ha­beo, though the Party doth not appear. Mod. Rep. 239. Ellis and Yar­borough, post. setting forth that he sued a Ca­pias out of this Court directed to the Sheriff of Middlesex, by vertue whereof he arrested the Party, and took Bail for his ap­pearance, and at the day of the Return of the Writ the She­riff returned Cepi corpus & paratum habeo, but he had not the Body there at the Return of the Writ, but suffered him to escape.

The Defendant pleads the Statute of 23 H. 6. cap. 10. and saith that he took Bail, viz. two sufficient Sureties, and so let him go at large, &c.

The Plaintiff demurrs; and whether this Action lies against the Defendant was the Question, who refused to proceed against him by way of Amerciament, or to take an Assignment of the Bail-Bond.

This Case depended in Court several Terms. It was argued by Serjeant Pemberton and Serjeant Coniers for the Plaintiff, and by Serjeant George Strode for the Defendant; and Iudg­ment was given in Easter Term in the 29th year of this King.

In the Argument for the Defendant that this Action would not lie it was considered,Ex parte Def.

1. What the Common Law was before the making of this Statute.

2. What alteration thereof the Statute had made.

At the Common Law Men were to appear personally to ans­swer the Writ, the Form of which required it, and no Attorney could be made in any Action till Edw. 1. de gratia speciali gave leave to his Subjects to appoint them and commanded his Iudges to admit them, 2 Inst. 377. After the Arrest the Sheriff mighttie the Party to what Conditions he pleased, and he might keep him till he had complied with such Conditions, which often ended in taking extravagant Bonds, and sometimes in other Oppres­sions, for remedy whereof this Statute was made, in which the Clause that concerns this Case is, viz. If the Sheriff return upon any person Cepi Corpus or Reddidit se, that he shall be chargeable to have the Body at the day of the Return of the Writ in such form as before the making the Act; so that as to the Return of the Writ this Statute hath made no alteration, the Sheriff being bound to have the Party at a day as before.

All the alteration made of the Common Law by this Sta­tute is that the Sheriff now is bound to let the Party out of Pri­son upon reasonable Sureties of sufficient persons, which before he was not obliged to do; and it would be a Case of great hardship upon all the Sheriffs of England, if they (being com­pellable to let out the Party to Bail) should also be subject to an Action for so doing, because they have him not at the day; so that the intent of the Law must be (when it charges the Sheriff to have the Body at the Return) that he should be liable to a Pe­nalty if the Party did not then appear, not to be recovered by Action but by Amerciament.

Cro. Jac. 286.The Security directed by this Act is to be taken in the Sheriffs own Name; 'tis properly his business and for his own Indempnity, and therefore it is left wholly in his power; for which reason no Action will lie against him for taking insufficient Bail, that being to his own prejudice, in which the Plaintiff is no wise concerned; for if that had beén intended by the Act some Provision would have beén made as to his being satisfied in the sufficiency of the Persons.

When the Security is thus taken, if the Defendant doth not appear at the Return of the Writ, the Plaintiff by Amerciaments shall compel him to bring in the Body, or to assign the Bond, either of which is a full satisfaction and as much as is required.

If the Sheriff refuse to take2 Sand. 59, 154 1 Roll. Abr. 807, 808. Cro. Eliz. 460, 852. Noy 39. Moor 428. Sid. 23. sufficient Sureties, when offered, he is liable to an Action on the Case at the Suit of the Defen­dant for his refusal; and it would be very unreasonable to enforce him to have the Party in Court at the Return, when he is ob­liged under a Penalty to let him at large.

This Action is grounded upon a false Return, when in truth there is no Return made, or if any, 'tis a very imperfect Return till the Body be in Court; and this is the reason why the Court will not allow it, but amerce the Sheriff till he make the Party appear; 'tis not like a compleat Return, as a Non est inven­tus, or the Return of Nulla Bona upon a Fi. Fa.

The Case of [...] Roll Abr. 93 pl. 17. Postea. Bowls and Lassels is full in the Point, where it was adjudged that this Action would not lie, because the Sheriff had not done any thing unjustly, but what he was commanded to do by the Statute, and therefore he is to be amerced if the Defendant doth not appear.

Ex parte Quer.But for the Plaintiff it was said, that unless this Action lye he is remediless, and that for two Reasons:

1. Because the Assignment of the Bail Bond is at the discre­tion of the Court, and not demandable by the Plaintiff in foro.

[Page 85] 2. The Plaintiff hath no benefit by the Amerciaments, be­cause they go to the King, and in some places are granted to Patenteés; now 'tis agreéd that the Sheriff may be amerced, and certainly if an Action be brought against him he is but in the same Case, for still he is to pay: And if it be objected, that the Amerciaments may be compounded cheaper, then the Plaintiff hath not so good remedy, nor is so likely to recover his Debt, as if the Action would lie, which would be a greater penalty upon him than the Amerciaments on the Sheriff.

Neither will it follow that because the Sheriff may be amerced therefore no Action will lie against him; for in many Cases he may be amerced, and yet an Action on the Case will lie against him at the Suit of the Party, 41 Ass. pl. 12. fol. 254. Latch 187.

That this Action will not lie is against the very end of the Statute, and the reasonable construction thereof in the last Clause, which Enacts, That if the Sheriff return a Cepi Corpus, he shall be charged to have the Body at the Return as before the making of the Statute; now before this Law he was lyable to an Action, if after such a Return made the Party did not appear, and therefore this Action being grounded upon the Common Law, is still preserved since no alteration hereof hath beén made by this Statute.

'Tis true an Action of Escape is taken away, but not an Action on the Case for a false Return, and upon this difference are all the Authorities cited on the other side, as Cro. Eliz. 416, 621. Cro. Jac. 286. Moor 428. and the Case of Bowls and Lassels.

And for an Authority in Point is the Case of Franklin and Andrews 24 Car. 1. where Iudgment was given for the Plaintiff in an Action brought for a false Return of Cepi Corpus; and the Statute pleaded as in this Case. It has béen objected that Iudgment was there given upon the defect of Pleading, be­cause the Traverse was naught; 'tis true there was a Traverse, absque hoc quod the Defendant retornavit aliter vel alio modo; but that was held good because it answered the falso alledged in the Plaintiffs Declaration: In this Case there is no Traverse, but 'tis confessed by the Demurrer that he did falsly and de­ceitfully return Cepi Corpus, and so the Plaintiff is at apparent damage and hath no remedy without this Action, and the Defen­dant is at no prejudice but hath his remedy over on the Bail Bond.

North Chief Iustice, Wyndham and Atkins Iustices,Judgment. held that the Action would not lie; for when the Sheriff returns Cepi Corpus & paratum habeo, though he have him not in Court 'tis [Page 86] no false Return; for if he hath taken Bail, he hath done what by Law he ought to do; if he Arrest a Man in Yorkshire, the Law will not compel him to bring the Party hither to the Bar, because of the charge; if he make an insufficient Return, neither the Party or the Court are deluded, because the common me­thod in such cases must be pursued, by which the Party will have remedy. This Return is true; and Iustice Atkyns held, that the Sheriff was not obliged by the Statute to return only a Cepi Corpus & paratum habeo, but might return, that he took Bail; for the Statute provides, that if he return a Cepi Corpus, he shall be chargable as before, but doth not enjoyn him to make such return; the Case of Bowles and Lassels is full in this point, and therefore Iudgment was given for the Defendant.

But Iustice Scroggs was of another Opinion; says he, this Action being brought because the Defendant said he had the Body ready, when in truth he had not, was an apparent injury to the Plaintiff, of whom the Statute must have some consideration; for it doth not require the Sheriff to say Cepi corpus & paratum habeo, but he must make his Return good, or otherwise those words are very insignificant; and if the Statute obliges him to let the party to Bail, and nothing more is thereby intended for the benefit of the Plaintiff, why doth the Court amerce the Sheriff, and punish him for doing what the Statute directs? Therefore if the Plain­tiff brings a Habeas Corpus upon the Cepi, and the Defendant doth not appear the Plaintiff, is then well entituled to this Action.

Hollis versus Carre, in Cancellaria.

Decree of the Execu­tion of a Fine in spe­cie.THE Lord Chancellor Finch having called to his assistance Iustice Wild and Iustice Windham, to give their Opinions what relief the Plaintiff was to have for the recovering of 6000 l. which was his Ladys Portion. After those Iudges had spoken shortly to the matter, he put the Case: Viz. The Plaintiff by his Bill demands 6000 l. due to him for his Wives Portion, with Inte­rest for non-payment, according to the purport of certain Arti­cles of Agreement, dated in August 1661. and mentioned to be made between old Sir Robert Carr (the Defendants Father) his Lady and Son (the now Defendant) and Lucy Carr his Daughter, on the one part, and my Lord Hollis and Sir Fran­cis his Son (the now Plaintiff) on the other part.

The Articles mention an Agreement of a Marriage to be had between the said Sir Francis Hollis and Lucy Carr, with Co­venants on the Plaintiffs side to settle a Ioynture, &c. and on the other side to pay 6000 l. and 'tis agreed in the Articles, that a Fine was intended to be levied of such Lands, &c. for securing the payment of 6000 l. &c.

The Marriage takes effect, but old Sir Robert Carr did never Seal these Articles; the Lady Carr Seals before, and the Defen­dant after Marriage.

Sir Francis had Issue on his Lady Lucy, one Child since dead; the Lady is likewise dead; the Ioynture was not made, nor the Portion paid.

Afterward, viz. Anno 1664. an Act of Parliament was made for setling old Sir Robert Carr's Estate, whereby the Trusteés therein named, are appointed to sell it for payment of Debts, and raising this Portion; by which Act all Conveyances made by old Sir Robert Carr, since the year 1639. are made void, except such as were made upon valuable considerations; but all those made by him before the said year, with power of revocation (if not actually revoked) are saved; and in the year 1636. he had executed a Conveyance, by which he had made a Settlement of his Estate in Tayl, with a power of revocation; but it did not appear that he did ever revoke the same.

The greatest part of the Lands appointed by this Act of Par­liament, to be sold by the Trustees, are the Lands comprised in that Settlement; and now, after the death of Sir Robert Carr, the Plaintiff exhibits his Bill against the Son, (not know­ing that such a Settlement was made in the year 1636. till the Defendant had set it forth in his Answer:) and by this Bill he desires that the Trustees may execute their Trust, &c. and that he may have relief.

On the Defendants side it was urged,Ex parte Def. that after the Marri­age there was a Bond given for an additional Ioynture, and it was upon that account that the Defendant was drawn in to execute these Articles: And if the very reason and foundation of his entring into them failed, then they shall not bind him in Equity; and in this Case it did fail, because the Plaintiff had disabled himself to make any other Ioynture, by a Pre-convey­ance made and executed by him, of his whole Estate; and if this agreement will not bind him, then this Court cannot en­large the Plaintiffs remedy, or appoint more than what by the Articles is agreed to be done; neither can the Defendants seal­ing incumber the Estate Tayl in Equity, because the Lands were [Page 88] not then in him, his Father being Tenant in Tayl, and then living; and the subsequent descent by which the Lands are cast upon him, alters not the Case; for the very right which descends is saved by the Act from being charged.

But on the other side it was argued, that though the Marri­age did proceed upon the Defendants sealing, yet the Assurance which was to be made, was a principal Motive thereunto; and it being agreed before Marriage, though not executed, it was very just that he should Seal afterwards; and though the additional Ioynture was not made, yet there was no colour that the De­fendant should break his Articles, for that reason; because if the Bond be not performed, 'tis forfeited and may be sued; and no­thing appeared in the case, of any Conveyance made by Sir Francis, whereby he had disabled himself to make an additional Ioyn­ture, and he hath expresly denied it upon his Oath. And though it was was objected, that the Money was raised by the old La­dy Carr, and by the direction of the Trustees lodged in the hands of one Cook, who is become insolvent; It was answered that there was no proof of the consent of the Trustees, and therefore this payment cannot alter the case.

After the matter thus stated, the Lord Chancellor delivered his Opinion, That the 6000 l. is doe to the Plaintiff, unpaid and unsatisfied; for though the Marriage had not taken effect, yet the Covenant binds the Defendant, because a Deed is good for a Duty, without any consideration.

2. The Plaintiff has remedy against the person of the De­fendant at Law, for this 6000 l.

3. He has remedy against such of the Defendants Lands, which are not comprised in the Settlement made 1636. for as to them the Trustees may be enjoyned to execute the Trust.

And he desired the Opinions of the two Iustices, if any thing more could be done in this case.

Iustice Windham was of Opinion, that nothing more could be done, but to make a Decree to enforce the execution of the Trust.

And Iustice Wild said, that the Plaintiff has his remedy at Law against the Defendant, and upon the Act of Parliament against the Trustees; but upon these Articles no Decree could be made to bind the Lands, for that would be to give a much better security than the Parties had agreed on. But if there had [Page 89] been a Covenant in the Articles, that a Fine should be levied, it might have been otherwise; 'tis only that a Fine is intended to be levied.

But as to that the Lord Chancellor was of Opinion, that it was a good Covenant to levy a Fine, for the words (Articles of Agreement, &c.) go quite through, and make that Clause a Co­venant; but because Iustice Wild was of another Opinion, he desired the Attorny General to argue these three Points.

1. Whether this was a Covenant to levy a Fine or not.

2. If it was a Covenant, whether this Court can decree him to do it, for though the Party has a good remedy at Law; yet whe­ther this Court might not give remedy upon the Land.

3. If it was a Covenant to levie a Fine, and the Court may decree the Defendant to do it, yet whether such a Decree can be made upon the prayer of this Bill, it not being particularly prayed; for the Plaintiff concluded his Bill, with praying relief in the exe­cution of the Trust, &c.

In Trinity-Term following these Points were argued by Ser­jeant Maynard, Sir John Churchil, and Sir John King for the Plaintiff; Mr. Attorny and Mr. Solicitor, and Mr. Keck for the Defendant, all in one day, and in the same order as named.

The Councel for the Defendant urged,Ex parte Def. that this was no Co­venant in Law to enforce the Defendant to levy a Fine: 'Tis agreéd that there is no need of the word (Covenant) to make a Cove­nant; but any thing under the Hand and Seal of the Parties, which imports an Agreement, will amount to a Covenant; so in 1 Roll. Abr. 518. these words in a Lease for years, viz. That the Lessee shall repair, make a Covenant; so in the Case of Indentures of Apprentiship there are not the formal words of a Covenant, but only an Agreement that the Master shall do this, and the Apprentice shall do that, and these are Covenants; but in all these Cases there is something of an undertaking; as in 1 Roll 519. Walker versus Walker, If a Deed be made to another in these words, viz. I have a Writing in my custody, in which W. standeth bound to B. in 100 l. and I will be ready to produce it; This is a Covenant, for there is a present engaging to do it, but there are no such words here, 'tis only a recital, That where­as a Fine is intended to be levied to such Uses, &c. 'Tis only Intro­ductive to another Clause, without positive or affirmative words, and therefore can never be intended to make a Covenant, but are [Page 90] recited to another purpose, viz. To declare the Use of a Fine, in case such should be levied.

If Articles of Agreement are executed in consideration of an intended Marriage, and one side Covenants to do one thing, and the other side another thing; was it ever imagined that upon these words, (Whereas a Marriage is intended, &c.) that an Action of Covenant might be brought to enforce the Marriage: And yet there is as much reason for the one as the other; therefore since the Parties have neither made nor intended it for a Covenant, 'tis not necessary that it should be so construed.

If this is a Covenant, the Parties at Common Law could only bring an Action of Covenant, and recover damages for not levying of the Fine, and that the Plaintiff may do now upon the express Covenant for non-payment of the Money; but then the breach must be assigned according to the words, viz. That the De­fendant did not levy a Fine as intended; who may plead that a Fine was never intended to be levied, and by what Iury shall this be tryed?

It may be objected, that every Article stands upon its own bot­tom, and the Title of them (being Articles of Agreement,) extends to every Paragraph.

But as to that, each of these Articles is to be considered by it self; and every Paragraph begins, viz it is Covenanted, &c. which shews it was never intended to make it a Covenant, by the Title of the Articles, and the rather, because 'tis unreasonable to make such a construction; for it is not to be supposed that a Man will covenant that a Fine shall be levied, as in this Case, by A. and B. and himself, when 'tis not in his power to compel another.

2. Admitting it to be a Covenant, yet it would be very hard to decree the execution of a Fine in Specie; for the Father of the Defendant was alive when he executed the Deed, and the Father being Tenant in Tayl, who never sealed, the Son could have no present Right, who did Seal; and if matters had stood now as then, how could a Court of Equity Decree a Fine, by which a Right might be extinguished, but could never be trans­ferred, and by which no use could be declared? For though such a Fine be good by Estoppel, before the Tayl descends to the Issue; yet no use can be declared thereupon, nor upon any Fine by Estoppel; and there is no reason why length of time should put the Plaintiff into a better condition than he was when the Articles were executed.

[Page 91] 3. And lastly, since here is a particular relief prayed in no wise concerning the levying of this Fine, but only a Relief in the Exe­cution of the Trust, this Court cannot Decree the Defendant to levy one, it being against the constant course and rules thereof.

But on the other side it was said by the Plaintiffs Coun­cil, that the words do declare the intent of the Parties,Ex parte Quer. that a Fine shall be levied; and 'tis the Intent which makes the Agreement; and where there is an Agreement an Action of Covenant will lye.

If a Man Covenant to do such a thing in consideration of a Marriage, and then there is this Clause, viz. Whereas it is intended that he shall Marry before Michaelmas, that then, &c. certainly upon the whole Deed here is a good Covenant to marry before Michaelmas.

In this Case 'tis Covenanted, that 6000 l. shall be paid, and that it shall be secured as herein is after mentioned; then 'tis de­clared, that a Fine is intended to be levied for that purpose, this is a good Covenant to make a Security by a Fine.

But if the particular manner how the the Security was to be made had been omitted, yet upon the words (Covenant to secure it,) the Court hath a good ground to make a Decree to levy a Fine, that being the only way to secure it.

2. As to the Objection, that the Defendant had but a possibi­lity of having the Estate when he entred into this Couenant, (ad­mitting it to be so) yet why should that be a reason to hinder him from making good the Security when he hath it; if Fa­ther and Son Covenant to make an Assurance, the Father who had the Estate in possession dies, the Decree must then operate upon that Estate in the hands of the Son.

3. Here is a general prayer for a proper relief, in which the Plaintiffs Case is included, and therefore prayed Iudgment for him.

The Lord Chancellor,Curia. presently after the Arguments on each side, delivered his Opinion, That upon the whole frame of the Arti­cles there was a Covenant to levy a Fine; for wherever there is an Agreement under Hand and Seal, Covenant lies; that in this Case there was a plain Covenant, if the first Article of gi­ving farther security, be coupled to that Paragraph of intending to levy a Fine, for that is the farther security intended, so that the meaning of the Parties runs thus; I do intend to levy a Fine, which is for the Securing of 6000 l. and this appears to be their Agreement. Now there are many Cases where words [Page 92] will make a Covenant, because of the Agreement, when the general words of Covenant, Grant, &c. are wanting; asHays versus Bickerstaff. Antea & Postea. Cook versus Herl. Yielding and Paying will make a Covenant, for the reasons afore­said.

And therefore the Party having provided himself of real as well as personal Security, by these Articles, he said he would not deprive him of it; especially when it might be more trouble to bring an Action of Covenant for the not levying of the Fine, for upon that many Questions might arise, as who should do the first act, &c. for which reasons he decreed the execution of the Fine in Specie.

DE Term. Sanctae Trin. Anno 28 Car. II. in Communi Banco.

Ingram versus Tothill.

REplevin: The Case was;Justificati­on ill. 1 Vent. 314. Mod. Rep. 216 Postea. A Man made a Lease for 99 years, if A. B. and C. should so long live, rendring an Herriot after the death of each of them successive­ly, as they are all three named in the Deed; the last named died first; and if an Herriot should be paid, was the Question.

Stroud Serjeant urged, that it should not, because the reser­vation is the Lessors Creature, and therefore to be taken strong­ly against him: As if Rent be reserved to him and hisPer North, a Devisee is not Assignee to take. Assigns, or to him and his Executors, the Heir shall not have it: So is the Authority in 33 Eliz. Owen 9. Reddend to the Lessor, his Ex­ecutors and Administrators durante termino 21 Annorum &c. the Heir shall not have the Rent, because 'tis not reserved to him.5 Co. 35. Latch 274.

In this Case the Herriot is reserved if the three dye succes­sively, and the Lessor is contented to trust to that Contingency.Reddend' annu­atim duran' ter­mino praedict' to the Lessor and his Assigns, the Heir shall have it, though not named, Latch 99. 2 Sand. 367.

As to this Point the Court gave no Opinion, but Iudgment was given for the Plaintiff upon the pleading, because the De­fendant had justified the taking of a Distress, by vertue of a Lease for a Term of years, if three live so long, and did not aver that any of the Lives were in being.

2. He sets forth that one of them was seised, and being so seised dyed, but doth not say obiit inde seisit̄, and these were held incurable faults.

Anonymus.

Excepti­ons to the Count in a Formedon in Discender. Mod. Rep. 219. 8 Co. 88.IN a Formedon in Discender: The Tenants by Turner Ser­jeant, of Council with them, took three Exceptions to the Count.

1. The Demandant (being Brother to the Tenant in Tail who died without Issue) sets forth that the Land belonged to him post mortem of the Tenant in Tail, without saying that he died without Issue: In the ancient Register in a Formedon 'tis pleaded that the Tenant in Tail died without Issue, and so it is in Co. Entr. 254. b. Rast. Entr. 341. b. quae post mortem of the Donee reverti debeant, eo quod the Donee obiit sine hae­rede; all the Presidents are so, 9 E. 4. 36.

2. The Demandant makes as if there were two Heirs of one Man, which cannot be pleaded, for he counts that his eldest Brother was Heir to his Father, and that after his death he is now Heir, which cannot be, for none is Heir to the Father but the eldest Son, and therefore when they are both dead without Issue the next Brother is Heir to him who was last seised, and not to the Father, and then he ought to be named, which is not done in this Case, Hern's Pleader fol.

'Tis true, in a Formedon in Reverter (the Tail being spent) the Donor ought not to name in his Count every Issue inheri­table to the Tail, because he may not know the Pedigree; and therefore 'tis well enough for him to say quae post mortem of the Donee ad ipsum reverti debeant, eo quod he died without Issue; but in a Formedon in Discender 'tis presumed that the Deman­dant knowns the descent, and therefore he ought to name every one to whom any Right did discend, Jenkins and Dawson's Case. Hetley 78. Dyer 216.

3. The Demandant hath not set forth that he is Heir of J. begotten on the Body of his Wife,1 Inst. 326. which he should have done because this being in the Discender he must make himself Issue to the Tail.

Ex parte Def.These Exceptions were answered by Serjeant Seys; and as to first he said, that in a Formedon in Descender he neéd not to set forth that the Tenant in Tail died without Issue, which he agreed must be done in a Formedon in Remainder or Reverter, 39 E. 3. 27. Old Entr. tit. Formedon pl. 3. 7 H. 7. 7. b. a Case express in the Point.

To the second Exception he said, that it was no Repugnancy in Pleading to say that two were Heirs to one Man, for they may be so at several times, and so it appears to be in this Case, since 'tis said post mortem of his Brother who was Heir.

To the third Exception, 'Tis well set forth that the Deman­dant was the Issue of Ingram begotten of the Body of Jane; for he saith his Brother was so, and after his death he was Bro­ther and Heir of him, which is impossible to be unless he was be­gotten as aforesaid; and of this Opinion were all the Court, viz. Judgment. That 'tis well enough set forth, that the Tenant in Tail died with­out Issue; for if he had any Children alive it could not discend to the Demandant as Brother and Heir, which he hath alledged; and they all agreed the difference between a Formedon in the Discen­der, Remainder and Reverter. And as to the second Exception there is no contradiction to say two are Heirs to one tempore diviso. And the last Exception had no force in it. But then it was observed that the Demandant in his Writ had set out his Title after the death of the Tenant in Tail, and in the Count 'tis only Quae post mortem, &c. But to that it was aswered it relates to the Writ, and what is therein shall supply the Et caetera in the Count.

Woodward versus Aston in Banco Regis.

INdebitatus Assumpsit for 10 l. in Mony received to the Plain­tiffs use, and upon a Trial at Barr this Term:Joint Of­fice for life and to the Survivor, one con­sents that another shall be ad­mitted, 'tis a Surrender. 1 Ventris 296. The Case upon Evidence was, viz.

Sir Robert Henly Prothonotary of the Court of Kings Bench makes a Grant of the Office of Clark of the Papers (which of right did belong to him) unto Mr. Vidian and Mr. Woodward for their lives and the life of the longest liver of them.

Afterwards Mr. Vidian makes a parol Surrender of this Grant, and then Sir Robert Henley makes a new Grant to Mr. Wood­ward and Mr. Aston the Defendant for their Lives, and for the life of the Survivor: Mr. Vidian dies, and whether the Plain­tiff Woodward should have all the profits of the Office by Sur­vivorship was the Question.

It was agreed that this was one entire Office; and as one of them cannot make a Deputy so he cannot appoint a Suc­cessor.

But the doubt was whether the Plaintiff had not consented that the Defendant should be taken into the Office, and had agreed to the new Grant which was made afterwards; for it was [Page 96] admitted that if he consented before Mr. Aston came in, it must then be found for the Defendant; for by his consent he had barred himself of his Right and Benefit of Survivorship, and that by his consenting to the new Grant that in Law was a Surrender of the first Grant, and then the Defendant is jointe­nant with the Plaintiff, and if so, his Action is not maintain­able.

And upon these two Points only it was left to the Iury, who found for the Defendant.

The Evidence to the first Point was, that when Mr. Vi­dian proposed to the Court that the Defendant might succeed him, after some opposition and unwillingness in the Plaintiff to agreé to it; yet at length he declared that he did submit to it, and accordingly the Defendant was admitted; but there was no formal Entry of his Admittance as an Officer, but only the Courts declaring their Consent that he should take his place.

Ex parte Quer.On the other side it was insisted on for the Plaintiff and proved that his Submission to the Court was with a salvo jure, and what he did was reluctante animo, thinking it was a hardship upon him, as he often since declared; so that it was quasi a compulsory Consent made in obedience to the Court with whom it was not good manners in him to contend.

Several Points were stirred at the Trial, as,

1. Whether a Surrender of the Grant of an Office by Pa­rol was good.

2. Whether if a Grant be made of an Office or of any other thing which lies in Grant, and the Deed is lost or cancelled, the Office or the thing granted falls to the ground, for the Deed is the foundation; and a Case was cited in the Lord Dyer; If there be two Iointenants and one cancels the Deed it hath destroyed the Right of the other, Quaere of these things: But it was agreed, that if two Men who have one Office for their Lives and the survivor of them, if one surrenders to the other, and then a new Grant is made to this other and a Stranger, he hath debarred himself of the Survivorship, and he and the Stranger are jointly seised.

Crossman versus Sir John Churchil.

IN a Quare Impedit the Plaintiffs Title was set forth in his Declaration, which was also found in a Special Verdict,Where an Agreement for a Pre­sentation by turns is good. that Sir George Rodney was seised of the Advowson in Fée, and died seised, leaving two Sisters who were his Coheirs; that Sir John Rodney being also one of the same Family and pretending a Right to the Estate, for preventing Suits that might happen, they all enter into an Agréement by Indentures mutually exe­cuted, by which it was agreed, that Sir John Rodney shall hold some Lands in severalty, and the Co-heirs shall hold other Lands in the like manner; and as for this Advowson a temporary pro­vision was made thereof, that each of them should Present by turns, and this was to continue till partition could be made; then comes an Act of Parliament and confirms the Indenture, and Enacts, That every Agreement therein contained shall stand, and that all the rest of the Lands not particularly named and otherwise disposed by the said Indenture should be held by these three in common; one of the three, who by Agréement was next to Present, grants the next Avoidance (the Church being then full) to the Plaintiff, and the Question was, whether these threé persons were not Tenants in Common of the Advowson, and if so, then the Grant of the next Avoidance cannot be good by one alone, because he hath not the whole Advowson, but only a Right to the third part.

It was said, that if Tenants in Common had made such an Agreément it would not have beén any division of their interest; for there must be a partition to sever the Inheritance.

The Court were all of Opinion,Curia. that Iudgment should be given for the Plaintiff; for there was an Agréement that there shall be a Presentation by turns, and therefore for one turn each hath a Right to the whole Advowson by reason of the Act of Par­liament by which that Agreement is confirmed, and thereby an Interest is setled in each of them till Partition made; but this Agreement would have vested no Interest in either of them with­out an Act of Parliament to corroborate it; therefore there had been no remedy upon it but by an Action of Covenant. This Case was argued four times and not one Authority cited.

The Earl of Shaftsbury versus Lord Digby. In Banco Regis.

For Words upon the Statute of 2 R. 2. c. 5. Jones 49. SCandalum Magnatum. The Plaintiff declares upon the Sta­tute of 2 R. 2. cap. 5. for these Words, viz. You are not for the King, but for Sedition and for a Common-wealth, and by God we will have your Head the next Sessions of Parliament.

After Verdict for the Plaintiff and 1000 l. damages given, it was moved in Arrest of Iudgment, and several Exceptions taken.

1. As to the Recital of the Statute, the Words of which are, That no Man shall devise any Lies, &c. and the Plaintiff for the Word devise had used the Latin Word contrafacio in his Declaration, which was very improper, that being to counter­feit and not to devise; for it should have béen machino or fingo, those are more expressive Words of Devise.

2. 'Tis alledged that the Defendant dixit mendacia of the Plaintiff, viz. haec Anglicana verba sequen̄, and doth not alledge that he spoke the Words.

3. The most material Objection was a mistake in the Recital of the Statute, the Words of which are, That none shall speak any scandalous Words of any Dukes, Earls, &c. the Justices of either Bench nor, of any other great Officer of the Kingdom; but the Plaintiff in his Declaration recites it thus, viz. None shall speak any scandalous Words of any Dukes, Earls, &c. Justices of either Bench, great Officers of the Kingdom, and leaves out the Words (neque al) so that it must be construed thus, None to speak of any Dukes, Earls, &c. being great Officers of the Kingdom; and then 'tis not enough that the Plaintiff is Comes, but he also ought to be a great Officer of the Kingdom which is not set out in this Case.

But upon great Debate and Deliberation these Exceptions were overruled; and the whole Court gave Iudgment for the Plaintiff.

As to the first Exception they said, contrafacio is a legal Word and apt enough in this sense, and so are all the Presi­dents, and thus it was pleaded in the Lord Cromwel's Case.

As to the second Exception it was said, the Mendacia which were told were the English Words which were spoken; and the (viz. haec Anglicana verba sequen̄ being in the Accusative Case) are governed by the same Verb which governs the Words pre­cedent [Page 99] (viz. horribilia mendacia) Besides for the supporting of an Action the (viz.) may be transposed, and then it will be well enough, viz. the Defendant spoke haec Anglicana verba, viz. Lies of the Plaintiff.

As to the third Exception it was answered, that the Plain­tiff neéd not recite the Statute it being aSid. 348. general Law; and admitting there was no necessity, yet if he will undertake to recite it and mistake in a material Point, 'tis incurable; but if he recites so much as will serve to maintain his own Action truly and mistakes the rest, this will not vitiate his Declaration; and so he hath done here by reciting so much of the Statute which Enacts, That no Man shall speak any scandalous Words of an Earl, which is enough (he being an Earl) to entitle him to an Action, and he concludes prout per eundem Actum plenius liquet; and the Court grounded themselves principally upon a Iudgment given in this Court which was thus, viz. There was a Robbery committed, and the Party brought an Action upon the Statute of Huy and Cry, in which he recited incendia domorum, 13 E. 1. cap. 1. the said Statute beginning Forasmuch as from day to day Rob­beries, Murders, burning of Houses, &c. and the Presidents are all so: But the Parliament Roll is Incendia generally without domorum; and it was strongly urged, that it was a misrecital, which was fatal: But the Court were all of Opinion, that the Plaintiffs Case being only concerning a Robbery, for which the Statute was well recited, and not about burning which was mis­taken, it was for that reason good enough; and Iudgment was given accordingly.

When this Cause was tried at the Barr which was in Easter-Term last, the Lord Mohun offered to give his Testimony for the Plaintiff, but refused to be sworn, offering to speak upon his Honour; but Iustice Wyld told him in Causes between Party and Party he must be upon his Oath.

The Lord Mohun asked him whether he would answer it: The Iudge replyed, that he delivered it as his Opinion, and because he knew not whether it might cause him to be questioned in ano­ther place, he desired the rest of the Iudges to deliver their Opi­nions, which they all did, and said he ought to be sworn; and so he was, but with a salvo jure; for he said there was an Order in the House of Peers, That 'tis against the Priviledge of the House for any Lord to be sworn.

Anonymus.

DEBT upon the Statute for not coming to Church, and concludes Per quod Actio accrevit eidem Domino Regi & quer̄ ad exigend' & habend'. The Exception after Iudgment was taken, that it ought to have been only Actio accrevit ei­dem the Plaintiff, qui tam, &c. and not exigend' & habend' for the King and himself; Sed non allocatur: For upon search of Pre­sidents the Court were all of Opinion that it was good either way.

Anonymus.

Factor, where he cannot sell but for rea­dy Mony.IN Accompt: Iudgment was given quod computet; and the Defendant pleads before the Auditors that the Goods whereof he was to give a reasonable accompt were bona peri­tura; and though he was carefull in the keeping of them, yet they were much the worse; that they remained in his hands for want of Buyers, and were in danger of being worse, and therefore he sold them upon Credit to a Man beyond Sea.

The Plaintiff demurred; and after Argument by Barrel Ser­jeant for the Plaintiff, and Baldwin Serjeant for the Defendant, the whole Court were of Opinion that the Plea was not good.Curia. For if a Merchant deliver Goods to his Factor ad merchandizand', he cannot sell them upon Credit, but for ready Mony, unless he hath a particular Commission from his Master so to do; for if he can find no Buyers he is not answerable; and if they are bona peritura and cannot be sold for Mony upon the delivery, the Merchant must give him authority to sell upon Trust. If they are burned or he is robbed without his own default, he is not lyable; and in this Case it was not pleaded that he could not sell the Goods for ready Mony; and the Sale it self was made beyond Sea, where the Buyer is not to be found; like the Case of1 Bulst. 103. Yelv. 202. Sadock and Burton, where in Accompt against a Factor he pleads that he sold the Iewel to the King of Barbary for the Plaintiffs use; and upon a Demurrer the Plea was held naught; for when a Factor hath a bare Authorty to sell, in such Case he hath no power to give a day of payment, but must receive the Mony immediately upon the Sale.

Therefore in the Case at Barr, if the Master is not bound by the Contract of the Servant without his Consent, or at least the Goods coming to his use; neither shall the Servant have Authority to sell without ready Mony, unless he hath a particular Order for that purpose.

There was another thing moved in this Case for the Plain­tiff that the Plea ought to be put in upon Oath; for having pleaded that he could not sell without loss, he ought to swear it, Fitzh. Accompt 47. But no Opinion was delivered herein, only the Chief Iustice said, that the Plaintiff ought to have required the Plea upon Oath, for otherwise it was not necessary: But for the substance of the Plea it was held ill, and Iudgment was given for the Plaintiff.

Harris's Case.

SErjeant Hopkins moved for a Prohibition. The Case was:Husband dies, his Wife Exe­cutrix, she dies before Probate, Admini­stration must be to the next of kin of the Husband. 22 & 23 Car. 2. cap. 10. A Man makes a Will and appoints his Wife to be Exe­cutrix, and devises a Shilling to his Daughter for a Legacy, and dies; the Executrix, before Probate of the Will, dies also in­testate; and whether the Goods shall be distributed by the Act for settling Intestates Estates amongst the next of kin to the Exe­cutrix or to the next of kin to the Testator her Husband, was the Question: Since she dying before Probate her Husband in Iudgment of Law died also intestate.

This Case seems to be out of the Statute, the Husband having made a Will, and the Act intermeddles only where no Will is made.

The Court delivered no Iudgment in it, but seemed to in­cline that the Statute did extend to this very Case, and that Administration must be committed to the next of kin of the Husband; but if there should be no distribution, it must then be according to the Will of the Testator.

Reder versus Bradley.

IT was moved to reverse a Iudgment given in an Honour Court upon a Writ of false Iudgment brought here:Judgment reversed in an inferi­or Court where the damage was laid to 30 l. The Plaintiff declared in the Action below that there was a Communi­cation between him and the Defendant concerning the Service of his Son; and it was agreéd between them that in consideration [Page 102] the Plaintiff would permit his Son to serve him, the Defen­dant promised to pay the Plaintiff 30 s. The Plaintiff avers that he did permit his Son to serve him, and that the Defendant hath not paid him the 30 s. There was a Verdict for the Plaintiff, and the Exceptions now taken were:

1. 'Tis not said that the Iurors were electi ad triand', &c.

2. He lays his damage to 30 l. of which a Court Baron cannot hold Plea; for the difference taken by my Lord Coke is where Damages are laid under 40 s. Costs may make it amount to more; but where 'tis laid above, in such Case all is coram non Judice; for which reason Iudgment was reversed; but in this Court the Iudge doth not pronounce the Reversal as 'tis done in the Kings Bench.

Lane versus Robinson.

Inferior Court.TRespass for taking of his Cattel; the Defendant justifies by vertue of an Execution in an Action of Trespass brought in a Hundred Court; and the Plaintiff demurred.

Serjeant Pemberton took two Exceptions to the Plea.

2 Cro. 443, 526. Hob. 180. Sid. 348.1. Because the inferior Court not being of Record cannot hold Plea of a Trespass quare vi & armis & contra pacem, but it was not allowed; for Trespasses are frequently brought there, and the Plaintiff may declare either vi & armis or contra pa­cem.

Postea.2. The Defendant reciting the Proceedings below saith tali­ter processum fuit; whereas he ought particularly to set forth all that was done, because not being in a Court of Record the Pro­ceedings may be denied and tryed by Iury.

But the Court inclined that it was pleaded well enough, and that it was the safest way to prevent mistakes; but if the Plain­tiff had replied de injuria sua propria absque tali causa, that had traversed all the Proceedings. Quaere whether such a Replication had been good, because the Plaintiff must answer particularly that Authority which the Defendant pretended to have from the Court; but no Iudgment was given.

Sherrard versus Smith.

TRespass Quare clausum fregit, and for taking away his Goods; the Defendant justifies the taking by the com­mand of the Lord of the Mannor, of which the Plaintiff held by Fealty and Rent, and for non-payment thereof, the Goods were taken nomine Districtionis.

The Plaintiff replies, that the locus in quo est extra, Hors de son Fee, when to be plead­ed. abs (que) hoc quod est infra feodum: The Defendant demurrs specially, be­cause the Plaintiff pleading hors de son fee, should have taken the Tenancy upon him, 9 Co. Bucknal's Case, 22 H. 6. 2, 3. Keil­way 73. 14 Ass. pl. 13. 1 Inst. 1. b. where this is given as a Rule by my Lord Cook.

Serjeant Pemberton on the other side agreed,Ex parte Quer. 13 Assize 28. 28 Assise 41. that in all cases of Assize, hors de son fee is no Plea, without taking the Tenancy upon him, 2 Ass. placito 1. And in 5 E. 4. 2. 'tis said, that in Replevin the Party cannot plead this Plea, because he may disclaim; but Brook placito 15. tit. hors de son fee saith, this is not Law, and so is 2 H. 6. 1. and many Cases after­wards were against that Book of Ed. 4. and that a Man might plead hors de son fee, as if there be a Lord and Tenant hold­ing by Fealty and Rent; and he makes a Lease for years, and the Lord distrains the Cattel of the Lessee, though the Tenant hath paid the Rent and done Fealty, there if the Lessee alledge that his Lessor was seised of the Tenancy in his demesn, as of fee, and held it of the Lord by Services, &c. of which Services the Lord was seised by the hands of his Lessor, as by his true Te­nant, who hath leased the Lands to the Plaintiff; and the Lord to charge him hath unjustly avowed upon him who hath nothing in the Tenancy, 'tis well enough, 9 Co. Case of Avowries; and the reason given in 5 Edw. 4. about disclaimer, will not hold now, for that course is quite altered, and is taken away by the Statute of the 21 H. 8. cap. 19. which Enacts, That Avow­ries shall be made by the Lord upon the Land, without naming his Tenant.

But in case of Trespass there was never any such thing ob­jected as here; for what Tenancy can the Plaintiff take upon him in this case? He cannot say tenen' liberi tenementi, for this is a bare Action of Trespass, in which, though the pleading is not so formal, yet it will do no hourt; for if it had been only ex­tra [Page 104] feodum, without the Traverse, it had been good enough, and of that Opinion was the Court in Hillary-Term following, when Iudgment was given for the Plaintiff (absente Scroggs) And the Chief Iustice said, That the Rule laid down by my Lord Coke, in 1 Inst. 1. b. that there is no pleading hors de son fee, with­out taking the tenancy upon him, is to be intended in cases of Assize; and so are all the Cases he there cites for proof of that Opinion, and therefore so he is to be understood; but this is an Action of Trespas brought upon the Possession, and not up­on the Title. In the Case of Avowry, a Stranger may plead generally hors de son fee, and so may Tenant for years; and this being in the Case of a Trespass, is much stronger, and if the Plaintiff destroys the Defendants justification; 'tis well enough.

Sir William Hickman versus Thorne & alios.

Prescripti­on against another Prescripti­on, not good, with­out a Tra­verse.IN a Replevin: The Defendant justifies the taking, for that the locus in quo was his Freehold, and that he took the Cat­tel there damage fesant.

The Plaintiff in bar to the Avowry replies, that the locus in quo, &c. is parcel of such a Common Field, and prescribes to have right of Common there, as appendant to two Acres which he hath in another place.

The Defendant rejoyns, that there is a Custom, that every Free-holder who hath Lands lying together in the said Common Field may enclose against him who hath right of Common there, and that he had Lands there, and did enclose: The Plaintiff de­murs, and Serjeant Newdigate took Exceptions to the Rejoyn­der.

Ex parte Quer.1. For that he did not averr, that the Lands which he enclosed did lye together, and therefore had not brought his case within the Custom alledged: Sed non allocatur, because he could not en­close if the Lands had not laid together.

2. He gives no answer to the Plaintiffs right of Common, but by argument, which he should have confessed, with a bene & verum est, and then should have avoided it, by alledging the Cu­stom of Enclosure; like the Case of2 Leon. 209. Russel and Broker, where in Trespass for cutting Oaks, the Defendant pleads, that he was seised of a Messuage in Fee, and prescribes to have ratio­nabile estoverium ad libitum capiend' in boscis; the Plaintiff replies, that the locus in quo was within the Forest, and that [Page 105] the Defendant and all those, &c. habere consueverunt rationabile estoverium, &c. per liberationem Forestarii; and upon a Demurrer the Replication was held naught, because the Plaintiff ought to have pleaded the Law of the Forest, viz. Lex Forestae talis est; or to have traversed the Defendants Prescription, and not to have set forth another Prescription in his Replication without a Traverse.

3. The Defendant should have pleaded the Custom, and then have traversed the Prescription of the Right of Common; for he cannot plead a Custom against a Custom, 9 Co. 58. Aldred's Case, where one prescribes to have a Light, the other cannot pre­scribe to stop it up.

Serjeant Pemberton contra. Ex parte Def. He said that which he took to be the only Question in the Case was admitted, viz. That such a Custom as this to enclose was good; and so it has béen adjudged in Sir Miles Corbet's Case, 7 Co. But as to the Objections which have been made, the Defendant admits the Prescription for Right of Common, but saith, he may enclose against the Commoners, by reason of a Custom, which is a Barr to his very Right of Common, and therefore need not confess it with a bene & verum est, neither could he traverse the Prescription, because he hath admitted it. 'Tis true, where one prescribes to have Lights in his House, and another prescribes to stop them up; this is not good, because one Prescription is directly con­trary to the other; and for that reason one must be traversed; but here the Defendant hath confessed, that the Plaintiff hath a Right of Common, but tis not an absolute, but a qualified Right, against which the Defendant may Enclose; and here being two Prescriptions pleaded, and one of them not being confessed, it must from thence necessarily follow, that the other is the Issue to be tryed, which in this Case is, whether the Defendant can enclose or not.

The Chief Iustice, and the whole Court were of Opinion,Curia. that where there are several Free-holders, who have Right of Common in a Common Field, that such a Custom as this of enclosing is good, because the remedy is reciprocal; for as one may enclose, so may another. But Iustice Atkyns doubted much of the Case at Bar, because the Defendant had pleaded this Cu­stom to Enclose in barr to a Freeholder, who had no Land in the Common Field, where he claimed Right of Common, but prescribed to have such Right there, as appendant to two Acres of Land he had alibi, for which reason he prayed to amend upon pay­ment of Costs.

Attorny General versus Sir Edward Turner, in Scaccario.

Exposition of the Kings Grant. INformation. The Case was, Viz. The King by Letters Pa­tents granted several Lands in Lincolnshire, by express words; and then this Clause is added, upon which the Question did arise, Nec non totum illud fundum & solum & terras suas contigue adjacen' to the Premisses, quae sunt aqua cooperta vel quae in posterum de aqua possunt recuperari; and afterwards a great quantity of Land was gained from the Sea; and whe­ther the King or the Patentee was intituled to those Lands, was the Question.

Devise of a possibility good by a common person. 2 Cro. 509. pl. 21. 1 Bulst. 194. Sawyer for the King argued, that he had a good Title, because the Grant was void, he having only a bare possibility in the thing granted at the time.

But Levins on the other side insisted, that the Grant of those Lands was good, because the King may Grant what he hath not in possession, but only a possibility to have it. But admitting that he could not make such a Grant; yet in this Case there is such a certainty as the thing it self is capable to have, and in which the King hath an Interest; and it is hard to say that he hath an Interest in a thing, and yet cannot by any means dispose of it.

If it should be objected, that nothing is to pass but what is contigue adjacen' to the Premisses granted, and therefore an Inch or some such small matter must pass and no more; certainly that was not the intention of the King, whose Grants are to be con­strued favourably, and very bountifully for his Honour, and not to be taken by Inches.

Postea, Company of Ironmon­gers and Naylor.If there are two Marshes adjoyning, which are the Kings, and he grants one of them by a particular name and descrip­tion, and then he grants the other contigue adjacen' ex parte au­strali, certainly the whole Marsh will pass; and 'tis very usual in pleading to say a Man is seised of a House or Close, and of another House, &c. contigue adjacen', that is to be intended of the whole House.

In this Case the King intended to pass something when he granted totum fundum, &c. but if such construction should be made as insisted on, then those words would be of no significa­tion. 'Tis true, the word illud is a Relative, and restrains the general words, and implies that which may be shewn, as it were [Page 107] with a Finger; and therefore in Doddington's Case,2 Co. 32. a Grant of omnia illa Mesuagia, scituate in Wells, and the Houses were not in Wells, but elsewhere; the Grant in that Case, was held void, because it was restrained to a certain Village, and the Pronoun illa hath reference to the Town; but in this Case there could be no such certainty, because the Land at the time of the Grant made, was under Water.

But if the Patent is not good by the very words of the Grant, the non obstante makes it good, which in this Case is so par­ticular, that it seems to be designed on purpose to answer those Objections of any mistake or incertainty, in the value, quantity, or quality of the thing granted, which also supplies the defects for want of right instruction given the King, in all cases where he may lawfully make a Grant at the Common Law, 4 Co. 34.Moor pl. 571. Bozuns Case.

And there is another very general Clause in the Patent, viz. Damus praemissa adeo plene, as they are or could be in the Kings hands, by his Prerogative or otherwise.Ante Adeo plene are opera­tive words, Whistlers Case 10 Co. And there is also this Clause omnes terras nostras infra fluxum & refluxum maris. 'Tis true,Sid. 149. these words praemissis praed' spectan' do follow; from whence it may be objected, that they neither did or could belong to the Premisses; and admitting it to be so, yet the Law will reject those words, rather than avoid the Grant in that part.

In the Case of the Abbot of9 Co. 27. b. Strata Marcella, the King grant­ed a Mannor Et bona & catalla felonum dicto Manerio spectan'; now though such things could not be appendant to a Mannor, yet it was there adjudged that they did pass.

Such things as these the King hath by his Prerogative, and some things the Subject may have by Custom or Prescription; as Wrecks, &c. and in this very Case 'tis said, that there is a Custom in Lincolnshire, that the Lords of Mannors shall have derelict Lands, and 'tis a reasonable Custom; for if the Sea wash away the Lands of the Subject, he can have no re­compence, unless he should be entituled to what he gains from the Sea; and for this there are some Authorities, as Sir Hen­ry Constable's Case,2 Roll. 168. 5 Co. Land between High-Water and Low-Water Mark may belong to a Mannor:

But no Iudgment was given.

Morris versus Philpot in B. R.

Release by an Execu­tor before Probate.THE Plaintiff as Executor to T. brings an Action of Debt against the Defendant, as Administrator to S. for a Debt due from the said intestate, to the Plaintiffs Testator. The De­fendant pleads, that the Plaintiff released to him all Brewing Ves­sels, &c. and all other the Estate of S. lately deceased (this Re­lease was before probate of the Will,) to which Plea the Plain­tiff demurred; and whether this Release was a good Barr to the Plaintiffs Action was the Question.

Ex parte Quer.It was said for the Plaintiff, that it was not; for if a Conu­see release to the Cognisor all his right and title to the Lands of the Cognisor, and afterwards sues out Execution, yet he may extend the very Lands so released; so if the Debtee release to the Debtor all his right and title which he hath to his Lands, and after­wards gets a Iudgment against him, he may extend a Moiety of the same Lands by Elegit; the reason is, because at the time of these Releases given, they had no title to the Land, but only an inception of a right, which might happen to take place in futuro; so here a Release by the Executor of the Debtee to the Admini­strator of the Debtor, before Probate of the Will, is not good; because by being made Executor, he had only a possibility to be entituled to the Testators Estate, and no Interest 'till Probate, for he might refuse to prove the Will, or renounce the Execu­torship. It is true, a Release of allGodol. 145. pl. 4. Actions had been good by the Executor before Probate, because a right of Action is in him, and a Debt which consists meerly in Action is thereby discharged; but in such case a Release of all right and title would not be good, for the reasons aforesaid.

Ex parte Def.But for the Defendant it was insisted, that this Release was a good Plea in Barr, for if a Release be made by an Executor of all his right and title to the Testators Estate, and then the Ex­ecutor sues the Party Released (as the Administrator is sued in this Case) for a Debt due to the Testator, the Release is good; because if he had recovered, in this Case the Iudgment must be de bonis Testatoris, which is the subject matter, and that being released, no Action can lye against the Administrator. Adjornatur.

DE Term. Sancti Mich. Anno 28 Car. II. in Banco Regis.

Piggot Lessee of Sir Thomas Lee versus the Earl of Salisbury. Intrat' Pasch. 26 Car. 2. Rot. 609.

IN Ejectment for fourteén Houses and some Gardens in the Parish of St. Martin in the Fields; Warranty where by displacing of a Right by a Fine sur concessit, it shall barr the Heir. Jones 68. the Iury find as to all but one Moiety for the Defendant, as for the other Moie­ty they find that these were formerly the Houses of one Nightingale, who was seised thereof in Fée, and made a Lease of them which commenced 1 Apr. 7 Jac. yet in being.

That the Reversion descended to Briget his Daughter and Heir, who married William Mitton, by whom she had a Daughter named Elizabeth.

That upon the Marriage of the said Elizabeth with Francis the Son of Sir Oliver Lee, by Fine and other Settlements these Houses were settled to the use of the said Bridget for Life, then to the use of Francis Lee and the said Elizabeth, and the Heirs on the Body of the said Elizabeth to be begotten by Francis.

And for want of such Issue to William Mitton for Life, and af­terwards to the right Heirs of Bridget Mitton for ever.

William Mitton and Bridget his Wife before the expiration of the Term levy a Fine sur concesserunt to two Cognisees, where­in the said Husband and Wife conced' tenementa praed' & totum & quicquid habent in tenementis praed' cum pertin̄ for the Life of the said Husband and Wife, and the Survivor of them with Proclamations.

They find that the Lessee for years attorned, and that the Fine thus levied was in Trust for the Earl of Salisbury, and that be­fore [Page 110] the first day of February before the Action brought he entred by the direction of the two Cognizees, and that he was seised prout Lex postulat.

That 1 Febr. 7 Jac. Sir Oliver Lee, Francis Lee his Son and Heir, and Elizabeth his Wife, William Mitton and Bridget his Wife, by Bargain and Sale convey the Premises to the Earl and his Heirs, which was enrolled in Chancery, in which Deéd there was a Warranty against Sir Oliver and his Heirs.

That in the same Term, viz. Octab. Purificationis, William Mitton and Bridget his Wife, levyed a Fine sur Cognisance de droit come ceo, &c. to the Earl.

That Francis Lee was Son and Heir of Sir Oliver Lee.

That Sir Oliver and Elizabeth died in the Life-time of Francis, and that Francis died leaving Issue Sir Thomas Lee, the now Lessor of the Plaintiff.

That the Warranty discended upon him being inheritable to the Estate Tail.

That the Estate of the Earl of Salisbury descended to the pre­sent Earl, who was the Defendant.

That Sir Thomas Lee entred and made a Lease to the Lessor of the Plaintiff.

Question.The Question upon this Special Verdict was, if by the Fine sur concesserunt levied 7 Jac. the Estate which the Husband and Wife had in possession only passed, or whether that and the Estate for Life, which the Husband had after the Tail spent, passed likewise.

If the latter, then they passed more than they could lawfully grant, because of the intervention of the Estate Tail; and then this Fine wrought aCo. Lit. 338. b displacing or divesting the Estate of Wil­liam Mitton for Life in Reversion and turned it into a Right; and if so, then this collateral Warranty of Sir Oliver Lee will discend on Sir Francis, and from him to the Plaintiff, and will barr his Entry; But if the Estate was not displaced and turned into a Right at the time of the Warranty, then the Heir is not barred by this collateral Warranty of his Ancestor.

This Case was argued by Serjeant Pemberton for the Plaintiff, and by Sir William Jones the Attorny General for the Defendant.

Ex parte Quer.And for the Plaintiff it was said, that this Fine passed only the Estate which William Mitton and his Wife had in possession and no other, and therefore worked no divesting; and his Rea­sons were:

[Page 111] 1. Such a Construction seems most agreeable to the intention of all the Parties to the Fine.

2. It may well stand with the Nature and the Words of the Fine.

3. It will be most agreeable both to the Iudgments and Opi­nions which have formerly béen given in the like Cases.

And as to the first of these it will be necessary to consider what will be the effect and consequence of levying this Fine both on the one side and the other. It cannot be denyed but that there was a Purchase intended to be made under this Fine, and that the Parties were willing to pass away their Estate with the least hazard that might be to themselves; neither can it be imagined that they intended to defeat this Purchase as soon as it was made, which they must do if this Fine works a Forfeiture; for then he in Remainder in Tail is entituled to a present Entry, and so the Estates for Life which the Baron and Feme had are lost, and there was a possibility also of losing the Reversion in Feé, which the Tenant in Tail after his Entry might have barred by a Common Recovery.

And had not the Parties intended only to pass both the Estates, which they lawfully might pass, why did they levy this Fine sur concessit? They might have levyed a Fine sur Cognisance de droit come ceo, &c. and that had beén a Disseisin.

Besides what need was there for them to mention any Estate which they had in these Houses, if they had intended a Disseisin? But this being done, such a Construction is to be made as may sup­port the intent of the Parties; and it would be very unreasonable, that what was intended to preserve the Estate should now be ad­judged to work a Dissesin so as to forfeit it; and such a Disseisin upon which this collateral Warranty shall operate and barr the Estate in Remainder.

And therefore no more shall pass by this Fine than what lawful­ly may; and rather than it shall be construed to work a Wrong, the Estate shall pass by fractions; for both the Estates of Wil­liam Mitton for Life, are not so necessarily joyned and united by this Fine that no room can be left for such a Construction.

2. Such a Construction will not agreé with the Nature and Words of this Fine. 'Tis true, a Fine as it is of the most so­lemn and of the greatest Authority, so 'tis of the greatest force and efficacy to convey an Estate, and the most effectual Feoffment of Record where 'tis a Feoffment, and likewise the most effectual Release, where 'tis to be a Release.

But on a bare Agreément made in Actions betwéen the De­mandant and Tenant at the Barr, and drawn up there, the Iudges will alter and amend such Fines, if they did not in all things answer the intention of the Parties.24 Ed. 3. 36.

Postea.'Tis agreed that Fines can work a Disseisin when they can have no other Interpretation, as if Tenant pur auter vie levy a Fine to a Stranger for his own Life, 'tis more than such a Te­nant could do, because his Estate was during the Life of another and no longer.

So a Fine sur Cognisance de droit, &c. implies a Fée, which being levyed by any one who has but a particular Estate will make a Disseisin.

But this Fine sur concessit has beén always taken to be the most harmless of all others, and can be compared to nothing else than a Grant of totum statum suum & quicquid habet, &c. by which no more is granted than what the Cognisor had at the time of the Grant, and so it hath been always construed.

Indéed there is a Fine sur concessit which expresses no Estate of the Grantor, and this is properly levyed by Tenant in Fée or Tail; but when particular Tenants pass over their several E­states they generally grant totum & quicquid habent in tene­mentis praedictis, being very cautious to express what Estate they had therein.

When this Fine sur concessit was first invented the Iudges in those days looked upon the Words quicquid habent, &c. to be insignificant, and for that reason in Anno 17 E. 3. 66. they were refused: The case was; Two Husbands and their Wives levied such a Fine to the Cognisee, and thereby granted totum & quic­quid habent, &c. which Words were rejected, and the Iudge would not pass the Fine, because if the Party had nothing in the Land then nothing passed; and so is 44 Ed. 3. 36. By which it appears that the Iudges in those times thought these Fines did pass no more than what the Cognisor had; and for this there are multitude of Authorities in the Year Books.

Now these Words cannot have a signification to enlarge the Estate granted, they serve only to explain what was intended to pass; for in the Case at the Barr, if the Grant had béen totum & quicquid habent in tenementis praedictis there would have been no question of the Estate granted; but the Cognisors having grant­ed tenementa praedicta, they seem by these subsequent Words to recollect themselves, viz. totum & quicquid habent in tenemen­tis praedictis.

Object. But it may be objected that the Limitation of the E­state, viz. durante vita eorum & alterius eorum diutius viventis works a Disseisin, because by those Words two Estates for Life pass entire in possession, whereas in truth there was but one Estate for Life of the Husband, in possession; and therefore this was more than they could grant, because the Estate Tayl came between the Estate which the Husband and Wife had for their Lives and for the Survivor of them, and the Estate which the Husband had for his own Life.

And this is farther enforced by that Rule in Law, That Estates shall not pass by fractions; for otherwise there can be no reason why they should not thus pass.

Answ. But this Rule is very fallible, and not so much to be regarded; 'tis true, the Rule is so far admitted to be true, where without inconveniency Estates may pass without fraction; but where there is an inconveniency it may be dispensed withal, it be­ing such an inconveniency as may appear to the Iudges to make the thing granted, to go contrary to the intent of the Parties.

And that such Interpretations have been made, agrees with the third Reason proposed in this Case, viz. That it hath recei­ved countenance by judicial Opinions and determinations in for­mer Iudgments, 14 E. 4. 4. 27 H. 8. 13. 1 Co. 67. Bredons Case, which was thus; Tenant for life, remainder in tayl to A. remainder in tayl to B. Tenant for life, and he in the first remainder levied a Fine sur cognisance de droit come ceo; 't was adjudged that this was no Discontinuance of either of the Remainders,1 Roll. Abr. lit. I. pl. 4. 1 Inst. 45. a. Cro. Car. 406. because each of them gave what he might lawfully, viz. The Tenant for Life granted his Estate, and the Remainder-man passed a Fee-simple determinable upon his Estate Tail, and yet each of their Estates were still divided.

On the other side it was said, that in all Cases where the person who hath a particular Estate, takes upon him either by Feoffment in pais or by Fine, which is a Feoffment on Record, to grant a greater Estate than he hath (as in this Case is done) though possibly the Estate of the Grantée may determin before that of the Grantor, yet 'tis a displacing the Reversion; as if a Man has an Estate for ten Lives, and makes a Grant for the Life of another; here is a pos­sibility, that the Estate which he granted may be longer than the Estate he had in the thing granted, because one Man may survive the Ten, and for that reason 'tis a divesting.

1. In this Case the Estate which the Husband and Wife had is to be considered.

2. What they granted.

And by comparing of these together it will appear whether they granted more than they had: The Husband and Wife had an E­state for the Life of the Wife, and (after the Estate Tail) the Husband had an Estate for his own Life, now they grant an Estate for the Life of the Husband and Wife and the Survivor; What is this but one entire Estate in possession? No other Inter­pretation can be agréeable to the sense of the Words; for if it had been granted according to the true Estate which each had, then it should have been, first for the Life of the Wife, and after the Tail spent, then for the Life of the Husband.

The next thing to be considered is, Whether the Estate shall pass entire or by fractions? And as to that I need say no more than only to quote the Authority of that Iudgment given in Garret and Blizard's Case, 1 Roll. Abr. 855. which is shortly thus, viz. Tenant for Life, Remainder for Life, Remainder in Tail, Remainder in Fee to the Tenant for Life in Remainder; this Tenant for Life in Re­mainder levies a Fine come ceo, &c. it was adjudged a Forfeiture of his Estate for Life; so that the Remainder Man in Tail might enter after the death of the Tenant for Life in possession; for it shall not be intended that he passed his Estate by fractions, viz. an Estate in Remainder for Life and a Remainder in Feé expectant upon the Estate Tail, but one entire Estate in possession; and 'tis not like the Authority in Bredon's Case, for there the Estate for Life and the Estate Tail followed one another.

Next it is to be considered, whether after they granted om­nia illa tenementa, the subsequent Words & totum statum suum, &c. do not come in by way of Restriction, and qualifie what went before.

But those subsequent Words are placed in this Fine, not by way of Restriction but of Accumulation.

Litt. 345In Littleton Sect. 613. 'tis said, that if Tenant in Tail grants all his Estate in the Tenements, Habendum all his Estate, &c. in this Case the Alienee hath but an Estate for the Life of the Tenant in Tail; and 'tis observable that totum statum in the Case put by Littleton is both in the Premisses and the Habendum: But if I will grant tenementa praedicta in the Premisses, and then make another Limitation in the Habendum, there totum statum & quic­quid, &. can make no Restriction, if it should, it will spoil most Conveyances.

It is agréed, that if those Words had béen omitted in this Case, then by this Fine the Reversion would be displaced, and therefore much weight is laid upon these Words to explain the meaning of the Parties thereby, and that when they granted tenementa praedicta they meant totum statum, &c.

But here is no ground for such an Interpretation; 'tis an entire Grant of the Houses by the Words Tenementa praedicta; and the subsequent Words shall never be allowed to make such a Re­striction which shall overthrow the frame of the Déed.

If a Man, who has no Estate in the Land, passes it by Deéd, this shall work against him by way of Estoppel; and these Words totum & quicquid, &c. which are usual in all Convey­ances, shall make no alteration of the Law; for if such con­struction should be made of these Words, as hath béen objected, then in all Déeds where they are inserted, if it happen that the Party hath no Estate, or a void Estate, nothing passes; and then Covenants, Estoppels, and Warranties would be no Securities in the Law.

2. These Words totum & quicquid, &c. come in a distinct Clause of the Grant; the precedent Words are, Tenementa prae­dicta & totum statum & quicquid, &c. reddiderunt, which are two parts, a Grant and a Release, and have no dependance upon each other, being distinct Clauses, and therefore these Words shall not be any Restriction of the former; but if one Clause be carried on with a connexion, so as 'tis but an entire sentence; in such Case a Man may restrain either general or particular Words, Hob. 171. in Stukely and Butler's Case.

3. Admitting these Words are a Restriction of the former, yet the Estate is so limited, that if the first Words were out of the Case, this later Clause he said was enough for his purpose, for the Grant is not in the usual Words by which Estates pass, viz. Estate, Right, Title, Interest, but Totum & quicquid, &c. for the Lives of the Grantors and the Survivor, which shews that they took upon themselves to grant for a longer time than they had in possession; if they had only granted it for both their Lives, they might have some colourable pretence.

4. 'Tis apparent from the Clause of the Warranty that the intent of the Parties was to grant an Estate expresly in pos­session for the Lives both of the Husband and his Wife; for 'tis that which the Grantée shall hold, &c. during their Lives and the longest Liver.

Object. The Case of2 Rol. Abr. 36, 403. Eustace and Scaven has been objected: 'Tis reported in 2 Cro. 696. which is, Feme Covert and A. are Iointenants for Life, the Husband and Wife levy a Fine to A. the other Iointenant, and grant the Land and totum & quicquid habent, &c. to him during the Life of the Wife with Warranty, the Wife survives A. her Companion; Adjudged that these Words Totum & quicquid shall not enure by way of Grant and severance of the Iointure of the Moiety, for then there would be an Occu­pancy; [Page 116] but they are restrictive only to the Estate of the Wife, and shall enure by way of Release to A. so that after his death he in Reversion may enter.

Answ. It would not be a Question in that Case, whether these Words were restrictive or not, for nothing was granted but what might lawfully pass, viz. during the Life of the Wife the other Ioyntenant; neither was there any stress laid on those Words; for Mr. Iustice Jones, who was a Learned Man and reported the same Case fol. 55. hath made no mention thereof, but hath wholly omitted those Words, which he would not have done, if the Case had depended upon them.

2. Object. Next, the Form of this Fine has been objected, and a President was cited Rast. Entr. 241. where such a Fine was levied and nothing passed but for the Life of the Conusor.

Answ. But no Authority can be produced, where a Man that had an Estate for Life in Possession and another in Remainder, and granted by the same Words, as in this Case, but that it was a Forfeiture.

3. Object. That the Law will not make a Construction to work a Wrong, and therefore if Tenant for Life grant generally for Life, it shall be interpreted during the Life of the Grantor.

Answ. That Case is without express Words, or shewing any time for which the Grantee shall have the thing granted; and therefore the Law restrains it to the Life of the Grantor, because it will not make Words which are doubtful and of incertain sig­nification to do any Wrong: But where there are express Words as in this Case, no other Construction can be made of them but that an Estate in possession was thereby intended to pass.

4. Object. That this Fine and Grant must be construed to enure according to the intent of the Parties, ut res magis valeat, and they never intended to make a Forfeiture.

Answ. Certainly no Man ever intended to make a Forfeiture of his own Estate, those are generally the effects of Ignorance and not of the Will, as the Case of Gimlet and Sands, Cro. Car. 1 Roll. Abr. 856. 391. where Tenant in Fee makes a Feoffment to two to the use of himself for Life, then to the use of his Wife for Life, Remainder in Tail to his Son and Heir, Remainder to his own right Heirs; and afterwards he made another Feoffment to Smith with Warranty; the Mother and Son join in another Feoffment, adjudged that this was a Forfeiture of her Estate for life, though she had no notice of the Warranty made by her Husband; for the Feoffment made by him was a publick Act upon the Land, and she ought to have taken notice of it; and though by her joining in the Feoffment with her Son, she did not intend to forfeit her [Page 117] Estate, yet the Law adjudges according to what is done: But in the Case at Barr, the intention of the Parties may be collected by the Act done; and there is great reason to pre­sume, that the Parties thereby intended to displace the Re­version; for the Husband joyning in the Fine, and in the Warranty (if it was no divesting) the Warranty is of no use.

Another Objection has been only mentioned, which is, that admitting this should amount to a displacing, if the Estate had been in possession; yet in this Case it would not, because it was prevented by the Lease for years in being.

But that cannot hinder the execution of this Fine; 'tis a Fine sur concessit, which is executory in its nature, and doth not pass any Estate, or take any effect 'till executed, and so is the Book, 41 5. 3. 14. b.

But in this Case the Fine was executed, which may be by mat­ter in pais, as well as by Scire facias, and as to this purpose, may be executed by the entry of the Conusor,1 Rep. 106. Dyer 376. b. without suing out any Execution, 38 Ed. 3. Brook tit. Scire facias 199.

If there had been a Fine executed, there would have beén lit­tle doubt left in this Case; and by the Attornment of the Les­see for years, it must be admitted that this Fine was execu­ted, as 8 Ed. 3. f. 44. For a Fine of a Reversion may be executed to all purposes by the Attornment of the Lessee for years; and if so, when a Fine executory is once executed, 'tis as good as a Fine sur Conusance de droit come ceo, to make a forfeiture of the particular Estate.

Where a Feoffment is made, and a Lease for years is in being, the Feoffment is not good; because in such case there must be a present transposition of the Estate,Postea, Moor and Pitt. which is hindred by the Lease.

But in case of a Fine, which is a Feoffment upon Record, a Lease for years is no impediment or displacing of the Reversi­on; for if Tenant in Tayl, expectant upon a Lease for years, levy a Fine, 'tis a discontinuance of the Tayl, and notwithstand­ing this Lease, the Fine has such an operation upon the Free-hold, that it displaces the Reversion in Fee, Co. Lit. 332. And therefore if a Lease for years prevents not a Discontinuance, it will much less hinder a displacing in this case.

But no Iudgment was given now in this Case; another mat­ter being debated, whether the Plaintiff could have Iudgment, because he was barred by the Statute of Limitations; for it did not appear that he had been in possession for twenty years past, and [Page 118] the Verdict hath not found any Claim, or that the Plaintiff was within the Proviso of the Act.

Waterfield versus the Bishop of Chichester.

Oath Ex Of­ficio not to be admini­stred. A Prohibition was granted last Easter-Term, to the Bishop of Chichester, upon a Suggestion made by Waterfield, that he being chosen Churchwarden of the Parish Church of Arun­del in the County of Sussex, the Bishop tendered him an Oath ex officio, which was, that he should Present every Parishioner, who had done any Offence, or neglected any Duty mentioned in certain Articles, contained in a printed Book delivered to him; some of which Articles concern the Church-warden himself, and so in effect he was to swear against himself, in case of any default, which is expressly against the Statute of 13 Car. 2.Sid. 232 cap. 12. which prohibits any person having Ecclesiastical Iurisdiction, to admi­nister the Oath ex officio, or any other Oath, whereby the per­son to whom 'tis administred, may be charged to accuse himself of any criminal matter, whereby he may be lyable to any Cen­sure or punishment; and because the Bishop had Excommunica­ted him for refusing such Oath, he prayed a Prohibition, which was granted, quoad the compelling him to make any answer to the said Articles concerning himself, and the Excommunica­tion was discharged.

But now upon the motion of Serjeant Brampston a Consul­tation was awarded, because it appeared by the Affidavit of the Commissary who tendred this Oath, and likewise by the act of the Court, that he was Excommunicated for refusing to take the Oath of a Church warden, according to Law, which was the on­ly Oath tendred, and therefore the ground of the Prohibition being false, a Consultation was awarded.

In this Prohibition it was recited, That the Bishop cannot give an Oath but in two cases, viz. in matters Testamentary, and Matrimonial, whereas they have authority in many cases more; 'tis true also, that until his Iurisdiction was increased by Act of Parliament, he could hold Plea in none but those two causes,2 Inst. 487, 537. but by the Statute De circumspecte agatis, and of Arti­culi Cleri, he may now hold Plea in many other cases.

The Bishop informed the Lord Chief Iustice, that the Plain­tiff Waterfeild had caused 2000 of the Prohibitions to be print­ed in English, and had dispersed them all over the Kingdom, [Page 119] intituling them a true translated Copy of a Writ of Prohibition, granted by the Lord Chief Iustice, and other the Iustices of the Court of Common Pleas, in Easter-Term, 1676. against the Bi­shop of Chichester, who had proceeded against and Excommuni­cated one Thomas Waterfield, a Churchwarden, for refusing to take the Oath usually tendred to persons in such Office; by which Writ the Illegality of all such Oaths is declared, and the said Bishop commanded to take off his Excommunication: And this was declared by the Court to be a most seditious Li­bel, and gave order to enquire after the Printer that he might be prosecuted.

Eleanor Plummer versus Sir Jeremy Whitchot, Intr. Trin. 27 or 28 Car. 2. Rot. 301. in B. R.

IN an Action of Debt for an Escape; Vpon Nil debet pleaded,Debt for Es­cape lies against the Warden of the Fleet, as superior, the Grantee for life be­ing insuffi­cient. Jones 60. 1 Vent. 314. the Iury found a special Verdict; upon which the Case was this, Viz. That Sir Jeremy Whitchot was seised in Fee of the Office of Warden of the Fleet, and of several Mesuages thereunto be­longing, and being so seised, did make a Grant thereof to one Duckenfield for life, and for the lives of three more. Duckenfield by Rule of Court was admitted into the said Office, being appro­ved by the Court, and esteemed a Man of an Estate. He suf­fers a Prisoner afterwards to Escape, and being not able to make the Plaintiff satisfaction, this Action was brought against Sir Jeremy Whitchot, the now Defendant; and whether he was chargeable or not with this Action was the Question.

Wallop, who argued for the Plaintiff said,Ex parte Quer. That he would not take up any of their time to make a Narrative of Imprisonment for Debt, or what remedy there was for Escapes at Common Law, and what remedy by the Statute; but supposing an Action of Debt will lye, whether it be by the Statute of Westm. 2. cap. 11. (for at the Common Law before the making of that Act,Sid. 306, 397. an Action of Debt would not lye against the Goaler for an Escape, but a special Action on the Case, grounded on a Trespass) or whether this Action lay against the Defendant by the Statute of 1 R. 2. 2 Inst 382. cap. 12. which gives it against the Warden of the Fleet, who in this case had not the actual Free-hold in possession, but the inheritance, and not the immediate Estate, but the Reversion, is in Question.

The Office of the Warden of the Fleet, may be taken in two capacities, either as an Estate or common Hereditament, where­in [Page 120] a Man may have an Inheritance, and which may be trans­ferred from one to another; or as a publick Office, wherein the King and the People may have a special Interest.

As 'tis an Inheritance transferrable, 'tis subject to the Rules of Law in point of Descent, and is demisable for Life, in Fee, Tayl, Possession or Reversion, and in many things is common, and runs parallel with other Estates of Inheritance. 'Tis true, he cannot grant this Office for years, not for any disability in the Grantor, but in respect of the matter and nature of the thing granted, it being an Office of Trust and Personal, for otherwise it would go to the Executor, which is inconvenient, 9 Co. 96. Sir George Reynell's Case.

To enquire what superiority the reversioner hath over the par­ticular Estate is not to the point in Question; but there is such an intimacy and privity between them, that in Iudgment of Law they are accounted as one Estate.

And therefore Littleton Sect. 452, 453, saith, that a Release made to a Reversioner shall aid and benefit him who hath the par­ticular Estate, and likewise a Release made to the Tenant of the Freehold, shall enure to him in Reversion, because they are privies in Estate; so that these two Estates in the Case at Bar make but one Office.

This is a publick Office of great Trust, and concerns the Administration of Iustice; and therefore 'tis but reasonable to admit the Rule of Respondeat Superior, lest the Party should be without remedy; and the rather, because Execution is the life of the Law, 39 H. 6. 33.

He who is in the Office as Superiour, whether it be by droit or tort is accountable to the King and his People, and this brings him within the Statute of Westm. 2. cap. 11. or 1 R. 2.

If the Defendant had granted the Office in Fee to Ducken­feild before any Escape had been, and the Grantee had been ad­mitted, the Defendant then had been discharged; or if he dye before or after the Action brought and before Iudgment, moritur actio cum persona, for if he had not reserved something he could not be charged, and if he had parted with the Inheritance, the privity had been gon, but by reserving that, he hath made him­self liable; for now he is Superiour, he may exact Homage and Fealty, and the particular Tenant is said to be attendant up­on the Reversion, and these are marks of Superiority.

And this Rule of respondeat superior holds not only between the principal Officer and his Deputy, and between the Master and his Servant; but in many other Cases one is to be an­swerable for another, as

[Page 121] 1. Where a Man has power to elect an Officer, he is charge­able; so the County hath power to elect Coroners, and if they fail in their Duty, the County shall be charged, for by reason of the power they had to elect, they are esteemed Superiours,4 Inst. 314. 2 Inst. 175.

2. Where one Man recommends another to an Office con­cerning the Kings Revenue, the person who recommends is li­able, if the other prove insufficient; and for this there is a no­table Case 30 E. 3. 6. 'Tis Porter's Case, cited in the Case of the Earl of Devonshire, 11 Co. 92. b. Where Porter being Master of the Mint, covenanted with the King to deliver him Mony within 8 days for all the Bullion delivered ad Cambium Regis to Coyn, which he did not perform, Et quia Walwyn & Picard duxerunt & praesentaverunt the said Porter, ideo consideratum est quod onerentur versus Dominum Regem: 4 Inst. 466. And why not the Defendant in this Case, who praesentavit the said Duckenfeild to the Court tanquam sufficientem, the reason being the same? and the King is as much concerned in the ordering this Court of Iustice, as in the ordering of his Coffers; for as the Trea­sure is Nervus Belli, so the execution of the Law is Nervus Pacis.

3. In the Case of a dependant Officer, though he is a proper Officer and no Deputy, the person who hath the Reversion shall answer, as in 32 H. 6. 34. 2 Inst. 382. 9 Rep. 98. Dyer 278. b. The Duke of Norfolk who had the Inheritance of the Marshalsea, was charged for an Escape suffered by one Brandon, who was Tenant for Life, in possessi­on of the said Office; and there is great reason it should be so; for when a principal Officer may make an inferiour Officer, who afterwards commits a Forfeiture, the superiour shall take ad­vantage of this Forfeiture, and 'tis as reasonable he should he answerable for his Miscarriage, Cro. Eliz. 384. Poph. 119 The Earl of Pem­brook against Sir Henry Berkley.

And therefore admitting the Defendant is out of the Statute, yet he is within the Maxim of Respondeat Superior, which is not grounded upon any Act of Parliament, as appears in the Case of the Coroner, and the Statute of Westm. 2. And all other Acts which inculcate this Rule, are but in affirmance of the Common Law; and this is not only a Rule of the Com­mon, but also of the Civil Law, which is served with the Equity of this Maxim, in Cases of like nature; and since 'tis purely remedial, such a Construction ought to be made, as may most ad­vance the remedy, 2 Inst. 466.

In the Case of Morse and Slue, lately in this Court,1 Ventr. 191, 238. the Question was, whether a Master of a Ship should be charged upon [Page 122] the Common Custom of England, for negligently keeping Mer­chants Goods? And adjudged that he was, though robbed: Lex Mer­catoria makes a provision for it; for the remedy against the Ma­ster is most direct and immediate; that against the Owner is collateral, in favour of the Merchant, to whom datur electio and therefore that the Interest of the Merchant might be served, the Law in that case provides a double Remedy.

And in Linwood, lib. 3. De Clerico non residente f. 73. verbo Vicarius; 'tis said, that in the same Church there may be a Rector and a Vicar, and the Cure of the Church may be divi­ded between them; the Vicar is not the Deputy of the Rector, but hath a distinct Office from him; and as the Temporalities of the Vicar are but a derivation from the Benefice of the Rector, so his Cure is derived from that of the Rector also.

In like manner, Duckenfield here is not a Deputy to the De­fendant, but an immediate and proper Officer, and the habitual care and custody is in him, which is enough to bring him with­in the Rule of Respondeat Superior.

These Instances were given, because this is not only a Max­im in England; but is of Foreign production, and adapted to the Rule of Common Law, Vide Bracton, Fleta, Selden.

The Statute de Scaccario 51 H. 3. Enacts, That if any man be received into Office in the Exchequer, without the Treasurer's Licence, or if he hath such Licence, and doth Trespass, he shall be punished according to his Trespass, if he have whereof, and if he have not, then he who put him in the Office shall be char­ged, and if he be not sufficient his Superiour shall be charged; so that they shall all answer in their several Stations. And this Statute was made in affirmance of the Common Law; if there­fore the Superiour of a Superior should answer, why shall not the Defendant in this case answer for his substitute; for though the Warden is not sworn to appoint one who is suffi­cient to satisfie, he is bound to do it, and 'tis no argument to say that he is discharged, because Duckenfield was appointed by the Court; for that is a work of supererrogation, which is left in the discretion of the Court, and may be done or omitted as they shall think necessary, but is not conclusive, 39 H. 6. 34. es­pecially since the Iury have not found that the Court took any examination whether he was sufficient or not; but that he had forfeited his Office, having wilfully suffered a Prisoner to Es­cape, and then the Defendant is or may be the actual Officer, and having taken Security ought to be charged.

Sir William Jones, who argued on the other side,Ex parte Def. before he spoke to the Case endeavoured to remove a doubt upon the Spe­cial Verdict, which found that the Defendant had taken Security from Duckenfield to indempnifie him from Escapes.

This says he might be an Argument at a Nisi Prius to induce a Iury to find Damages, but could not make a Man chargeable who was not so before.

2. Though the Defendant had a Covenant from Duckenfield to pay 1500 l. per annum to him, yet that will not make him more lyable than if nothing had been to be paid; neither did he lay any weight upon it, that the Defendant had any notice of the insuffi­ciency of Duckenfield, for if he is chargeable he is bound to take notice at his peril; and no Body can believe that the Court of Common Pleas is chargeable, for that was mentioned in the Ar­gument for the Plaintiff, that the Superior of a Superior shall be charged where he is insufficient; neither did he insist upon the Rule in the Common Pleas, by which Duckenfield was admitted; but he considered,

1. Whether the Defendant was chargeable by the Statute of Westm. 2. cap. 11.

2. If he could clear him from that Statute whether he was chargeable at the Common Law or by any other Statute.

And he said that he was not chargeable by the Statute of Westm. 2. which gives an Action of Debt against the Gaoler for an Escape: Many Authorities might be cited to prove that where a Man is in Execution on an Action of Debt, that such an Execution is not within that Statute, 7 H. 6. 5. Bro. tit. Escape pl. 9. Pl. Com. 35. It was doubtful there how a Gaoler became chargeable for the Escape of a Man who was in Execution for Debt; but were he in Execution for Matter of Accompt he is chargeable by the express Words of the Statute, which are Caveat sibi Vicecomes & Custos Gaolae; and the Parliament in 1 R. 2. did not think the Warden chargeable, for if they did, to what purpose was it to make the Warden of the Fleet lyable to an Action of Debt for an Escape of a Man in Execution for Debt, if he was charge­adle before by that Statute of Westm. 2; This was urged to shew that at that time it was not clear.

But because there are Authorities that seem another way, he did not affirm or deny it after such varieties of Opinions, but procéeded to argue these two Points.

1. That the Rule of Respondeat Superior doth not extend to this Case.

2. That a Reversioner is not a Superior.

[Page 124] Postea. 1. The Statute de Donis is by some called the Statute of great Men, because the intent of it was for the preservation of their Estates; and this Statute being made in the same13 Ed. 1. year seems also to have a particular regard to the Lord to give him a quick and more severe remedy against his Servant and Bayliff than he had before; for it makes him in effect his own Iudge against him in Cases of Accompt, because it gives him Authority to assign Auditors, and such as he appoints must stand, and the Servant has no remedy but by WritF. N. B. 129. ex parte talis in the Exche­quer; yet no Man ever thought that by the Equity of this Sta­tute the same may be done in an Action of Debt, and therefore the difference in the Proceedings between Actions of Accompt and Debt seems to imply that an Action of Debt is not within the Rule of Respondeat Superior.

2. There is a great difference betweén the Restraint of Priso­soners in Execution for Debt, and those who are imprisoned by this Act for Arrear of Rent, which directs that they shall be arrested &c. & carceri mancipentur in ferris; but this the Gaoler could not have done at the Common Law; neither was it ever practised or allowed by the Law that a Prisoner should be so used, who is in Execution for Debt, unless he be unruly and endeavour to escape; but 'tis expresly against the Law to do it where there is no such reason, because a Prison is for the safe Custody of Men and not to punish them, 1 Inst. 260. a. So that it appears by this that a stricter remedy was provided for Executions in Accompt than for those in Debt.

3. There are certain persons also who are made chargeable by this Statute when the Execution is in Accompt, who cannot be charged in Debt; for the Statute Enacts, That if the Party escape, the Officer in whose Custody he is shall answer, sive infra Libertatem sive extra; so that the Gaoler shall be charged whe­ther he be of a Franchise or of the County at large; but if a Man is in Execution for Debt, and then escapes, the Gaoler is not lyable, but the Sheriff; though the3 Co. 71. Westby's Case. Gaoler hath the Custody of the Body of one whom the late Sheriff did not deliver over to the present Sheriff: So that in this also there is a difference upon this Statute between Actions of Accompt and Actions of Debt, and therefore the Clause therein of Respondeat Supe­rior being made upon a particular occasion only in the Case of Ac­compt, shall not be extended to other Matters, and can in no wise influence this Case, which for other Reasons cannot be govern­ed by that Rule, if extended to all who have power to depute an Officer, and thereby give him an Interest, or to appoint one for a time.

[Page 125] 2. Point. 1. Because he in Reversion is not in propriety of Speech a Superior; for 'tis not said that a Reversioner after an Estate for Life is Superior and of more accompt in the Law than he who hath the particular Estate, but on the contrary he who hath the Fréehold is of greater accompt and regard in the Law than the Reversioner after him; and if (as it hath been objected) both make but one Estate then there can be no Supe­riority, and it would be very hard and difficult for any Man to prove that any Attendancy is made by the Tenant for Life upon him who hath the Reversion.

2. Here is room enough within the Statute to satisfie that word Superior by a plain and clear construction without bringing in the Reversioner; for if the Sheriff makes a Deputy or a Lord makes Bayliff of a Liberty, the Sheriff and the Lord are properly the Superiors.

3. This word Superior is used in the Statute made the same year with this cap. 2. in signification agreeable with the Case in question; for it recites that where Lords of Fees distrain their Tenants for Rents and Services, and they having replevied their Cattle do alien or sell them, so that a Return cannot be made; then it provides that the Sheriff or Bailiff shall take Pledges to prosecute the Suit before they make deliverance of the Distress, and if the Bayliff be not able to restore (that is, if he take insufficient Pledges) the Superior shall answer, by which the Parliament could mean no other than the Lord of that Li­berty; for if it should be otherwise there would be no end of Su­periors; as if there is a Bailiwick in Fee of a Liberty, and the Bayliff thereof grants it for Life, in this Case there are two Su­periors, for the Lord of the Bayliff is one, and the Bayliff himself is another, which cannot be, 2 Inst. 382.

There is a Congruity in Law in saying the Sheriff and Lord are Superiors, but there can be none in making the Reversioner a Superior.

The Lord may lose the Liberty if his Bayliff for Life or in Fee commit a Forfeiture, as by not attending the Iustices in Eyre; but a Reversion cannot be lost by the Forfeiture of the Tenant for Life; if the Bayliff make an ill Execution of a Writ or suffer the Party to escape, the Lord shall answer; so if the Marshal of England appoint a Marshal there may be a Forfeiture of his Office, because 'tis but still the same Office; and therefore the Case in Cro. Eliz. 386. where 'tis said, If an Office be granted for Life, the Forfeiture of Tenant for Life shall be the Forfeiture of the whole Office, is mistaken; for in Moor pl. 987. 'tis held other­wise; and upon the true difference between a Deputy and a [Page 126] Granteé for Life; for in the first Case there may be a Forfeiture of the Superior, because 'tis still but the same Office; but in the other Case the Superior shall not forfeit for any Misdemea­nour of the Grantée for Life, because he hath the Freehold of the whole Office, and the other nothing but the Reversion, and there­fore if the Defendant be liable in this Case 'tis in respect,

1. That he hath granted the Estate.

2. That he hath the Reversion or Residue after the Life of the Grantee.

He cannot be charged in respect that he hath granted the Estate, because the Freehold is gone and in another; neither can he be charged in respect of the Reversion, because then not only his Heir but the Assigneé of the Reversion will be chargeable also, which cannot be.

As to the second Point of this Argument; if the Defendant is not chargeable by this Statute he is not to be charged at the Common Law.

Sid. 306, 397. 2. Because the Common Law doth not give an Action of Debt for an Escape, but an Action on the Case only; neither doth it give any Remedy but against the Party offending.

As to the Case that hath beén objected upon the Statute de Scac­cario, where the several Officers in the Exchequer shall answer in their degrées of Superiority, that cannot be applicable to this Case, because there can be no proportion betweén things which concern the Kings Revenue and Prerogative, and those of a com­mon person.

The Cases of the Coroner and the Sheriff, and of the recom­mending of a Receiver to the King are not like this Case, because the King cannot inform himself of the sufficiency of the Party recommended, and therefore 'tis but reasonable that he who re­commends should be liable; and can it be said that when the Defendant was about to sell this Office to one Norwood (which he hath since done) that if a Stranger had recommended Nor­wood and he had proved insufficient, that the Stranger would have béen liable?

As for the Civil Law and the Authorities therein cited to go­vern this Case, he did not answer them because they judge after their Law, and the Common Lawyers after another way.

This Office hath béen granted time out of mind for Life, and no doubt but many Escapes have been made, but never was any Action brought against him in the Reversion before now.

The Court of Common Pleas always examine the sufficiency of the Grantee for Life, which shews that in all succession of Ages the Opinions of Learned Men were, that no Escape could be [Page 127] brought against the Reversioner; for if so, what need is there of such Examination? This was urged to shew that the Pro­ceedings of that Court did not alter, but interpret the Law.

But admitting the Case of the Duke of Norkfolk to be Law, yet it concerns not this, because the Sub Marshal there was taken as a Deputy, but there is no such Officer as a Sub-War­den, for Duckenfield had it for Life.

And then a Deputy being a person removable at pleasure, will not be so considered in Law, as one who hath a more fixed Estate; for having nothing to lose, it cannot be intended that he will be so careful in the execution of his Office, as the other; and therefore 'tis reasonable in such Case, that the Superiour should answer: But he who hath a Freehold for Life, hath an Estate of some value in the Law, which he cannot be supposed easily to forfeit, and therefore 'tis reasonable that he alone should be lyable for his own Miscarriages; for if the Defendant should be charged, by the same reason the Grantee of the Rever­sion may be charged, who is altogether an innocent person, and so may be liable to a vast Sum for the Fault of another; for which Reasons he prayed Iudgment for the Defendant.

The Court delivered no Opinion this Term,Judgment. but took time to advise; and afterwards in Easter Term following Rainsford Chief Iustice delivered the Opinions of Twisden, Wild and Jones Iustices, who said they were all agreéing in the main Point, but thought the Verdict imperfect, and not to warrant the Plaintiffs Case; for he declared that at the time when the Grant was made to Duckenfield, when the Commitment was, and when the Escape was suffered, and ever since, that Duckenfield was insufficient and not able to answer the Plaintiff; but the Iury in the Special Verdict do not find the insufficiency at that time when this Action was brought.

But as to the main Question they were of Opinion that the Defendant was Superior, and that he is chargeable for this in­sufficiency of Duckenfield; but if he had béen sufficient when the Plaintiff brought this Action, it might have been otherwise; but his Inability being fully averred in the Declaration; and the Defendant denying it, and the Iury having found nothing against it, but there being strong Suspicions of the truth of the Fact, the Court would not make an intendment to the contrary.

The Iury have found expresly that Duckenfield was insufficient at the time of the Escape, which was within six Weeks of the time when the Action was commenced; so that having once found him disabled, unless it appear that he was of Ability after­wards, [Page 128] the Court will not intend him so; but rather that he was insufficient at the time of the Action brought; for there being strong surmises of it, and there being no ground within the Record to intend him sufficient, a Fact may be collected that is not found in the Verdict, Fulwoods Case, 4 Co.

The King versus Moor.

Difference between a prohibitory Clause, and a Clause which gives a Penalty in a Statute.AN Information was brought upon the Statute of the 4th & 5th of Philip and Mary, cap. 8. which Enacts, That if any Person, &c. above the Age of 14 shall after the first day of April (next after the making the Statute) unlawfully take a Maid or Woman unmarried, being within the Age of 16 years, &c. the Party shall suffer two years Imprisonment, or pay such Fine as shall be assessed in the Star Chamber, and that the Defen­dant existens supra aetatem quatuordecim annorum did take a young Maid away unmarried, and kept her three days contra formam Statuti; upon which he was found Guilty, and now moved in Arrest of Iudgment.

1. It was said for the Defendant, that this Court could not Fine him upon this Statute, because when the Informer enti­tles himself by a Statute, he must take the remedy therein pre­scribed; and so 'tis not like an Information at the Common Law, for in such case this Court might Fine the Plaintiff.

2. It is not averred, that the party offending was above the age of 14 years at the time of taking, but only that he being above the age of 14 such a day did take.

Where there are not Nega­tive Words, the Court of Kings Bench is not restrained. Mod. Rep. 34. Sid. 359.Sir William Jones contra. If the first Objection hath any weight in it, 'tis to bring the Party to an Imprisonment for the space of two years, which is a punishment directed by that Statute, but the Fine is limited to the Star Chamber, and those Offences which were punishable there, are likewise to be puni­shed here, because there are no Negative words in this Statute to abridge the authority of this Court, which is never restrain­ed, but when the Statute directs before whom the Offence shall be Tried, and not elsewhere. It was the Opinion of my Lord Chief Iustice Hales, That where there is a prohibitory Clause in a Statute, and another Clause which gives a Penalty, if the Party will go upon the prohibitory Clause, Postea. he is not confined to the manner expressed in the Statute, but if he will go upon the Penalty, he must then pursue what the Statute directs.

The first part of this Statute is but a Declaration of the Common Law; the second Clause is introductive of a new Law as to the Court of Star Chamber, but is not a restriction as to this Court, which might have punished the Defendant if there had been no such Law. The first Clause is prohibitory, viz. That it shall not be lawful for any person to take away a Maid un­married, and upon this Clause this Information is brought: The second Clause is distinct, and directs the punishment, viz. Upon Conviction to suffer Imprisonment for two years. Now by taking away the Court of Star Chamber, this prohibitory Clause is not repealed, upon which a Man may be Indicted without de­manding the Penalty; and the Statute having directed that the Offence shall be heard and determined before the Kings Coun­cil in the Star Chamber, or before the Iudge of Assise, and no Negative words to restrain this Court; therefore the Chief Iu­stice, who is the Iudge ofCro. Car. 463. Assise in the County of Middlesex, may hear and determine this Offence, and by consequence Fine the Party if he be found Guilty.

As to the second Objection, That it is not averred, that the Party offending was above the age of 14 years at the time of the taking, it had been better if it had been said tunc existen' supra aeta­tem quatuordecim annorum; but notwithstanding 'tis well enough; for 'tis said, that being above the age of 14 years, such a day he did take, &c. so that it cannot be otherwise but that he was of such an age at the time when the Maid was taken; and the Iury found him Guilty contra formam Statuti; which may likewise be an Answer to the first Objection; for he being found Guilty contra formam Statuti, if there be any other Statute which prohibits and punishes a Riot, this Information is as well grounded upon such, as up­on this Statute of Philip and Mary, for 'tis expresly said, that the Defendant and others did unlawfully assemble themselves together, and riotose & routose made an Assault upon her, so that it shall be intended to be grounded upon such a Law, as shall be best for punishing the Offence.

The Court were of Opinion,Curia. That notwithstanding these Ex­ceptions, the Information was good, and was not like the Case of an Indictment upon the Statute for a forceable Entry, That such a day by force and arms the Defendant did Enter into such a House,2 Cro. 14610 639. existen' liberum tenementum of J. N. and if he doth not say tunc existen' the Indictment is naught, because the Iury may enquire of a thing before it is done; but here the existen being added to the person, carries the sense to the time of the Offence committed.

The Statute of 1 R. 3. saith, that all Grants made by Cestui que use being of full Age, shall be good against him and his Heirs, and 'tis adjudged 16 H. 7. that he need not shew when and where, but generally existen' of full Age, and upon the Evi­dence it must be so proved.

Where a thing relates to the Condition of a Man, it shall be tryed in the County where the Action is laid, and 'tis not necessary to say in what County he is a Knight or an Esquire; any Citizen and Freeman may devise his Land in Mortmain, by the Custom of London; 'tis enough to say in Pleading ex­isten' a Citizen and Freeman without setting forth when and where.

If a Man be Indicted for not coming to Church, 'tis enough to say existen' of the Age of 16 years, he did not come to Church.

This is an Offence punishable at Common Law, 'tis malum in se. But admitting 'twas an Offence created by the Statute, there being no Negative words to prohibit, this Court hath a Iurisdiction to punish this Offence, if the Star Chamber had not been taken away; for the Party had his election to proceed in this Court upon the prohibitory Clause, and the Iustices of Assise must be intended the Iustices of Oyer and Terminer, Moor 564. Whereupon the Defendant was Fined 500 l. and bound to his good Behaviour for a Year.

Brown versus Waite.

Entailed Lands for­feited for Treason. Jones 57. 1 Ventr. 299.UPon a Special Verdict in Ejectment, The Case was, viz. Sir John Danvers, the Father of the Lessor of the Plain­tiff, was in Anno Domini 1646. Tenant in Tail of the Lands now in Question; and was afterwards instrumental in bringing the late King Charles to death, and so was guilty of High Trea­son, and dyed.

Afterwards the Act of Pains and Penalties, made 13 Car. 2. cap. 15. Enacts, That all the Lands, Tenements and Heredita­ments, which Sir John Danvers had the 25th day of March, in the year 1646. or at any time since, shall be forfeited to the King.

And whether these entailed Lands shall be forfeited to the King by force of this Act, was the Question.

Wallop, who argued for the Plaintiff said, that the entailed Lands were not forfeited, his Reasons were,

[Page 131] 1. These Lands entailed are not expressly named in that Act.

2. Tenant in Tail hath but an Estate for Life in his Lands, and therefore by these words (All his Lands) those which are en­tailed cannot be intended; for if he grant totum statum suum, only an Estate for Life passeth.

3. These Lands are not forfeited by the Statute of 26 H. 8. cap. 13. which gives the forfeiture of entailed Lands, in case of Treason; hecause Sir John Danvers was not convicted of it by Process, Presentment, Confession, Verdict or Outlawry, which that Statute doth require, for he dyed before any such Con­viction.

Sir Francis Winnington the Kings Solicitor, argued contra, that entailed Lands are forfeited by the Act of Pains and Penal­ties; and in speaking to this matter, he considered.

1. The words of that Act.

2. How Estates Tail were created, and how forfeitable for Treason.

1. This Act recites the Act of general Pardon, which did not intend to discharge the Lands of Sir John Danvers and others from a Forfeiture.

2. It recites that he was Guilty of High Treason.

3. Then comes the enacting Clause, Viz. That all the Lands, Tenements, Rights, Interests, Offices, Annuities, and all other Hereditaments, Leases, Chattels, and other things of what nature soever, of him the said Sir John Danvers and others, which they had on the 25th of March 1646. or at any time since, shall be forfeited to the King his Heirs and Successors.

2. As to the creation of Intails, there were no such Estates at the Common Law; they were all Fee-simple Conditional, and post prolem suscitatam the Condition was performed for three pur­poses.

Viz. To Alien, Co. Lit. 19. a. 2 Inst. 334.

To Forfeit.

Or to charge with a Rent; and thus the Law continued till 13 E. 1. and there having been frequent Warrs between King John and the Barons, the great Men then obtained the Statute De donis to preserve their Estates, lest the like occasion should happen again; in which 'tis only mentioned, that the Tenant in Tail should not have power to alien; but it was well known, that if he could not alien, he could not forfeit, for before that Statute, as he might alien post prolem suscitatam, so the Iudges always construed that he might forfeit, 5 Edw. 3.14. for forfeiture [Page 132] and alienation did always go hand in hand, 1 Co. 175. Mildmay's Case.

And from the making of that Statute, it always continued a setled and received Opinion, That Tenant in Tail could not alien, until by the 12th of Ed. 4. a Recovery came in, by which the Estate Tail may be docked, and which is now become a Com­mon Assurance.

Then by the Statute of 4 H. 7. cap. 24. Tenant in Tail might bar his Issue by Fine and Proclamation, and all this while it was not thought that such Lands could be forfeited for Treason; which Opinion continued during all the Reign of H. 7. for though by his Marriage the Houses of York and Lancaster were uni­ted, yet the Great Men in those days thought there might be some doubt about the Succession, after the death of H. 7. if he should dye without Issue, and thereby those differences might be again revived, and therefore no endeavours were used to make any alteration in the Law, till after the death of H. 7. And after his Son H. 8. had Issue, those doubts were removed, and being never likely to arise again, then the Act of 26 H. 8. was made, which gives a Forfeiture of entailed Lands in cases of Treason.

The inference from this will be, that all the Cases put be­fore the 26th year of H. 8. and so before entailed Lands were made forfeitable for Treason; and where by the general Words of Lands, Tenements and Hereditaments, 'twas adjudged entailed Lands did not pass, do not concern this Case; but now since they are made forfeitable by that Statute, such general words are sufficient to serve the turn.

By the Statute of 16 R. 2. cap. 5. entailed Lands are not for­feited in a Praemunire but during the Life of Tenant in Tail; because they were not then to be forfeited for Treason,2 Inst. 334. 1 Inst. 3. Co. Lit. 130.

If then it appears that the Crime of which Sir John Dan­vers was guilty, was Treason; and if entailed Lands are for­feited for Treason, then when the Act saith, That he shall forfeit all his Lands; by those general Words his entailed Lands shall be forfeited: And though by the Common Law there can be no Attainder in this Case, the Party being dead; yet by Act of Parliament that may be done, and the words in this Act amount to an Attainder.

The intent of it was to forfeit Estates Tail, which may be collected from the general Words; for if a Fee-simple is forfeit­ed, though not named, why not an Estate Tail? especially since the word Hereditaments is very comprehensive, and may take in both those Estates, Spelman's Glossary 227. 2 Roll. Rep. 503.

In the very Act of 26 H. 8. cap. 13. Estates Tail are not named, for the Words are, Every Offender convict of Treason, &c. shall forfeit all such Lands, Tenements and Hereditaments which he shall have of any Estate of Inheritance, in use, posses­sion or by any Right, Title or Means, &c. and yet a Construction hath been made thereupon in favour of the Crown; so a Dig­nity of an Earldom intailed is forfeitable by this Statute by the Word Hereditament, 7 Co. 34.

Afterwards in Hillary Term Rainsford Chief Iustice delivered the Opinion of the Court,Judgment. That upon Construction of the Act of Pains and Penalties this Estate Tail was forfeited to the King.

He agreed the Series and progress of Estates Tail to have been as argued by the Solicitor; and that the Question now was whether by the Act of Pains, &c. Estates Tail can be forfeited unless there are express Words to take away the force of the Statute de donis conditionalibus; Preface to 3 Co. for by that Statute there was a settled perpetuity; Tenant in Tail could neither forfeit or alien his Estate, no not in Case of Treason, and Forfeiture is a kind of Alienation; but afterwards by the Resolution in Ed. 4. an Ali­enation by a Common Recovery was construed to be out of the said Statute, and by the Statute of Fines 4 H. 7. which is ex­pounded by a subsequent Statute of 32 H. 8. cap. 36. Tenant in Tail notwithstanding his former restraint had power to alien the Estate Tail and barr his Issue; but all this while his Estate was not to be forfeited for Treason, till the Statute of 33 H. 8. cap. 20. which gives Uses, Rights, Entries, Conditions, as well as Possessions, Reversions, Remainders, and all other things of a person attainted of Treason by the Common or Statute Law of the Realm to the King, as if such Attainder had been by Act of Parliament.

Then by the Statute of 5 & 6 Ed. cap. 11. 'tis Enacted, That an Offender being guilty of High Treason and lawfully convict, shall forfeit to the King all such Lands, Tenements and Heredita­ments which he shall have of any Estate of Inheritance in his own Right in Use or Possession; by which Statutes, that de donis conditionalibus was taken off in Cases of Treason, as it had been before by the resolution in 12 E. 4. and by the Statute of Fines, as to the Alienation of an Estate Tail by Fine and Re­covery.

If therefore this Act of Pains, &c. will admit of such a con­struction as to make Estates Tail forfeit; here is a Crime great [Page 134] enough to deserve such a great punishment; a Crime for which the Parliament hath ordered an Anniversary to be kept for ever with Fasting and Humiliation to implore that the Guilt of that innocent Blood then shed may not be required of our Posterity; this they esteemed as another kind of Original Sin, which unless thus expiated might extend not only ad Natos sed qui nascantur ab illis.

And that this Act will admit of such a Construction these Reasons were given.

1. From the general comprehensive Words mentioning those things which are to be forfeited, viz. Messuages, Lands, Tene­ments, Reversions and Interests, which last Word signifies the Estate in the Land as well as the Land it self, or otherwise the Word must be construed to have no effect.

2. Estates Tail are not now protected by the Clause in the Statute de donis Inst. 334. Non habet potestatem alienandi, but are sub­ject to the forfeiture by the Act of H. 8. which though it extends to Attainders only, yet 'tis a good Rule for the Iudges to make a Construction of an Act of Parliament by, especially in such a Case as this, wherein 'tis plain that the Law did look upon these Offen­ders, if not attainted, yet in pari gradu with such persons, and therefore may be a good Warrant to make the like Construction as in Cases of Attainder.

3. Because the Offenders are dead; for had they béen living there might have been better reason to have construed this Act not to extend to Estates Tail, because then something might be forfeited, viz. an Estate for Life; and therefore the Act would sig­nifie very little if such Construction could not be made of it to reach Estates Tail of such persons who were dead at the time of the making the Law, especially since 'tis well known that when Men engage in such Crimes they give what Protection they can to their Estates, and place them as far as they can out of danger.

4. It appears by the Act that the Law-makers did not intend that the Children of such Offenders should have any benefit of their Estates, because in the Proviso there is a saving of all Estates of Purchasers for Mony bona fide paid, and therein also a parti­cular Exception of the Wife and Children and Heirs of the Of­fenders; and if the Act would not protect the Estate of the Chil­dren though they should be Purchasers for a valuable considera­tion, it will never protect their Estate under a voluntary Convey­ance made by the Ancestor, especially in this Case, because the Entail carries a suspicion with it that it was designed with a prospect to commit this Crime; for Sir John Danvers was Te­nant [Page 135] in Tail before; and in the year 1647. levies a Fine to barr that Entail, and then limits a new Estate Tail to himself, in which there is a Provision to make Leases for any number of years up­on what Lives soever, in Possession or Reversion, with Rent or without it, and this was but the year before the Crime com­mitted.

5. The Proviso in the Act for saving the Estates of Pur­chasers doth protect all Conveyances and Assurances, &c. of Land not being the Lands of the late King, Queen, Prince, &c. and not being Land sold for any pretended Delinquency since the first of June, 1641. and all Statutes and Judgments suffered by the Offenders from being impeached; from which it appears that the Parliament lookt upon entailed Lands as forfeited; for if E­states made to others upon a valuable consideration had need of a Proviso to save them from Forfeiture, à fortiori, the Estates out of which those are derived have need of such a saving, and therefore must be forfeit by the Act; for which Reasons these Lands are forfeited.

As to the great Objection which hath been made and insisted on the other side, and which is Trudgeons Case, 22 Eliz. 1 Inst. 130. Where Tenant in Tail was attainted in a Praemunire, and it was adjudged that he should forfeit his Land but during his Life; for though the Statue of 16 R. 2. cap. cap. 5. Enacts, That in such Case their Lands, Tenements, Goods and Chattels shall be forfeited to the King; yet that must be understood of such an E­state as he may lawfully forfeit, and that is during his own life, and therefore being general Words they do not take away the force of the Statute de donis, so that his Lands in Fee-simple, for life, &c. shall be forfeited, but the Land entailed shall not, during his life.

But the Answer is plain: For in the Reign of R. 2. when the Statute of Praemunire was made, Estates Tail were under a Perpetuity by the said Statute de donis, which Statute is now much weakened in the Point of Alienation; and the Law is quite altered since that time; and 'tis apparent by multitude of Pre­sidents that such strict Constructions have not been made since that time to preserve Estates Tail from Forfeitures without spe­cial and particular Words;4 Co. 164. and therefore in the Case of Adams and Lambert, which is a Case in Point, the Iudges there con­strued Estates Tail to be forfeit for want of special Words in the Statute of 1 E. 6. cap. 14. to save it; and that was only a Law made for suppressing of superstitious Vses upon a politick conside­ration; but this is a much greater Offence intended to be pu­nished by this Act, in which there are demonstrations both from [Page 136] the Words and intent of the Law-makers to make this Estate forfeited to the Crown than in that Case so much relied on: And Iudgment was given accordingly.

Wyld died before Iudgment was given; but Iustice Twisden said he was of that Opinion, and Jones Iustice concurred.

Basset versus Salter.

After an Escape the Plaintiff may have a Ca. Sa. or Sci. Fa. a­gainst the Sheriff.IN an Action for an Escape; the Question was whether the Plaintiff may take out a Ca. Sa. or have a Fi. Fa. against the Defendant after the Sheriff or Gaoler voluntarily suffer him to escape; but the Court would not suffer it to be argued, because it had been lately settled that it was at the Election of the Plain­tiff to do either; and upon a Writ of Error brought in the Ex­chequer-Chamber the Iudges there were of the same Opinion: But in the Lord Chief Iustice Vaughan's time the Court of Com­mon Pleas were divided, but 'tis since settled, 1 Roll. Abridg. 901, 902.

If there be an Escape by the Plaintiffs consent, though he did not intend it, the Law is hard that the Debt should be thereby discharged; as where one was in execution in the Kings Bench, and some Proposals were made to the Plaintiff in behalf of the Prisoner, who seeing there was some likelyhood of an Accomodation consented to a Meeting in London, and de­sired the Prisoner might be there, who came accordingly, and this was held to be an Escape with theIf it had been by the consent of the Sheriff, he could never take him again, but the Plaintiff might. Sid. 330. consent of the Plaintiff, and he could never after be in Execution at his Suit for the same Matter.

Peck versus Hill. In Communi Banco.

Bond good given in discharge of another Mod. Rep. 221.DEBT upon a Bond brought against the Defendant as Administrator, who pleads that he gave another Bond in his own Name in discharge of the first Bond; and upon Issue joined it was found for the Defendant; and it was moved that Iudgment might not be entred hereupon, because it was a bad Plea.

But North Chief Iustice, and Wyndham and Scroggs Iustices, were of Opinion that it was a good Plea, because there was other Security given than what the Plaintiff had before; for upon the first Bond he was only lyable de bonis Intestatoris, but now he might be charged in his own Right,Co. Lit. 122. b. which may be well said to be in full satisfaction of the first Obligation; for where the Con­dition is for payment of Mony to the Party himself, there if he accept any collateral thing in satisfaction, 'tis good.

If a Security be given by a Stranger, it may discharge a for­mer Bond, and this in effect is given by such: And 'tis not like the Case in Hobert, where a Bond was given by the same Party upon that very day a former Bond was payable, and adjudged not a good discharge; for the Obligee was in no better condition than he was before.

Iustice Atkins doubted, but inclined that one Bond cannot be discharged by giving another, though the Discharge be applied to the Condition of the Bond; and for this he cited,Cro. Car. 85. Cro. Eliz. 716, 727. which was a Case adjudged so in Point; and there­fore this Plea upon Demurrer should have been over-ruled; yet since Issue was taken upon it, and a Verdict for the Defendant the Plea is helped by the Statute of Jeofails, 32 H. 8. here being a direct Affirmative and Negative.

But as to that, the Chief Iustice and Scroggs Iustice replied, that an immaterial Issue no ways arising from the Matter is not helped; as an Action of Debt upon a Bond laid to be made in London, and the Defendant saith that it was made in Middlesex, and this is tried, 'tis not aided by the Statute but there must be a Repleader.

But because it was sworn that the Obligor (who was the in­testate) was alive four years after the time that the second Bond was given, and for that reason it could not be given upon the accompt of the Defendants being liable as Administrator, but must be intended a Bond to secure a Debt of his own, therefore a new Trial was granted

Cook and others versus Herle.

Covenant will lie in the perso­nalty tho' the Grant be executed by the Sta­tute of U­ses, which makes a Distress the proper re­medy. Mod. Rep. 223.IN Covenant; the Case was this: Charles Cook made a Iointure to Mary his Wife for life, and died without Issue; the Land descended to Thomas Cook his Brother and Heir, who grants an Annuity or Rent Charge of 200 l. per annum to the Plaintiffs in Trust for Mary, and this was to be in discharge of the said Iointure, Habendum to them, their Heirs, Executors, Ad­ministrators and Assigns in Trust for the said Mary for Life, with a Clause of Distress and a Covenant to pay the 200 l. per annum to the said Trustees for the use of the said Mary; the Breach as­signed was that the Defendant had not paid the Rent to them for the Use of Mary.

The Defendant demurred specially for that it appears by the Plaintiffs own shewing that here is a Grant of a Rent-Charge for life, which is executed by the Statute of Vses, and therefore there ought to have been a Distress for Non-payment, which is the proper remedy given by the Statute, and this Action will not lie in the personalty.

2. 'Tis said the Defendant did not pay it to the Plaintiffs for the use of Mary, which is a Negative pregnant and implies that it was paid to them.

3. 'Tis not averred that the Mony was not paid to Mary, and if 'tis paid to her, then the Breach is not well assigned.

Ex parte Quer.But Serjeant Baldwin for the Plaintiff replyed, that it was not a Question in this Case whether this Rent Charge was exe­cuted by the Statute or not, for quacun (que) via data an Action of Covenant will lie; and that the Breach was assigned according to the Words of the Covenant, and so prima facie 'tis well enough; for if the Defendant did pay the Mony to the Plaintiffs he may plead it, and so he may likewise if he paid it to Mary.

Curia.The Court were all of Opinion that this Rent-Charge was executed by the Statute of Vses by the express Words thereof, which executes such Rents granted for Life upon Trust, as this Case is, and transfers all Rights and Remedies incident thereunto together with the possession to Cestuy que use; so that though the power of distraining be limited to the Trustées by this Deéd, yet by the Statute which transfers that power to Mary, she may distrain also; but this Covenant being collateral cannot be trans­ferred.

The Clause of Distress by the express Words of the Act is given to the Cestuy que use; but here is a double Remedy, by Distress or Action; for if the Lessée assign his Interest, and the Rent is accepted of the Assignee, yet a Covenant lies against the Lessée for Non-payment upon the express Covenant toHayes and Bickerstaff. Hollis and Carr, Antea. pay; so if a Rent be granted to S. and a Covenant to pay it to N. for his use, 'tis a good Covenant.

And it was agreed, that the assignment of a Breach according to the Words of the Covenant is good enough, and that if any thing be done which amounts to a performance, the other side must plead it; as in this Case the Defendant might have pleaded that the Mony was paid to Mary, which is a performance in substance, but it shall not be intended without pleading of it; Whereupon Iudgment was given for the Plaintiff.

Read versus Dawson.

DEBT upon Bond against the Defendant as Executor:Repleader after an im­material Is­sue. Issue was joyned whether the Defendant had Assets or not on the thirtieth day of November, which was the day on which he had the first notice of the Plaintiffs original Writ, and it was found for the Defendant, that then he had not Assets.

It was moved for a Repleader, (because it was said) this was an immaterial Issue, for though he had not Assets then yet if he had any afterwards he is liable to the Plaintiffs Action.

But Barrel Serjeant moved for Iudgment upon this Ver­dict, by reason of the Statute of 32 H. 8. which helps in Cases of Mispleading or insufficient Pleading. 'Tis true, there are many Cases which after Verdict are not aided by this Statute, as if there are two Affirmatives, which cannot make an Issue, or when after a Traverse Issue is joyned with an hoc petit quod inquiratur per patriam; this is no Issue, 2 Anders. 6, & 7.Yelv. 210. Hob. 126. So if there be no Plea at all, as if an Action is brought against Baron and Feme, and she pleads only, 2 Cro. 288. So if the Party puts himself super patriam, where it should be tried by Re­cord, or if the Plea be nothing to the purpose, or lie not in the Mouth of the Parties, such immaterial Issues as these can­not be good.

The difference in Moor 867. is, if the Plea on which the Issue is joyned, hath no colourable pretence in it to barr the Plaintiff, or if it be against an express Rule in the Law, there the Issue is immaterial, and so as if there was no Issue; and therefore 'tis [Page 140] not aided by the Statute; but if it hath the countenance of a legal Plea, though it want necessary matter to make it sufficient, there shall be no Repleader, because 'tis helped after Verdict.

Here the Parties only doubt whether there were Assets at the time of the notice, and 'tis found there were none, and so Iudg­ment was to be given accordingly; and of that Opinion was the whole Court.

But Iustice Atkins was clear of Opinion, that if the Parties join in an immaterial Issue there shall be no Repleader, because 'tis helped after Verdict by these Words in the Statute, viz. (any Issue;) 'Tis not said an Issue joined upon a material Point; and the intent of the Statute was to prevent Repleaders; and that if any other Construction should be made of that Act he was of Opinion that the Iudges sate there not to expound but to make a Law; for by such an Interpretation much of the benefit intended by the Act to the Party, who had a Verdict, would be restrained.

Curia.The other Iustices were all of Opinion that since the making of this Statute it had been always allowed, and taken as a dif­ference, that when the Issue was perfectly material there should be no Repleader; but that it was otherwise where the Issue was not material.

And Iustice Scroggs asked merrily, If Debt be brought upon a Bond and the Defendant pleads Robin Hood dwelt in a Wood, and the Plaintiff joyns Issue that he did not, this is an immate­rial Issue, and shall there not be a Repleader in such Case after Verdict? Ad quod non fuit responsum.

Beaumont versus ........

Wager of Law.THE Plaintiff brings an Action of Debt upon a Iudgment obtained against the Defendant in a Court Baron, having declared there in an Action on the Case upon an Assumpsit, and recovered.

The Defendant came to wage his Law, and was ready to swear that he owed the Plaintiff nothing;Sid. 366. but the Court held that he was not well advised, for by the Recovery in the inferior Court it be­came now a Debt, and was owing; and being asked whether he had paid the Mony; he answered that he owed nothing: Where­upon the Court concluded that he had not paid it, and therefore they would not admit him to wage his Law without bringing suffi­cient [Page 141] Compurgators to swear that they believed he swore Truth; but such not appearing, the Defendant defecit de Lege, and Iudg­ment had been given against him, but he offered to bring the Mony recovered and the Costs into the Court, and to go to a new Tryal, it being a very hard Case upon him at the former Trial, where the Demand was of a Quit-Rent of 18 d. per annum; the Defendant promised, that if the Plaintiff would shew his Title and satisfie him that he had a Right to demand it, he would pay him the Rent; and at the Tryal express Oath was made of a Promise to pay, upon which the Verdict was obtained; whereas it was then urged that the Freehold would come in question upon that Promise, and so the inferior Court could have no Iurisdiction.

And afterwards the Chief Iustice said, that it hath béen ad­judged in the Kings Bench that an inferior Court cannot hold Plea on a quantum meruit for Work done out of the Iurisdiction though the Promise be made within; and that he knew where a Person of Quality intending a Marriage with a Lady, presented her with a Iewel, and the Marriage not taking effect, he brought an Action of Detinue against her, and she taking it to be a Gift offered to wage her Law; but the Court was of Opinion that the property was not changed by this Gift, being to a specifical in­tent, and therefore would not admit her to do it. Quod nota.

Styleman versus Patrick.

AN Action on the Case was brought by the Plaintiff against the Defendant, for eating of his Grass with his Sheep,Costs al­lowed. so that he could not in tam amplo modo enjoy his Common, there was a Verdict for the Plaintiff, and it was now moved, that he should have no more Costs than Damages, because this was a Trespass in its own nature, and the Iudge of Assise had not certified that the Title of any Land was in question.

Bur the Court were all of Opinion,Curia. that this Case was not within the Statute.

For it was not a frivolous Action, because a little damage done to one Commoner and so to twenty may in the whole make it a great Wrong; if the Cause were frivolous the Iudge of Assize may mark it to be such by vertue of the Statute of 43 Eliz. cap. 6. and then there shall be no more Costs than Da­mages; and though in this Case the Plaintiff hath in his De­claration set out a Title to his Common, yet the Title of the [Page 142] Land cannot possibly come in question, and therefore not to be certified as in Cases of Trespas; neither is there any need of a Certificate if it appears by the Pleading that the Title of the Land is in question.

The Court being against the Defendant as to the Costs; his Council then moved in Arrest of Iudgment, because the Plaintiff sets forth his Right to the Common only by way of Recital with a cumque etiam, Postea. &c. that he had a Right to Common in such a place, sed non allocatur; for 'tis affirmative enough, and after­wards he is charged with doing the Plaintiff damage; and so the Case is not like to an Action of Trespas quare cum he did a Trespass, for there the sense is imperfect.

DE Term. Sancti Hill. Anno 28 & 29 Car. II. in Communi Banco.

James versus Johnson.

IN Trespass,Que Estate, where 'tis pleadable. Mod Rep. 231. the Defendant justified by a Prescription to have Toll, and Issue being joyned thereupon, the Iury found a special Verdict, in which the Case upon the Plead­ings was, viz. Before the dissolution of Priories, the Man­nor now in the possession of the Defendant, was parcel of the Priory of B. which came to the Crown by the said dissolution; and the King made a Grant thereof to Sir Jervas Clifton, in Fee, together with the said Toll adeo plene as the Prior had it; and the Defendant having brought down a Title by seve­ral mesne Assignments, claims by vertue of a Lease from Sir Jervas, for seven years then in being, alledging that the said Sir Jervas and all those whose Estate he had might take Toll; and whether this Pleading by a Que Estate to have Right of Toll was good in Law, the Iury doubted.

Baldwin Serjeant for the Plaintiff,Ex parte Quer. argued that the Iustifica­tion was not good, because there are two sorts of Toll, viz. Toll through and Toll traverse, and is in the Kings High Way, and the other in a Mans own Soil, and it doth not appear for which the Defendant hath justified. If it be for the first, then he ought to shew that he did make a Causeway, or some other thing that might be an advantage to the Passen­gers, to entitle himself to a Prescription; but if it be for the other, then he must also shew it was for passing upon his Soil, which implies a Consideration, 22 Assize, Kelw. 148. Pl. Com. 236. Lord Berkley's Case. 1 Cro. 710. Smith versus Sheppard; by which Cases it appears that the justification ought to be certain.

Then as to the point in Question, he said, that Toll cannot be appurtenant to a Mannor, and so the Pleading by a Que estate is not good; but if that should be admitted, yet the Man­nor being vested in the Crown by the dissolution, the Toll then became in gross, and could never after be united to the Mannor, or appurtenant thereunto.

But it was argued for the Defendant by Maynard Serjeant, and the whole Court were clear of Opinion, that the Issue was upon a particular point, and the Title was admitted, and that nothing remained in question but the Point in pleading. And as to what had been objected, That Toll cannot belong to a Mannor, 'tis quite otherwise; for an Advowson, a Rent, a Toll, or any Profit apprender may be appurtenant to it. Tis true a Man cannot prescribe by a Que Estate of a Rent, Advowson, Toll, &c. but he may of a Mannor, to which these are appendant; 'tis likewise true, that if the Defendant had said this was Toll for passing the Highway, he must shew some cause to entitle him­self to the taking of it, as by doing something of publick ad­vantage.

But this general way of pleading is the most usual, and so are the Presidents, and it ought to come on the other side, and to be alledged, that the Defendant prescribed for Toll in the High-way; and in this Case, though the Mannor came to the Crown, the Toll remained appurtenant still, and so it continu­ed when it was granted out. The difference is between a thing which was originally a Flower of the Crown, and other things which are not, as Catalla Felonum, &c. if such come again to the King, they are merged in the Crown; but 'tis otherwise in cases of a Leet, Park, Warren, Toll, &c. which were first crea­ted by the King, 9 Co. Abbot de Strata Marcella's Case. So that this Toll is not become in gross by the dissolution, where­upon Iudgment was given for the Defendant.

Sir William Turner's Case.

Amend­ment not after issue joyned.DEbt qui tam &c. for 100 l. against Sir William Turner, being a Iustice of Peace in London, for denying his Warrant to suppress a seditious Conventicle of one Mr. Tur­ner in New-street. This Cause was to be tried by Nisi prius this Term, before the Chief Iustice. And now the Plaintiff mo­ved to amend one Word in the Declaration, wherein he was mistaken, for he had laid the Meeting to be at Turner's Man­sion [Page 145] House, and upon Enquiry he understood the place of Meeting was not at his Mansion House, but at a little di­stance from it, and so prayed the word Mansion might be struck out.

But the Chief Iustice said, that after Issue joyned,Curia. and the Cause set down to be tried, and this being a penal Statute, no President could be shewn of an Amendment in such case, and therefore would not make this the first, and so Leave was given to the Plaintiff to discontinue upon payment of Costs.

Brown versus Johnson.

IN Accompt: The Plaintiff declares against the Defendant,Time where 'tis made par­cel of the issue not good. for that upon the first of March 22 Car. 2. & abinde to the first of May 27 Car. 2. he was his Bayliff, and Receiver of 80 Piggs of Lead.

The Defendant pleads, that from the said first day of March 22 Car. 2. to the first day of May 27 Car. 2. he was not the Plaintiffs Bayliff or Receiver of the said 80 Piggs of Lead, & hoc paratus est verificare. To this the Plaintiff demurred, and assigned specially for cause, that the times from the first of March to the first of May, are made parcel of the Issue, which ought not to be, because the Plaintiff in his Declaration must alledge a time for Form sake, but the Defendant ought not to tye him up to such time alledged, for he might have said he was not Bay­liff modo & forma.

And for this the Case of Lane and Alexander was cited, where the Defendant by Ejectment makes a Title by Copy of Court Roll, granted to him 44 Eliz. and the Plaintiff replies his Title by the like Grant, 1 Junii 43 Eliz. The Defendant maintains his Barr, and traverseth that the Queen 1 Junii 43 year of her Reign granted the said Land by Copy; and upon Demurrer it was adjudged, that the traversing of the day is matter of sub­stance, which being made part of the Issue, is naught.

But on the other side it was objected, that time is material, and that in Actions of Accompt 'tis proper to make it parcel of the Issue; for a Man may be Bayliff for two, but not for three years, and a Release may be pleaded from such a time to such a time, Fitz. Accompt 30. Rast. Entry f. 8. 19 pl. 1. f. 20. pl. 6. f. 22. pl. 2.

[Page 146]1. Then Exceptions were taken to the Plea, first, for that the Plaintiff having charged the Defendant as Receiver of 80 Piggs of Lead; the Defendant pleads, and that he was not Re­ceiver thereof, but doth not say of any part thereof; for which reason the Court held the Plea ill, because he might retain 79, and yet not 80 Piggs, but to plead generally ne unques Recep­tor is well enough; though it was urged that if it had been found against him upon such an Issue that he had received any parcel of the Lead, he should have accompted, 24 H. 4. 21. 2 Roll. 3. 14. 32 H. 6. 33. Fitz. Accompt 16. Cro. Eliz. 850. Fitz. Accompt 14. Rast. Entry 18, 19, 20.

2. The Defendant concludes & hoc paratus est verificare, where­as it should be & de hoc ponit se super patriam; but the Court doubted of this, because it was not specially assigned.

Postea.3. The Plaintiff charged the Defendant as his Bayliff upon the first of March, and the Defendant pleads that he was not his Bayliff from the first of March, so he excludes that day; and this the Court held to be incurable, and likewise that the time ought not to be made parcel of the Issue,2 Sand. 317, 318. and so Iudgment was given quod computer.

Abraham versus Cunningham.

Admini­strator sells a Term, af­terwards an Executor appears and renounces, yet the Sale was adjudg­ed void. Jones 72. 1 Vent. 303.IN a special Verdict in Ejectment, the Case upon the Plead­ings was, Viz. Sir David Cunningham being possessed of a Term for years, made his Will, and therein appointed his Son Sir David Cunningham to be his Executor, and dyed. Sir Da­vid the Executor, in the year 1663. made his Will also, and therein appointed David Cunningham his Son, and two others to be his Executors, and dyed; those two Executors dye, and B. a Stranger takes out Administration, cum Testamento annexo, and continues this Administration from the year 1665. to the year 1671. in which time he made an Assignment of this Term to the Lessor of the Plaintiff, for which he had received a thousand Pounds: And in the year 1671. the surviving Executor of Sir David the Executor, made Oath in the Archbishops Court, that he never heard of his Testators Will 'till then, nor ever saw it before, and that he had not medled with the Estate, nor renoun­ced the Executorship:6 Co. Pack­mans Case. Then a Citation goes to shew cause why the Administration should not be repealed, and Sentence was given that it should be revoked; upon which the Executor en­ters, and the Lessor of the Plaintiff entred upon him.

This Case was argued by Saunders for the Plaintiff,Ex parte Quer. and Levints for the Defendant. And first it was said in behalf of the Plaintiff, that the Authorities in the Books were strong on his side, that the first Administration was well granted; 'Tis true, if a Man make a Will, and Administration is granted, and that Will is afterwards proved, such Administration is void, as in Greysbrook and Foxes Case, Pl. Com.

But in this Case, after the death of Sir David Cunningham the Executor, his Testator is dead Intestate; for to make an Executor there must be first the naming of him; then there must be some concurring act of his own to declare his assent, that he will take onus executionis upon him, for no man can make another Executor against his will; so that if after the death of the first Executor, those other Executors appointed by him, had made such a Declaration, as this surviving Executor hath since done, their Testator had dyed Intestate, 7 E. 4. 12, 13.

The Executor is made by the Testator, and the Ordinary is empowered by the Statute to make the Administrator where the person dies Intestate; so that 'tis plain there cannot be an Exe­cutor and Administrator both together: If he who is made so taketh upon him long after the Will to be Executor, it shall make him such by relation from the time of the death of the Testator; but here is no Executor nor ever was: 'Tis true, that one was named, but as soon as he heard of the Will he renoun­ced; and therefore there being no Executor in this Case, no­thing now can hinder the Administration to be granted cum Testamento annexo.

If the Testator should dye indebted, or have Debts owing to him, and the Executor refuses Probate, and renounces his Ex­ecutorship, Administration must be granted, for Lex fingit ubi subsistit Aequitas, and the Executor having a possibility to be such, and by his refusal becoming no Executor, why should the bare naming of him to be an Executor, have relation to make such Administration void? since 'tis not the Name, but the doing of the Office which makes him Executor, Dyer 372.

If all these Executors had dyed after Administration thus com­mitted, it cannot be said that they ever were Executors.

There can be no inconvenience that this Administration should be good; for 'tis just that Creditors should have their Debts, and Purchasors should be secure in the things purchased.

If the Testator was indebted, an Action will lie against an Executor de son tort, for such Debt, which Executor is altogether as wrongfull as the Administrator, to whom Administraton is com­mitted, [Page 148] and the Will afterwards proved by the rightful Execu­tor; and if such Executor of his own wrong be possessed of a term for years, and a Creditor recovers against him, that Cre­cutor shall have the Term in satisfaction of his Debt; and by the same reason shall the Administrator here have a good title to this Term which he sold for the payment of a just Debt, and there is no authority for making such Administration void, unless it be where the Executor proves the Will, but never when he re­nounceth.

Ex parte Def.But on the other side it was said, that an Executor of an Executor hath all the Interest which the first Executor had; so that being an Executor, the Administration ganted by the Ordi­nary is void, and the renunciation afterwards shall never make it good; and this will appear by the different Interests which the Ordinary and the Executor have by Law.

1. The Ordinary originally had nothing to do with the Estate of the Intestate, forGodolph. 59. bona intestati capi solent in manus Regis. Afterwards two Statutes were made, which establish his pow­er; the first was Westm. 1. cap. 19. and the other was 31 E. 3. c. 11. Yet no power was thereby given him to dispose of the Goods to his own use, or to the use of any other; he had only a proper­ty secundum quid, and not an absolute and uncontroulable Right in the Estate.

2. But the Executor hath a Right and Interest given to him by Law, when a Will is made, and may5 Co. Mid­dleton's Case. release before probate; if he therefore hath an absolute Right, and the Ordinary hath only a qualified property, how can he grant the Administration of the Goods, which at the same time are lawfully vested in another? Suppose the Executor sells such Goods to one Man, and the Ad­ministrator to another,2 Anders. 150. Case. 83. the Sale of one of them must be void; and for the said Reasons, and by the constant course of the Law it must be the latter.

It hath been objected, that here was no Executor at all, on­ly one named; or if it be admitted that there was an Execu­tor, yet his refusal shall relate to the time of the Administra­tion committed, and make that good which might not be so before.

But as to that, he said that here was an Executor appointed by the Will, who had an Interest, and Administration being granted to another, 'tis void ab initio, and what is once void cannot be made good by any subsequent act,Mod. Rep. 214. 10 Co. 62. a.

Here was a want of power in him who did this Act; for the Or­dinary could not grant Administration where there is an Execu­tor, and therefore no relation shall be to make that good which was once void; but if it had béen only voidable it might have been otherwise.

A Relation may be to inable the Party to recover the Goods of the Intestate, and to punish Trespasses; as if a Man die posses­sed of Goods, and a Stranger convert them, and afterwards Admi­nistration is granted to S. this Administration shall2 Roll Abr. 399. relate to the time of the death of the Intestate, so that he may maintain Trover, before the Ordinary had committed it to him, but it will never aid the Acts of the Parties to avoid them by Relation; as if a Man makes a Feoffment to a Feme Covert, and afterwards devises the same Land, the Husband disagrées, this shall have relation between the Parties, so as the Husband shall not be charged in damages, but it shall not make the void Devise good, 3 Co. 28. b. Butler and Baker's Case.

So if a Man makes a Release, and afterwards get Letters of Administration, that shall not relate to make his Release good to barr him, neither shall his refusal of the Executorship do it, be­cause at the time of the Release or the refusal there was not any right of Action in him; for that commences in the one Case after Administration, and in the other after the Probate of the Will.

Notwithstanding such refusal this Executor may afterwards administer at his pleasure,Godolph. 141. and intermeddle with the Goods of the Testator, and if the Administration should be good also, then they would have a power over the same Estate by two Titles at the same time, which cannot be.

The greatest Argument which can be brought against this is ab inconvenienti, because it cannot be safe to purchase under an Ad­ministrator, since a Will may be concealed for a time, and af­terwards the lawful Executor therein appointed may appear; but this is more proper for the Wisdom of a Parliament to redress than that the Law should be altered by a judicial determination of the Court, and therefore he prayed Iudgment for the Defendant.

The Court was of Opinion that the Ordinary cannot grant Administration where there is an Executor named in the Will,Judgment. and therefore gave Iudgment for the Defendant against the Ven­dée of this Term.

The Lord Townsend versus Dr. Hughes. In C. B.

THE Plaintiff brought an Action of Scandalum Magnatum for these Words spoken of him by the Defendant,No new Trial in an Action of Scandalum Magnatum. Mod. Rep. 232. viz. He is an unworthy Man and acts against Law and Reason: Vpon Not Guilty pleaded, the Case was tried, and the Iury gave the Plaintiff 4000 l. damages.

The Defendant before the Trial made all possible submission to my Lord; he denied the speaking the Words, and made Oath that he never spoke the same; after the Trial he likewise ad­dressed to my Lord as before, making several Protestations of his Innocency: But having once in a Passion said, that he scorned to submit; My Lord for that Reason would not remit the Da­mages; it was therefore moved for a new Tryal upon these Reasons.

1. Because the Witnesses, who proved the Words, were not Persons of Credit, and that at the time, when they were al­ledged to be spoken, many Clergy-men were in Company with the Defendant and heard no such Words spoken.

2. It was sworn, that one of the Iury confessed, that they gave such great damages to the Plaintiff (not that he was dam­nified so much) but that he might have the greater opportunity to shew himself noble in the remitting of them.

3. And which was the principal Reason, because the Damages were excessive.

Curia.The Court delivered their Opinions seriatim; and first,

The Chief Iustice North said, In Cases of Fines for criminal Matters a Man is to be fined by Magna Charta with a salvo con­tenemento suo; and no Fine is to be imposed greater than he is able to pay; but in Civil Actions the Plaintiff is to recover by way of compensation for the damages he hath sustained, and the Iury are the proper Iudges thereof.

This is a Civil Action brought by the Plaintiff for Words spoken of him, which if they are in their own nature actionable, the Iury ought to consider the damage which the Party may sustain; but if a particular Averment of special damages makes them actionable, then the Iury are only to consider such damages as are already sustained, and not such as may happen in futuro, because for such the Plaintiff may have a new Action: He said that as a Iudge he could not tell what value to set upon the Ho­nour [Page 151] of the Plaintiff, the Iury have given 4000 l. and therefore he could neither lessen the Sum or grant a new Trial, especi­ally since by the Law the Iury are Iudges of the damages; and it would be very inconvenient to examine upon what account they gave their Verdict; they having found the Defendant guilty did believe the Witnesses, and he could not now make a doubt of their Credibility.

Wyndham Iustice accorded in omnibus.

Atkins Iustice contra. That a new Trial should be granted, for 'tis every days practice, and he remembred the Case of Gould­ston and Wood in the Kings Bench, where the Plaintiff in an Action on the Case for Words for calling of him Bankrupt recovered 1500 l. and that Court granted a new Tryal, because the damages were excessive.

The Iury in this Case ought to have respect only to the da­mage which the Plaintiff sustained, and not to do an unaccount­able thing that he might have an opportunity to shew himself generous; and as the Court ought with one Eye to look upon the Verdict, so with the other they ought to take notice what is con­tained in the Declaration, and then to consider whether the Words and Damages bear any proportion, if not, then the Court ought to lay their hands upon the Verdict: 'Tis true they cannot lessen the damages, but if they are too great the Court may grant a new Tryal.

Scroggs Iustice accorded with North and Wyndham, that no new Tryal can be granted in this Cause: He said that he was of Council with the Plaintiff before he was called to the Bench, and might therefore be supposed to give Iudgment in favour of his former Client, being prepossess'd in the Cause, or else (to shew himself more signally just) might without considering the matter give Iudgment against him; but that now he had forgot all former relation thereunto, and therefore delivered his Opinion, that if he had been of the Iury he should not have given such a Verdict, and if he had been Plaintiff he would not take advantage of it, but would overcome with Forgiveness such Follies and Indis­cretions of which the Defendant had been guilty; but that he did not sit there to give Advice, but to do Iustice to the People. He did agrèe that where an unequal Tryal was, (as such must be where there is any Practice with the Iury) in such Case 'tis good reason to grant a new Tryal, but no such thing appearing to him in this Case a new Tryal could not be granted.

Suppose the Iury had given a scandalous Verdict for the Plaintiff, as a Penny Damages, he could not have obtained a new Trial in hopes to increase them, neither shall the Defendant in hopes to lessen them; and therefore by the Opinion of these three Iustices a new Tryal was not granted.

Afterwards in this Term Serjeant Maynard moved in Arrest of Iudgment, and said, that this Action was grounded upon the Statute of R. 2. Which consists of a Preamble, reciting the Mischief, and of the Enacting part in giving of a Remedy, and that the Defendants Case was neither within the Mischief or the Remedy.

This Statute doth not create any Action by way of particu­lar design, and if the matter was now Res integra much might be said that an Action for Damages will not lye upon this Sta­tute; for the Statute of Westm. 2. appoints that the Offender shall suffer imprisonment, until he produces the Author of a false Report;Ca. 33. and the Statute of 2 R. 2. which recites that of Westm. 2. gives the same punishment, and the Action is brought qui tam, &c. and yet the Plaintiff only recovers for himself: It was usual to punish Offenders in this kind in the Star Cham­ber; as in the * Earl of Northampton's Case, where one Good­rick said of him, That he wrote a Book against Garnet, and a Letter to Bellarmine; 12 Co. 132. intimating, that what he wrote in the Book was not his Opinion, but only ad captandum populum, which was a great disgrace to him in those days, being as much as to say, he was a Papist, Cro. Eliz.

But the Serjeant would not insist upon that now, since it hath been ruled that where a Statute prohibits the doing of a thing which if done might be prejudicial to another; in such case he may have an Action upon that very Statute for his Damages.

But the ground on which he argued was, that these words as spoken are not within the meaning of the Act, for they are not actionable.

1. Because they are no scandal, and words which are actio­nable must import a great Scandal, which no circumstance or occasion of speaking can excuse; and if they are scandalous and capable of any mitigation by the precedent discourse, the pleading of that matter will make them not actionable; and for this the Lord4 Co. Cromwel's Case is a plain Authority, the Words spoken of him were, You like those that maintain Sedition against the King's Person; the occasion of speaking of which was to give an account of his favouring the Puritan Preachers, which was all that was intended by the former dis­course; for that Lord had approved a Sermon which was preach­ed [Page 153] by a Parson against the Common Prayer Book, and the De­fendant having forbid such Preaching, the Lord told him that he did not like him, upon which he spoke those Words; so that the subject matter explained the sense, for which reason it was adjudg­ed that the Action would not lie.

2. The scandal for which an Action may be brought within this Statute must be false, for that word goes quite through the whole Act, viz. false News, false Lyes, &c. and the words here are so general, that it cannot appear whether they are true or false, for there can be no Iustification here; as in case where a Man is charged with a particular Crime, my Lord Townsend is not charged with any particular Act of Injustice as a Subject, nor with any Misdemeanour as a Peer, nor with any Offence in an Office.

If therefore in all Actions brought upon this Statute the De­fendant may justifie and put the matter in Issue to try whether it be true or false; and in this Case the Defendant can neither ju­stifie nor traverse, for this reason the Action will not lie.

That the Words are general and of a doubtful signification, it cannot be denied; for to say He is an unworthy Man imports no particular Crime; Unworthy is a term of Relation, as he is unworthy of my Friendship, Acquaintance or Kindred, and so may be applicable to any thing; and a Lord may in many things be unworthy of a particular Mans Friendship, as if he promises to pay a Sum of Mony at a day certain, and faileth in the payment, (as 'tis often seén,) such is an unworthy Man, but that will not bear an Action: He is an unworthy Man who invites another to Dinner to affront him; but it will not bear an Action to say, That a Lord invited me to a Dinner to abuse me; neither will it be actionable to say, He is an unworthy Man, because such instances may be given of his Vnworthiness which will not bear an Action. If my Lord had beén compared to any base and unworthy thing, these Words might have béen actionable; and that was the Case of the Lord Marquess of Dorchester, it being said of him, That there was no more value in him than in a Dog.

Then to say, A Man acts against Law, this is no Scandal, because every Man who breaks a Penal Law, and suffers the Pe­nalty, is not guilty of any Crime. The Statute commands the burying in Woollen, the Party buries one of his Family in Linnen; in this he acts against the Law, but if the Penalty is satisfied, the Law is so likewise.

A Man who acts against Law acts against Reason, because Lex est summa ratio; but no instance is here given wherein he did thus act: 'Tis not said, that he did act against Law wilfully, or that [Page 154] he used to do any thing against Law; and so cannot be like the Case of the Duke of Buckingham, who brought an Action for these Words, viz. You are used to do things against Law, and put Cat­tle into a Castle where they cannot be replevied; for there was not only an Vsage charged upon him, but a particular instance of Oppression.

This Action lies for Words spoken of a Iudge of either Bench, and of a Bishop, as well as of a Peer. Now if a Man should say, A Judge acted against Law, will an Action lie? Because a Iudge may do a thing against Law, and yet very justly and ho­nestly, unless all the Iudges were infallible, and could not be subject to any mistakes, which none will deny.

So if a Bishop return the Cause of his Refusal to admit a Clerk quia criminosus, this is a Return against Law, because 'tis too general; but if J. S. should say, A Bishop acted against Law, and shew that for Cause, an Action would not lye. If the the Lord Townsend had commanded his Bayliff to make a Di­stress without Cause, that had been acting against Law and Reason.

He agreed the Words to be uncivil, but not actionable; for if such Construction should be made, a Man must talk in Print, or otherwise not speak any thing of a Peer for fear of an Action.

There are many Authorities where a Péer shall not have an Action for every trivial and slight Expression spoken of him.

As to say of a Péer, He keeps none but Rogues and Rascals about him like himself; by the Opinion of two Iustices, Yelverton and Flemming, the Action would not lie, because they are Words of Scolding; and this was the Case of the Earl of Lincoln, Cro. Jac. 196. But the Court was divided; the Defendant died, and so the Writ abated.

Actions for Words have béen of late too much extended; for­merly there were not above two or three brought in many years; and if this Statute should be much inlarged the Lords them­selves will be prejudiced thereby by maintaining Actions one against another.

Vpon this Statute of 2 R. 2 c. 5 there was no Action brought till 13 H. 7. which was above an hundred years after the making of that Law; and the occasion of making the Law was, because the Duke of Lancaster, who was then the first Prince of the Blood, took notice that divers were so hardy as to speak of him several lying Words, 1 R. 2. num. 56. and therefore this Sta­tute was made to punish those, who devised false News, and hor­rible and false Lies of any Peer, &c. whereby Discords might arise between the Lords and Commons, and great Peril and Mis­chief [Page 155] to the Realm and quick Subversion thereof: Now from the natural intent and construction of these Words in the Act, can it be supposed that if one should say, Such a Peer is an unworthy Man, that the Kingdom would be presently in a flame and turned into a state of confusion and Civil War; and to say, That he acts against Law, that the Government would thereby be in danger to be lost, and quick Subversion would follow? This cannot be the common and ordinary understanding of these Words.

If therefore the Plaintiff by speaking these Words was in no hazard nor any wise damnified; if he was not touched in his Loyalty as a Péer, nor in danger of his Life as a Subject; if he was not thereby subjected to any Corporal or Pecuniary Pu­nishment; nor charged with any Breach of Oath, nor with a particular Miscarriage in any Office; if the Words are so ge­neral that they import no Scandal, and are neither capable of any Iustification; and lastly, if they are not such horrible Lies as are intended to be punished by the Statute; for these Reasons he con­cluded the Action would not lie, and therefore prayed, that the Iudgment might be arrested.

Serjeant Baldwin and Serjeant Barrel argued on the same side for the Defendant, but nothing was mentioned by them which is not fully insisted on in the Argument of Serjeant May­nard, for which Reason I have not reported their Arguments.

But Pemberton Serjeant, who argued for the Plaintiff, said,Ex parte Quer. that it would conduce much to the understanding of the Statute of 2 R. 2. cap. 5. upon which this Action of Scandalum Magnatum was grounded, to consider the occasion of the making of it.

In those days the English were quite of another Nature and Genius from what they are at this time; the Constitution of this Kingdom was then Martial and given to Arms, the very Tenures were Military, and so were the Services as Knights Service, Castleguard and Escuage. There were many Castles of defence in those days in the hands of private Men; their Sports and Pastimes were such as Tilts and Turnaments, and all their Imployments were tending to bréed them up in Chi­valry.

Those who had any dependency upon Noble Men were en­ured to Bows and Arrows, and to signalize themselves in Valour it was the only way to Riches and Honour; Arts and Sciences had not got such ground in the Kingdom as now; but the Commons had almost their dependance upon the Lords, whose Power then was exceéding great, and their Practices were con­formable [Page 156] to their Power; and this is the true Reason why so few Actions were formerly brought for Scandals, because when a Man was injured by Words he carved out his own Remedy by his Sword.

There are many Statutes made against riding privately armed, which Men used in those days, to repair themselves of any Injury done unto them, for they had immediately recourse to their Arms for that purpose, and seldom or never used to bring any Actions for damages.

This was their Revenge; and having thus made themselves Iudges in their own Cases, it was reasonable that they should do themselves Iustice with their own Weapons; but this Revenge did not usually end in private Quarrels, they took Parties, in­gaged their Friends, their Tenants and Servants on their sides, and by such means made great Factions in the Commonwealth, by reason whereof the whole Kingdom was often in a flame, and the Government as often in danger of being subverted; so that Laws were then made against wearing Liverys or Badges, and against riding armed.

This was the mischief of those times; to prevent which this Statute of R. 2. was made, and therefore all provoking and vilifying Words, which were used before to exasperate the Peers and to make them betake themselves to Arms, by the intent of this Act are clearly forbidden, which was made chiefly to prevent such consequences; for it was to no purpose to make a Law and thereby to give a Péer an Action for such Words as a common person might have before the making of the Statute; and for which the Peer himself had a Remedy also at the Common Law, and therefore needed not the help of this Act.

If then the design of this Statute was to hinder such practices as aforesaid, the next thing to be considered is what was usual in those days to raise the Passions of Peers to that degreé, and that will appear to be not only such things as imported a great Scandal in themselves, or such for which an Action lay at the Com­mon Law, but even such things as savoured of any Contempt of their persons; and such as brought them into disgrace with the Commons, for hereby they took occasion of Provocation and Revenge.

'Tis true that very few Actions were brought upon this Statute in some considerable time after it was made, for though such practices were thereby prohibited, the Lords did not presently apply them­selves to the Remedy therein given, but continued the Military way of Revenge to which they had béen accustomed.

As to the first Objection that hath been made, he gave no answer to it, because it was not much insisted upon on the other side, whether an Action would lye upon this Statute, for the very words of it are sufficient ground for an Action; and 'tis very well known that whereever an Act prohibits an evil thing,Maxim. the person against whom such thing is done, may maintain an Action.

This Statute consists of two parts, the first is prohibitory,Vide Ante. Viz. That no Man shall do so, &c. Then comes the additio­nal Clause, and saith That if he do he shall incur such Penalty. 'Tis on the first part that this Action is grounded; and so it was in the Earl of Northampton's Case, in that Report which goes under the name of the Lord Coke's 12th. Report, where by the Resolution of all the Iudges in England, except Flem­ming who was absent; it was adjudged that it was not ne­cessary that any particular Crime should be fixed on the Plain­tiff, or any Offence for which he might be indicted.

So are the Authorities in all the Cases relating to this Acti­on. In the Lord4 Co. 13. b. 2 Cro. 196. Cromwel's Case for these Words, You like those who maintain Sedition. In the Lord of Lincoln's Case, My Lord is a base Earl, and a paultry Lord, and keepeth none but Rogues and Rascals like himself. In the Duke of Buck­ingham's Case, He has no more Conscience than a Dog. In the LordHill. 16 Car. 2 Rot. 1269. Affirmed in a Writ of Er­ror in B R. Marquess of Dorchester's Case, He is no more to be valued than the Black Dog which lies there. All which Words were held actionable, and yet they touch not the persons in any thing concerning the Government, or charge them with any Crime, but in point of Dignity or Honour; And they were all vil­lifying Words, and might give occasion of Revenge.

And so are the Words for which this Action is brought, they are rude, uncivil, and ill natured; Unworthy is as much as to say base and ignoble, a contemptible Person, and a Man of neither Honour or Merit. And thus to speak of a Nobleman, is a Reflection upon the King, who is the Fountain of Honour, that gives it to such persons who are (in his Iudgment) deser­ving, by which they are made capable of advising him in Par­liament, and it would be very dishonourable to call unworthy Men thither.

'Tis likewise a dishonour to the Nobility to have such a per­son to fit among them as a Companion, and to the Commons to have their proceedings in Parliament transmitted to such Peérs: so that it tends to the dishonour of all Dignities, both of King, Lords and Commons, and thereby discords may arise between the two Houses, which is the Mischief intended to be remedied by this Act.

Then the following Words are as scandalous; for to say A Man acts against Law and Reason, imports several such acts done; a Man is not denominated to be unworthy by doing of one sin­gle Act; for in these Words more is implied, than to say he hath done an unworthy thing; for the Words seem to relate to the Office which the Plaintiff had in the Country, as Lord Lieutenant, which is an Office of great Honour, and can any thing tend to cause more discord and disturbance in the Kingdom, than to say of a great Officer, That he acts according to the dictates of his Will and Pleasure? the consequence of which is, that he will be rather scorned than obeyed.

It hath been objected, that the Words are general, and charge him not with any act.

Answ. The Scandal is the greater; for 'tis not so bad to say A Man did such a particular thing against Law and Reason; as to say, He acts against Law; which is as much as to say, his constant course and practice is such: And to say that the Words might be meant of breaking a Penal Law, that is a foreign Construction; for the plain sense is, he acts against the known Laws of the Kingdom, and his practice and designs are so to do, for he will be guided neither by Law or Reason.

Object. It has been objected that the Scandal must be false: But whether true or not, there can be no justification here, be­cause they are so general, that they cannot be put in Issue.

Answ. He agreed that no Action would lye upon this Statute if the words were true; but in some Cases the divulging of a Scan­dal was an Offence at the Common Law; now to argue (as on the other side) that the Defendant cannot justifie, and therefore an Action will not lye, is a false Consequence; because words may be scandalous and derogatory to the dignity of a Peer, and yet the subject matter may not be put in Issue.

He agreed also that occasional Circumstances may extenuate and excuse the Words, though ill in themselves; but this can­not be applied to the Case in question, because the Words were not mitigated: The Defendant pleaded Not Guilty, and insisted on his Innocence; the Iury have found him Guilty, which is an aggravation of his Crime; if he would have extenuated them by any occasion upon which they were spoken, he should have pleaded it specially, or offered it in Evidence, neither of which was done.

This Act is to be taken favourably for him against whom the Words are spoken; because 'tis to prevent great Mischiefs which may fall out in the Kingdom, by rude and uncivil dis­courses; and in such Cases 'tis usual for Courts rather to en­large [Page 159] the remedy than to admit of any extenuation; for which reasons he prayed that the Plantiff might have his Iudgment.

It was argued by Serjeant Calthrop on the same side, and to the same effect.

Afterwards this Term, all the Iudges argued this Case,Argument at the Bench. se­riatim at the Bench. And first Iustice Scroggs said, That the greatness of the Damages given should not prevail with him, either on the one side or the other; at the Common Law no Action would lye for such Words, though spoken of a Peer, for such Actions were not formerly much countenanced; but now since a Remedy is given by the Statute, Words should not be construed either in a rigid or mild sense, but according to the genuine and natural meaning, and agreeable to the common understanding of all Men.

At the Barr the strained sense for the Plaintiff is, that these Words import He is no Man of Honour; and for the Defendant, that they import no Scandal; and that no more was meant by them, but what may be said of every Man.

'Tis true, in respect of God Almighty, we are all Vnworthy, but the subsequent Clause explains what unworthiness the De­fendant intended, for he infers him to be Unworthy, because he acts against Law and Reason.

Now whether the Words thus explained fix any Crime on the Plaintiff, is next to be considered; and he was of Opinion that they did fix a Crime upon him; for to say He is an unwor­thy Man, is as much as to say, He is a vitious person, and is the same as to call him a corrupt Man, which in the Case of a Peer is actionable; for general words are sufficient to support such an Action, though not for a common person.

To say, a Man acts against Law and Reason, is no Crime, if he do it ignorantly; and therefore if he had said My Lord was a weak Man, for he acts against Law and Reason; such words had not been actionable; but these Words as spoken do not relate to his Vnderstanding, but to his Morals; they relate to him also as a Peer (though the contrary has been objected) that they relate to him only as a Man, which is too nice a distincti­on; for to distinguish between a Man and his Peerage, is like the distinction between the person of the King, and his Autho­rity, which hath been often exploded; the words affect him in all qualities, and all relations.

It has been also objected, that the Words are too general; and like the Case of the Bishops Return, that a Man is crimi­nosus, [Page 160] which is not good: But though they are general in the Case of a Peer, they are actionable; for to say of a Bishop That he is a wicked Man, these are as general words, and yet an Acti­on will lye.

It has been also objected, That general Words cannot be justified; but he was of another Opinion, as if the Plaintiff, who was Lord Lieutenant of the County, had laid an unequal charge upon a Man, who upon complaint made to him, ordered such charge to stand, and that his will in such case should be a Law: If the person should thereupon say That the Lord had done Unwor­thily, and both against Law and Reason; those words might have been justified, by shewing the special matter, either in Pleading or Evidence.

'Tis too late now to examine whether an Action will lye up­on this Statute, that must be taken for granted, and therefore was not much insisted on by those who argued for the Defen­dant, for the Authorities are very plain, that such Actions have been allowed upon this Statute.

The Words, as here laid to be spoken, are not so bad as the Defendant might speak, but they are so bad that an Action will lye for them; and though they are general, yet many Cases might be put of general words which import a Crime, and were adjudged actionable.

The Earl of Leicester's Case, He is an Oppressor: The Lord of Winchester's Case, He kept me in Prison 'till I gave him a Release; these words were held actionable, because the plain in­ference from them is, That they were Oppressors: The Lord Abergavenny's Case, He sent for me and put me into Little Ease: It might be presumed, that that Lord was a Iustice of Peace, as most Peers are in their Counties, and that what he did was by colour of his Authority; so are all the Cases cited by those who argued for the Plaintiff, in some of which the words were strain­ed to import a Crime, and yet adjudged actionable; especially in the Case of the Lord Marquess of Dorchester, He is to be valued no more than a Dog, which are less slanderous Words than those at the Bar, because the slander is more direct and positive.

It appears by all these Cases, that the Iudges have always construed in favour of these Actions, and this has been done in all probability to prevent those dangers that otherwise might ensue if the Lords should take revenge themselves; for which reasons he held the Action will lye.

Atkyns Iustice contra. This is not a common Action upon the Case, but an Action founded upon the Statute of the 2 of R. 2. upon the Construction whereof the Resolution of this Case will depend, whether the Action will lie or not. And as to that he considered,

  • 1. The Occasion.
  • 2. The Scope.
  • 3. The parts of the Statute.

1. The occasion of it is mentioned in Cotton's Abridgment of the Records of the Tower f. 173. nu. 9 and 10. At the sum­moning of this Parliament, the Bishop of St. Davids declared the Causes of their meeting, and told both the Houses of the Mis­chiefs that had hapned by divers slanderous Persons, and sowers of Discord, which he said were Dogs that eat raw Flesh; the mean­ing of which was, that they devoured and eat one another; to prevent which the Bishop desired a Remedy, and his Request seemed to be the Occasion of making this Law; for ex malis moribus bonae nascuntur Leges.

2. The Scope of the Act was to restrain unruly Tongues from raising false Reports, and telling Stories and Lyes of the Peers and Great Officers of the Kingdom; so that the design of the Act was to prevent those imminent dangers which might arise and be occasioned by such false Slanders.

3. Then the parts of the Act are three, viz. reciting the Offence and the Mischief, then mentioning the ill Effects, and appoint­ing of a Penalty.

From whence he Observed.

1. That here was no new Offence made or declared; for no­thing was prohibited by this Statute, but what was so at the Com­mon Law before.

The Offences to be punished by this Act, are mala in se, and those are Offences against the Moral Law; they must be such in their nature, as bearing of false Witness; and these are Offences against a common Person, which he admitted to be aggravated by the eminency of the person against whom they were spoke; but every uncivil Word, or rude Expression spo­ken, even of a Great Man, will not bear an Action; and there­fore an Action will not lie upon this Statute for every false Lye, but it must be horrible as well as false, and such as were pu­nishable in the High Commission Court, which were enormous Crimes, 12 Co. 43.

By this description of the Offences, and the consequences and effects thereof, he said he could better judge whether the [Page 162] Words were actionable or not; and he was of Opinion, that the Statute did not extend to Words of a small and trivial nature, nor to all Words which were actionable, but only to such which were of a greater magnitude, such by which Discord might arise be­tween the Lords and Commons, to the great peril of the Realm, and such which were great Slanders, and horrible Lies, which are words purposely put into this Statute, for the aggravation and distinction of the Crime; and therefore such Words which are actio­nable at the Common Law, may not be so within this Statute, because not horrible great Scandals.

He did not deny, but that these were undecent and uncivil words, and very ill applied to that honourable person of whom they were spoken, but no body could think that they were horrible great slanders, or that any debate might arise between the Lords and Commons, by reason such words were spoken of this Peer, or that it should tend to the great peril of the Kingdom, and the quick destruction thereof, such as these were not likely to be the effects and consequences of these Words, and therefore could not be within the meaning of the Act, because they do not agree with the discription given in it.

2. Here is no new punishment inflicted on the Offender, for at the Common Law, any person for such Offences as herein are described might have been Fined and Imprisoned, either upon Indictment or Information brought against him, and no other punishment is given here but Imprisonment.

Even at the Common Law scandal of a Peer might be punish­ed by Pillory and loss of Ears, 5 Co. 125. De Libellis Famosis, 12 Co. 37. 9 Co. 59. Lamb's Case. So that it appears this was an Offence at the Common Law, but aggravated now, because against an Act of Parliament, which is a positive Law; much like a Proclamation which is set forth to enforce the execution of a Law, by which the Offence is afterwards greater.

He did agree, that an Action would lie upon this Statute, though there were no express Words to give it to a Peer, be­cause where there is a Prohibition, and a Wrong and Damage arises to the Party, by doing the thing prohibited; in such Case the Common Law doth intitle the Party to an Action, 10 Co. 75. 12 Co. 100, 103. And such was the Resolution in the Earl of Northampton's Case, upon construction of the Law as inci­dent to the Statute; and as the Offence is greater because of the Act, and as the Action will lie upon the Statute, so the Party injured may sue in a qui tam, which he could not have done before the making this Law.

[Page 163] 3. But that such words as these were not actionable at the Com­mon Law, much less by the Statute; for the Defendant spoke only his Iudgment and Opinion, and doth not directly charge the Plaintiff with any thing, and might well be resembled to such Cases as are in Rolls Abridgm. 1 part 57. pl 30. which is a little more solemn, because adjudged upon a special Verdict; the Words were spoken of a Iustice of Peace, Thou art a Blood-Sucker, and not fit to live in a Commonwealth. These were not held actionable, because they neither relate to his Office, or fix any Crime upon him. Fol. 43. in the same Book, Thou de­servest to be hanged, not actionable, because it was only his Opinion.

So, where the Words are general without any particular Circumstances, they make no impression and gain no credit; and therefore in Cro. Car. 111. 1 Roll. Abridgm. 107. pl. 43. You are no true Subject to the King; the Action would not lie.

In this Case 'tis said, the Plaintiff acts against Law, which doth not imply a Habit in him so to do; and when Words may as well be taken in a mild, as in a severe Sense, the Rule is quod in mitiori sensu accipienda sunt. Now these Words are capable of such a favourable construction; for no more was said of the Plaintiff, than what in some sense may be said of every person whatsoever; for who can boast of his Innocency? who keeps close in all his actions to Law and Reason? and to say A Man acts against both, may imply that he departed from those Rules in some particular Cases, where it was the Error of his Iudgment only.

In the Duke of Buckingham's Case, Sheppard's Abridgment 1 part, f. 28. Viz. You are used to do things against Law; and mentions a particular fact there indeed, because of Usage; of the ill practice it was held that an Action lies; but if he had been charged for doing a thing against Law but once, an Action would not lie.

He then observed how the Cases which have been adjudged upon this Statute, agree with the Rules he had insisted on in his Argument, which Cases have not been many, and those too of late times; in respect of the Antiquity of the Act, which was made almost 300 hundred years since, Anno 1379. and for 120 years after no Action was brought, the first that is Report­ed was 13 H. 7. Keilway 26. So that we have no contempora­nea expositio of the Statute to guide an Opinion, which would be a great help in this Case; because they who make an Act best understand the meaning; but now the meaning must be [Page 164] collected from the Statute it self, which is the best Exposition, as the Rule is given in Bonham's Case, 8 Co. Vide the Case in 13 H. 7.

The next Case in time is the Duke of Buckingham's Case, 4 H 8. Cromp Jur. of Courts, f. 13. You have no more Conscience than a Dog. Lord Abergavenny against Cartwright, in the same Book, You care not how you come by Goods; in both which Cases the Words charge the Plaintiff with particular matter, and give a Narrative of something of a false Story, and do not barely rest upon an Opinion. In the Bishop of Norwich his Case, Cro. Eliz. 1. Viz. You have writ to me that which is against the Word of God, and to the maintainance of Superstition. These were held actionable, because they refer to his Function and great­ly defame him, and yet he had but 500 Marks Damages. 29 & 30 Eliz. 1 Cro. 67. The Lord Mordant against Bridges, My Lord Mordant did know that Prude robbed Shotbolt, and bid me com­pound with Shotbolt for the same, and said, he would see me sa­tisfied for the same, though it cost him an hundred pounds; which I did for him being my Master, otherwise the Evidence I could have given would have hanged Prude: These Words were held actionable and 1000 l. Damages given; and in all the other Ca­ses which have been mentioned upon this Statute, and where Iudgment was given for the Plaintiff, the Words always charge him with some particular Fact, and are positive and certain, but where they are doubtful and general, and signifie only the Opinion of the Defendant, they are not actionable.

The Words in the Case at Bar, neither relate to the Plain­tiff as a Peer, or a Lord Lieutenant, and charge him with no particular Crime; so that from the authority of all these Cases he grounded his Opinion, that the Action would not lie; and he said, If Laws should be expounded to wrack People for Words, instead of remedying one Mischief, many would be introduced, for in such Case they would be made Snares for Men.

The Law doth bear with the Infirmities of Men, as Reli­ligion, Honour and Vertue doth in other Cases; and amongst all the excellent Qualities which Adorn the Nobility of this Na­tion, none doth so much as forgiving of Injuries; Solomon saith, That 'tis the Honour of a Man to pass by an Infirmity. Which if the Plaintiff should refuse, yet the Defendant (if he thinks the Damages excessive) is not without his remedy by Attaint, for he said he could shew where an Attaint was brought against a Iury for giving 60 l. Damages.

He farther said, that he could not find that any Iudgment had been either reversed or arrested upon this Statute, and therefore it was fit that the Law should be setled by some Rule, because 'tis a wretched condition for People to live under such Circumstances, as not to know how to demean themselves to­wards a Péer; and since no Limits have been hitherto prescribed 'tis fit there should be some now, and that the Court should go by the same Rules in the Case of a Peer, as in that of com­mon person, that is, not to construe the Words actionable with­out some particular Crime charged upon the Plaintiff, or unless he alledge special damages; for which Reasons he held that this Action would not lye.

Wyndham Iustice accorded with Scroggs; and the Chief Iustice North agreed with them in the same Opinion; his Argument was, viz.

First, he said that he did not wonder that the Defendant made his Case so solemn, being loaded with so great damages; but that his Opinion should not be guided with that or with any Rules, but those of Law, because this did not concern the Plain­tiff alone, but was the Case of all the Nobility of England; but let it be never so general, and the Conveniences or Incoveni­ences never so great, he would not upon any such considerations alter the Law.

He said that no Action would lie upon this Statute, which would not lie at the Common Law; for where a Statute pro­hibits a thing generally, and no particular Man is concerned, an Offence against such a Law is punishable by Indictment; but where there is a particular damage to any person by doing the thing prohibited, there an Action will lie upon the Statute, and so it will at the Common Law.

The Words therefore which are actionable upon this Statute are so at the Common Law.

This Statute extends only to Peers or other great Officers; now every Peer as such is a great Officer, he has an Office of great Dignity, he is to support the King by his advice, of which he is made capable by the great Eminency of his Reputation, and therefore all Words which reflect upon him as he is the Kings Councellor, or as he is a Man of Honour and Dignity, are action­able at the Common Law.

In the ordinary Cases of Officers 'tis not necessary to say that the Words were spoken relating to his Office, as to say of a Lawyer that He is a Sot or an Ignoramus; or of a Tradesman, He is a [Page 166] Bankrupt, the Action lies though the Words were not spoken of either as a Lawyer or Tradesman.

He did not think that Iudges were to teach Men by what Rules to walk other than what did relate to the particular mat­ter before them, all other things are gratis dicta; neither would he allow that distinction, that an Action would not lie where a Man spoke only his Opinion; for if that should be admitted, it would be very easie to scandalize any Man, as I think such a Judge is corrupt, or I am of Opinion that such a Privy Councel­lor is a Traytor; and can any Man doubt whether these or such like Words are actionable or not, because spoken only in the sense of the person? 'Tis true, in some Cases where a Man speaks his own particular disesteem an Action will not lie, as if I say, I care not for such a Lord, but that differs much where a Man speaks his Opinion with reference to a Crime; for Opinions will be spread, and will have an implicit Faith, and because one Man believes it another will; and 'tis upon this ground that all the Cases which have been since the Statute are justified; and so was the late Case ofSid. 233. the Marquess of Dorchester, He is no more to be valued than the Black Dog which lies there which were Words of disesteem, and only the Opinion of the Defen­dant, in which Case Iudgment was affirmed in a Writ of Error.

Object. If it be objected to what purpose this Statute was made if no Action lies upon it, but what lay at the Common Law.

Answ. The Plaintiff now upon the Statute must prosecute tam pro Domino Rege quam pro seipso, which he could not do at the Common Law. And it has beén held in the Starr-Chamber that if a Scandalum Magnatum be brought upon this Statute the Defendant cannot justifie, because 'tis brought qui tam, &c. and the King is concerned; but the Defendant may explain the Words and tell the occasion of speaking of them, if they are true, they must not be published because the Statute was to prevent Discords.

Object. These Words carry in them no disesteem.

Answ. According to a Common Vnderstanding they are Words of disrespect and of great disesteem; for 'tis as much as to say, that the Plaintiff is a Man of no Honour; he is one who lives after his own Will, and so is not fit to be employed under the King; if any precedent discourse had qualified the speaking these Words it ought to have been shewn by the Defendant, which is not done, and therefore he concluded that the Words notwith­standing [Page 167] what was objected were actionable; and so by the Opi­nion of him, Wyndham and Scroggs Iustices, Iudgment was given for the Plaintiff.

Atkins Iustice of a contrary Opinion.

Anonymus.

AN Action of Assault, Battery,Amend­ment after a Demurrer joyned and before Judg­ment given, good. Wounding and false Im­prisonment for an hour was brought against the Defen­dant, who pleads quoad venire vi & armis Not-Guilty; and as to the Imprisonment he justified as Servant to the Sheriff attending upon him at the time of the Assize, from whom he received a Command to bring the Plaintiff (being another of the She­riffs Servants) from the Conventicle, where finding of him, he (to wit the Defendant) did molliter manus imponere upon the Plaintiff, and brought him before his Master, quae est eadem transgressio; To this the Plaintiff demurred and shewed for Cause,

1. That the Substance of the Iustification is not good,2 Cro. 360. be­cause the Servant could not thus justifie though his Master might; for the Lord may beat his Villain without a Cause, but if he command another to do it, an Action of Battery lies against him, 2 H. 4. 4. But though this might have been good, if well pleaded, yet 'tis not good as pleaded here; for

2. The Defendant saith quoad venire vi & armis Not-Guilty,Harding and Ferne, Postea. but saith nothing of the wounding which cannot be justified, and therefore this Plea is not good; for which reason it was clearly resolved that the Plea was ill, but the Court inclined that the Sub­stance of the Plea was well enough.

The Chief Iustice and Iustice Scroggs were of Opinion that a Man may as well send for his Servant from a Conventicle as from an Alehouse, and may keep him from going to either of those places: And the Chief Iustice said that he once knew it to be part of a Marriage Agreement that the Wife should have leave to go to a Conventicle.

But in this Case Leave was given to amend the Plea,Sid. 107. and put in quoad vulnerationem Not-Guilty; and it was held that though the Parties had joined in Demurrer, yet the Defendant might have Liberty to amend before Iudgment given.

Singleton versus Bawtree Executor.

Traverse must be where the Charge in the Decla­ration is not fully an­swered. ASsumpsit against the Defendant as Executor, who pleads the Testator made one J. S. Executor, who proved the Will and took upon him the Execution thereof, and administred the Goods and Chattels of the Testator, and so concludes in Abate­ment Et petit Judicium de Brevi, with an Averment that J. S. Superstes & in plena vita existit.

To this Plea the Plaintiff demurred, because the Defendant ought to have traversed abs (que) hoc that he was Executor, or ad­ministred as Executor, and so are all the Pleadings, 9 H. 6. 7. 4 H. 7. 13. 7 H. 6. 13.

But Serjeant Pemberton for the Defendant said, that there is a difference when Letters of Administration are granted in case the Party die intestate, and when a Man makes a Will and therein appoints an Executor, for in that Case the Execu­tor comes in immediately from the death of the Testator; but when a Man dies intestate the Ordinary hath an Interest in the Goods, and therefore he who takes them is Executor de son tort, and may be charged as such; but 'tis otherwise generally, where there is a Will and a rightful Executor, who proveth the same, for he may bring a Trover against the Party for taking of the Testators Goods though he never had the actual possession of them; and therefore the taking in such case will not make a Man Executor de son tort, because there is another lawful Exe­cutor; but 'tis true, that if there be a special Administration 'tis otherwise; as if a Stranger doth take upon him to pay Debts or Legacies; or to use the Intestates Goods; such an express Administration will make him Executor de son tort, and liable, as in Read's Case, 5 Co.

So in this Case the Defendant pleads that J. S. was Execu­tor, which prima facie discharges him; for to make him chargea­ble the Plaintiff ought in his Replication to set forth the special Administration, that though there was an Executor, yet before he assumed the Execution or proved the Will, the Defendant first took the Goods, by which he became Executor of his own Wrong, and so to have brought himself within this distinction, (which was the truth of this Case) and that would have put the mat­ter out of dispute, which not being done, he held the Plea to be good; and so prayed Iudgment for the Defendant.

The Court were of Opinion that prima facie this was a good Plea; for where a Man2 Sand. 28. confesses and avoids, he need not traverse, and here the Defendant had avoided his being chargeable as Executor de son tort, by saying that there was a rightful Executor who had administred the Testators whole E­state; but the Surmise of the Plaintiff and the Plea of the De­fendant being both in the2 Cro. 579. pl. 9. Sid. 341. 1 Sand. 338. affirmative no Issue can be joined thereon; and therefore the Defendant ought to have traversed that he was Executor, or ever administred as Executor, the ra­ther because his Plea gives no full Answer to the Charge in the Declaration, being charged as Executor, who pleads that another was Executor, and both these matters might be true, and yet the Defendant liable as Executor de son tort, which (notwith­standing Iniquum non est praesumendum) may be well intended here; and so Iudgment was given against the Defendant that this was no good Plea.

Adams versus Adams.

DEBT upon Bond to perform an Award,Award, Ex­ceptions thereunto overruled. so that it be made before or upon the 22d day of December, or to choose an Vmpire.

The Defendant pleads no Award made: The Plaintiff replies and sets forth an Award, and assigns a Breach: The Defen­dant demurrs.

1. That here is no good Award,Mod. Rep. 274. because the Arbitrators were to make it before or upon the 22d day of December, and if they could not agrée, to choose an Vmpire:2 Sand. 133. Now the Award set forth in the Replication was made by an Vmpire chosen after the 22d day of December, which the Arbitrators had not power by the Sub­mission to choose, Sed non allocatur, because they might have made their Award upon the 22d. of December, and there­fore could not choose an Vmpire till afterwards; for their Power was only determined as to the making an Award.

2.Antea. Because the Vmpire recites that the Parties submitting had bound themselves to stand to his Award which is not true, Sed non allocatur, because 'tis but Recital.

3. The Award is that the Defendant should pay the Plain­tiff two Sums at several times, and that several Releases shall be given presently, and so the Bond and the Mony would be discharged; and for that reason the Awarding the Release was void against the Plaintiff, and by consequence there is nothing on [Page 170] his side to be done; and the Court were all of Opinion that for this last reason the Award was not good.

Serjeant Baldwyn who was of Council for the Plaintiff, said that it was an Exception which he could not answer if true, but said that the Award was not that Releases should be given presently, but that the Mony should be paid and Releases given, by which it appears by the very Method and Order of the Award, that the general Releases were not to be given till after the Mony paid; and that being the Case the Court were clear of Opinion, that it was well enough; and so Iudgment was given for the Plain­tiff.

Brook versus Sir William Turner.

Feme Co­vert made a Will and disposed of her Estate, and good.IN a Prohibition to the Spiritual Court to prove the Will of Philippa Brooks by Sir William Turner her Executor.

A Tryal at the Barr was had, in which the Case was, viz. That James Phillips, by Will in Writing dated 24 Aprilis, 1671. inter alia gave to Philippa for Life, in lieu and full of her Dower, all his Houses in Three Crown Court in Southwark, purchased by him of one Mr. Keeling; another House in Southwark purchased of one Mr. Bowes, and all his Houses in New Fishstreet, Pud­ding-Lane, Buttolph Lane, Beer Lane, Duxfield Lane and Dow­gate London; and died.

That afterwards there being a Treaty of Marriage between the Plaintiff Mr. Brooks and Philippa Phillips, it was agréed that all the said Houses and Rents, and Profits thereof, and all Debts, Ready Mony, Iewels and other real and personal E­state whatsoever, or wherein Philippa, or any in Trust for her, were interessed or possessed, should at any time as well before as after the Marriage be disposed in such manner as should be agreed on between them.

And thereupon by Indenture tripartite between Mr. Brook of the first part, the said Philippa Phillips of the second part, and William Williams and Francis Gillow of the third part, reciting the said Will of James Phillips and the said Agréement, the said Philippa in consideration of a Shilling paid to her by Williams and Gillow did with the full and free Consent of the said Edward Brook the now Plaintiff, grant, bargain and sell to the said Wil­liams and Gillow all the said Houses devised by the last Will of the said James Phillips, in Trust that the said Trustees should per­mit her to receive and enjoy the whole Rents and Profits of all [Page 171] the Houses purchased of Mr. Keeling, and of all the Houses in Beer Lane, and of two of the Houses in Broadstreet in the possession of James and Worsley, and the Quarters Rent only due at Christ­mas then last past, and no more, saving to Philippa all former Rents and Arrears thereof to be received by her, and not by Mr. Brook, and to be imploied as therein after was mentioned.

And upon this farther Trust, that after Mr. Brooks death in case the said Philippa survived, that then the Trustées should permit Philippa and her Assigns from time to time to grant, sell and dispose of the rest of the Premisses, and all others where­of she was seised or possessed, as she should think fit; and also to receive, dispose of and enjoy all the Rents and Profits of the Premisses (not thereby appointed to be received by the Plain­tiff) for her only particular and separate use, and not for the use of the Plaintiff, without any account to be given for the same, and not to be accounted any part of Mr. Brook's Estate; and that the Acquittances of the said Philippa be good discharges against the Plaintiff; and the said Trustees to joyn with Philippa in the Sale and disposition of the Premisses.

And Philippa in farther consideration of the said Marriage agreed to pay to Mr. Brook on the day of Marriage 150 l. and to deliver him several Bonds and Securities for Mony in the said Indenture particularly named.

And the said Philippa in farther pursuance of the said Agree­ment, and in consideration of a Shilling paid to her by the said Trustees, did with the like assent assign to them all her Iewels, Rings, Mony, &c. and other her real and personal Estate, upon Trust that they should permit her to enjoy the same to her own separate and distinct use, and to dispose thereof from time to time as well before the said Marriage as afterwards, as she should think fit without any Accompt, and for want of such Limitation or Appointment, in Trust for her, her Executors, Administrators or Assigns; and the Plaintiff not to hinder or impeach the same, and not to be taken as any part of his Estate, or be subject to his Debts, Legacies or Engagements.

And the Plaintiff covenanted, that if the Marriage took effect, the Trustees should quietly enjoy the Premisses, and Philippa to dispose thereof without trouble or molestation by him, his Exe­cutors, &c. and that Philippa (notwithstanding the Marriage) should at any time either before or after, have liberty by Deed or Will in Writing by her published in the presence of two or more credible Witnesses, or otherwise howsoever, at her pleasure to give and dispose all her real and personal Estate, Goods, Chattels, &c. whereof she was possessed before the said intended Marriage, [Page 172] or at any time after, or any other person in Trust for her (except such part thereof as was thereby agreed to be paid to, and received by the Plaintiff) to such person or persons, and to such use and uses, intents and purposes as she should think fit, and that the Plaintiff should assent thereunto, and not impeach the same in Law or Equity.

The Marriage shortly afterwards took effect, and Philippa by Will in Writing gave all her Estate away in Legacies and Cha­ritable Vses, and she devised to the Plaintiff 20 l. to buy him Mourning, and gave to Sir William Turner the Defendant 100 l. and made him Executor; and she devised to Mr. Hays and to Mr. Grace 20 l. apiece, whom she made Overseers of her Will, and died. There was neither Date or Witnesses to this Will, save only the Month and Year of our Lord therein mentioned; and that this Will not being proved in the Spiritual Court, the Plaintiff moved for a Prohibition, and the Defendant took Issue upon the Suggestion.

In which Case these Points were resolved by the Court.

Mod. Rep. 211.1. If there be an Agreement before Marriage that the Wife may make a Will, if she do so, 'tis a good Will, unless the Husband disagreés; and his Consent shall be implyed till the con­trary appear. And the Law is the same though he knew not when she made the Will, which when made 'tis in this Case, as in others, ambulatory till the death of the Wife, and his dissent thereunto; but if after her death he doth consent he can never afterwards dissent, for then he might do it backwards and for­wards in infinitum.

2. If the Husband would not have such Will to stand he ought presently after the death of the Wife to shew his dis­sent.

3. If the Husband consent that his Wife shall make a Will, and accordingly she doth make such a Will and dieth, and if after her death he comes to the Executor named in the Will, and seems to approve her choice, by saying, He is glad that she had appointed so worthy a Person, and seemed to be satisfied in the main with the Will, and recommended a Coffin-maker to the Executor, and a Goldsmith for making the Rings, and a Herald Painter for making the Escutcheons, this is a good assent and makes it a good Will, though the Husband when he sees and reads the Will (being thereat displeased) opposes the Probate in the Spiritual Court by entring Caveats and the like; and such disagreément after the former assent will not hurt the Will, because such assent is good in Law, though he know not the particular Bequests in the Will.

[Page 173]4. When there is an express Agreement or Consent that a Woman may make a Will, a little proof will be sufficient to make out the continuance of that Consent after her death; and it will be needful on the other side to prove a Disagreement made in a solemn manner; and those things which prove a dissatisfacti­on on the Husbands part may not prove a disagreement, because the one is to be more formal than the other; for if the Husband should say that he hoped to set aside the Will, or by a Suit or otherwise to bring the Executor to terms, this is not a dissent.

Sir Robert Howard versus the Queens Trustees and the Attorney General. In the Dutchy.

UPON a Bill exhibited in the Dutchy Court; Jones 126. The Que­stion was, whether the Stewardship of a Mannor was grantable in Reversion or not?

The Attorny General and the Queens Council, Butler and Hanmore, held that it was not: But Serjeant Pemberton and Mr. Thursby would have argued to the contrary; for they said it might be granted in Fée, or for any less Estate, and so in re­version, for it may be executed by Deputy.

But this Question arising upon a Plea and Demurrer the De­bate thereof was respited till the hearing of the Cause, which was the usual Practice in Chancery, as North Chief Iustice, who assisted the Chancellor of the Dutchy, informed the Court.

And he said that in all Courts of Equity the usual course was; when a Bill is exhibited to have Mony decreed due on a Bond up­on a Suggestion that the Bond is lost; there must be Oath made of it, for otherwise the Cause is properly triable at the Common Law; and such course is to be observed in all the like Cases, where the Plaintiff by surmise of the loss of a Déed draws the Defendant into Equity; but if the Case be proper in its own na­ture for a Court of Conscience, and in case where the Déed is not lost, the Remedy desired in Chancery could not be obtained upon a Trial at Law, there though it be alledged that the Déed is lost, Oath need not be made of it; as if there be a Déed in which there is a Covenant for farther Assurance, and the Party comes in E­quity, and prays the thing to be done in specie, there is no need of an Oath of the loss of such Deed, because if it 'tis not lost the Party could not at Law have the thing for which he prayed Re­lief, for he could only recover Damages.

Note also, That he said in the Case of one Oldfeild that it was the constant practise where a Bill is exhibited in Equity to foreclose the right of Redemption, if the Mortgagor be fore­closed he pays no Costs; and though it was urged for him that he should pay no Costs in this Case, because the Mortgagee was dead, and the Heir within Age, and the Mony could not safely be paid without a Decree, yet it being necessary for him to come into Equity, he must pay for that necessity.

Note also, the difference between a Mortgage in Fee, and for Years; for if 'tis in Fee, the Mortgagor cannot have a Re­conveyance upon payment of the Mony, till the Heir comes of Age.

It was agreed in this Case by the Court, that if there be Tenant for Life, Remainder in Fee, and they joyn in a Deed purporting an absolute Sale, if it be proved to be but a Mort­gage he shall have his Estate for Life again, paying pro rata, and according to his Estate; and so it shall be in the Case between Tenant in Dower and the Heir.

Loyd versus Langford.

Lessee for Years makes an Assignment of his Term where Debt lies upon the Con­tract, and where not.IN a special Verdict the Case was: Viz. A. being Tenant in Fee of Lands, demised the same to B. for seven years, B. re-demises the same Lands to A. for the said Term of seven years, reserving 20 l. Rent per Annum. A. dyes, his Wife en­ters as Guardian to the Heir of A. her Son, and receives the Profits. B. brings Debt against her as Executrix de son tort, in the debet and detinet, and whether this Action would lie or not was the Question.

Serjeant Baldwyn, who argued for the Plaintiff, held that it did lie, for though the Rent in this Case reserved did not attend the Reversion, because the Lessee had assigned over all his Term, yet an Action of Debt will lie for that Rent upon the Contract, Cro. Jac. 487. Witton versus Bye 45 Ed. 3. 8. 20 E. 4 13. Cove­venant will lie upon the Words Yeilding and Paying.

If then here is a good Rent reserved, the Wife who receives the Profits, becomes Executrix de son tort, and so is lyable to the payment.

It hath been held there cannot be an Executor de son tort of a Term, but the Modern Opinions are otherwise; as it was held in the Case of Porter and Sweetman, Trin. 1653. in B. R. And [Page 175] that an Action of Debt will lie against him. Indeed such an Executor cannot be of a Term in futuro, and that is the Re­solution in Kenrick and Burgesses Case, Moor Rep. Where in Ejectment upon Not Guilty pleaded, it appeared that one Oke­ham had a Lease for years of the Lands in question, who dyed Intestate, which Lease his Wife assigned by parol to Burgess; and then she takes out Letters of Administration, and assigns it again to Kenrick, who by the Opinion of the Court had the best Title.

But if one enter as Executor de son tort, and sell Goods, the Sale is good; which was not so in this Case, because there was a Term in Reversion, whereof no Entry could be made, for which reason there could be no Executor de son tort to that, and therefore the Sale to Burgess before the Administration, was held void.

And that there may be an Executor de son tort of a Term, there was a late Case adjudged in Trin. 22 Car. 2. between Ste­vens and Carr, which was, Lessee for years rendring Rent dies Intestate, his Wife takes out Letters of Administration, and af­terwards Marries a second Husband, the Wife dies, and the Husband continues in Possession and receives the Profits: It was agreed, that for the Profits received he was answerable as Executor de son tort, and the Book of 10 H. 11. was cited as an authority to prove it.

Pemberton Serjeant for the Defendant,Ex parte Def. would not undertake to answer these Points which were argued on the other side, but admitted them to be plain against him, for he did not doubt but that Debt would lie upon the Contract, where the whole Term was assigned, and that there may be an Executor de son tort of a Term; but he said, that which was the principal point in the Case was not stirred: The question was, whether an Action of Debt will lie against the Defendant as Executor de son tort where there is no Term at all; for 'tis plain there was none in being in this Case, because when the Lessee Re-demised his whole Term to the Lessor, that was a Surrender in Law, and as fully as if it had been actually surrendred; and therefore this was quite different from the Case, where Lessee for years makes an Assignment of his whole Term to a Stranger, Debt will lie upon the Contract there, because an Interest passes to him in Reversion, and as to this purpose a Term is in esse by the Contract of the Parties, and so it would here against the first Lessor, who was Lessee upon the Re-demise; but now because of the Surrender, the Heir is intituled to enter, and the Mo­ther, [Page 176] who is the Defendant, enters in his Right as Guardian, which she may lawfully do.

If therefore Debt only lies upon the Contract of the Testa­tor, as in truth it doth where the whole Term is gone, the Plain­tiff cannot charge any one as Executor de son tort in the debet and detinet.

And the whole Term is gon here by the Re-demise, which is an absolute Surrender, and not upon Condition, for in such Case the Surrenderor might have entred for non-performance, and so it might have been revived: And of this Opinion was the whole Court in both points, and would not hear any far­ther Argument in the Case; the Plaintiff having no remedy at Law, the Court told him that he might seek for relief in Chancery, if he thought fit.

Harman's Case.

IN Covenant the breach assigned was, that the Defendant did not repair; He pleads generally quod reparavit & de hoc ponit se super patriam, this was held good after a Ver­dict.

Quadring versus Downs, & al'.

Wardship cannot be where there is no de­scent.IN a Writ of right of Ward, the Case was, Viz Sir Wil­liam Quadring being seised of Lands in Fee, by Deed and Fine settles them upon his Son William and his Wife for their Lives, the Remainder to the second Son in Tail, with divers Remainders over. The Grandfather dyes, the Father and Mo­ther dyes, the eldest Son dyes without Issue, and so the Land came to the second Son.

The Plaintiff intitles himself as Guardian in Socage to the Wardship both of the Person and Lands of the Infant, whom the Defendant detained, and Serjeant Newdigate for him demurred, because where there is no descent there can be no Wardship, for the second Son is in by purchase and not by de­scent, for here is no mention of the Reversion in Fee, and there­fore it may be intended that it was conveyed away; and besides, if it should be intended to continue to Sir William Quadring the Grandfather after this Settlement, yet it cannot be thought to [Page 177] descend to the Ward, because 'tis not said who was Heir; for though it be said that the Father of the Ward was Son to Sir William, yet 'tis not said Son and Heir, and of that Opinion was the whole Court in both points; for there must be a de­scent or else there can be no Wardship; and it doth not appear that any descent was here, because 'tis not said that the Rever­sion did descend, nor who was Heir to Sir William, which the Plaintiff perceiving, prayed leave to amend, and it was granted.

In this Case it was said at the Bar, that one might be a Ward in Socage, though he be in by Purchase, for the Guar­dian is to have no profit, but is only a Curator, to do all for the benefit of the Ward; and so there need be no descent, as is necessary in the Case of a Ward in Chivalry; for that be­ing in respect of the Tenure, the Guardian is to have profit.

The Lord Chief Iustice North said,Nota. he knew where there was some doubt of the sufficiency of the Guardian in Socage, that the Court of Chancery made him give good Security.

Harding versus Ferne.

IN an Action of Assault, Battery and Imprisonment, Antea Ano­nymus. 'till the Plaintiff had paid 11 l. 10 s. The Defendant pleads and justifies by reason of an Execution, and a Warrant thereupon for 11 l. and doth not mention the 10 s. And upon demurrer for this Cause, Iudgment was given for the Plaintiff upon the first opening, because it appeared the Defendant took more than was warranted by the Execution.

Ellis versus Yarborough Sheriff of Yorkshire.

IN an Action of Escape the Plaintiff sets forth that the De­fendant Arrested a Man upon a Latitat directed to him at the Suit of the Plaintiff,Case lies not against the Sheriff though he take insuffi­cient Bail, but must be amerced if the Defen­dants do not appear. Mod. Rep. 227. Antea. and afterwards suffered him to go at large.

The Defendant pleads the Statute of 23 H. 6. cap. 10. that the took good and sufficient Bail within the County according to the Statute.

The Plaintiff replies, that he let him go at large, abs (que) hoc that he took good and sufficient Bail within the County. To this the Defendant demurred.

This Case was argued this Term by Serjeant Skipwith and Baldwyn for the Defendant, and by Serjeant Barrel and George Strode for the Plaintiff; and in their Arguments for the Defendant it was said,Ex parte Def. Sid. 23. 2 Sand. 60. Cro. Eliz. 624. That the Plaintiff in this case can­not maintain an Action of Escape, for where the Sheriff takes Bail, no Escape will lie against him.

1. Because he is compellable by the Statute to let the Defen­dant to Bail.

2. If he have not the Defendant ready at the return of the Writ, he may be amerced, which is the proper remedy.

3. This precept of letting the Defendant to Bail, being by Act of Parliament, is intended by the direction of the Plaintiff himself, because all people are Parties to the making of an Act of Parliament.

Many Actions have been brought against Sheriffs, upon Sug­gestions that no Bail have been taken,Antea, Page and Tulse. and for which an Acti­on on the Case will lie; but where there is Bail taken, the Sheriff hath done his duty which he is commanded to do by the Statute; and if the Defendant doth not appear, the She­riff is to be amerced, and he is the proper Iudge of the Bail; the Plaintiff is no ways concerned therein whether good or bad.

At the Common Law the Defendant was to continue in Pri­son till he had satisfied the Plaintiff, to whom no benefit was intended by this Statute, but rather an ease to the Defendant, that he should be from thence discharged, giving good Bail; and the reason why the Statute mentions such Bail is in fa­vour of the Sheriff also,Cro Eliz. 672. to secure him from Amerciaments; the Bail being then for his Indempnity, he is the sole Iudge both of their persons, number, and ability, for the Statute requires two Sureties, and that they shall be Men within the County; yet if there is but one, and he not of the County, and if the Bond taken by the Sheriff for the appearance of the Defendant be but 40 l. and the Debt due to the Plaintiff be 400 l. 'tis well enough,2 Cro. 286. because the Statute doth not restrain him to any Sum or Sureties, for he may take what Sum he please to force the De­fendant to appear.

And when this Security is taken, the Sheriff is neither com­pellable to assign it to the Plaintiff, or he to take it. Tis true, he doth usually assign it, but that is to discharge himself of the Amerciaments, which is the way that the Plaintiff should pursue where he doth imagine the Bail to be insufficient.

If therefore this Statute was made for the benefit and ease of the Defendant, the Security therein directed is for the in­dempnity of the Sheriff; and therefore if no Action will lie against him for taking of insufficient Bail, 'tis as reasonable that no Acti­on should lie against him when he hath taken Bail, which he is compelled to do, and so the Traverse in this Case is immate­rial, and Iudgment ought to be given for the Defendant.

On the other side it was argued,Ex parte Quer. That an Action of Escape would lye against the Sheriff, if he did not take good Bail, which matter may be traversed; and though here if the Defendant had rejoyned, the Issue had been, whether sufficient Bail within the County or not, yet that part of the Issue had not been material, for the only matter had rested upon the sufficiency or insuffi­ciency of the Bail in general. Like a Case adjudged in Mich. 14 Car. 2. in B. R. where a Woman had power given her by her Husband to make a Will in the presence of two credible Witnes­ses: It was pleaded that she made a Will in the presence of A. and B. credible Witnesses, and Issue was thereupon joyned,Antea. and it was found to be made in the presence of C. and D. who were credible Witnesses, and this was held to be good, because the substance was found, Viz. That it was made in the presence of two credible Witnesses.

The Defendant therefore here ought to have taken good and sufficient Bail to bring himself within the Statute, and that is traversable, and the Pleadings are well enough, for if there be good Bail, 'tis not material in what County they live.

Vpon the first Argument of this Case, the Lord Chief Iu­stice inclined that an Action of Escape did lie at the Common Law against the Sheriff; for it was clear that he was to keep the Party arrested in Prison 'till the Debt was satisfied, and that if he had gone at large, it had been an Escape; the Sheriff then hath no excuse but by this Statute, and to entitle himself to any benefit thereby, he must pursue the very directions there­in prescribed, and therefore ought to take good and sufficient Bail, for otherwise the Statute would be eluded, if it be left in his power to take what Bail he pleases; and he was of Opini­on, that the Plaintiff had an Interest in the Security, and therefore the Sheriff was lyable, if it was not good when first taken, but not if by any accident afterwards the Bail miscar­ry or become insolvent.

And Iustice Wyndham was of the same Opinion, that the Sheriff was lyable; he differed only as to the manner of the [Page 180] Action, which he held should be a special Action on the Case, set­ting forth the whole matter, and alledging that the Defendant did not take sufficient Bail.

Iustice Atkyns said, the Case depends upon the construction of that23 H. 6. cap. 10. Statute, which is very obscure, and the Opinions vari­ous which have been upon it; 'tis plain the Sheriff is compel­lable to take Bail, and that an Action lies against him if he refuses such as are sufficient when tendred; but the question was now whether it will lie against him fortaking those who are insufficient; and as to that he said that many Authorities were in our Books, that the taking of Bail is left to the Sheriffs dis­cretion, and he is thereby to provide for his own indempnity; for he must return a Cepi Corpus upon the Writ, he cannot return that he let him to Bail according to the Statute, and there­fore inclined that the Action did not lie.

Scroggs Iustice contra. He said that this Statute designed the benefit of the Creditor, that he might either get the Sheriff amer­ced or have an Action, in both which Cases he might indempni­fie himself by the Security he had taken. Tis true, he may let the Party to Bail, but 'tis sub modo, it must be upon good Bail; and if the Sheriff be Iudge of the Security, 'tis an Ar­gument that he is lyable, for if he was not in danger, he need not take Security.

But afterwards upon the second Argument, the Chief Iustice and the whole Court were of Opinion, that Iudgment should be given for the Defendant.

North Chief Iustice. The Common Law was very rigorous as to the execution of Process; the Capias was ita quod habeas the Body at the day of the Return, and if the Sheriff had arrested one, it had been an Escape to let him go. Before the making of this Statute the Sheriff usually took Sureties for the appear­ance of the Prisoner, and by this means used great Extortion and took great Sums of Mony; to prevent which Mischiefs this Statute was made and so designed.

1. For the ease of the Prisoner, the Sheriff being now com­pellable to take Security, which he was not obliged to do before.

2. To prevent Extortion, and therefore directs that a Bond shall be taken in such manner and with such conditions as is there­in mentioned.

But the Plaintiff since the Statute is much in the same conditi­on [Page 181] as before, for he is to make the same Return of Cepi Corpus: 'Tis true, he may now let him go upon Bail, but as to the Credi­tor he is to have him in Court to answer his Suit as before, and shall be amerced if he doth not appear at the Return of the Writ, so that tho' this Statute be an ease to the Defendant, yet 'tis a bur­then to the Sheriff, who runs a greater hazard since the making of this Act than before; because then he might keep him in prison till the Debt was satisfied, but now he is obliged to let him at large upon Bail, from whom he is directed to take a Bond, which he may keep in his own hands to indempnifie himself: The Court can only amerce him, if the Defendant do not appear at the Return of the Process, and 'tis not material to the party whether the Sheriff take one or more Security, that being in his discretion; some he must take, for otherwise 'tis directly in opposition to the Statute; neither is it material to the party whether they are such as are sufficient, for if they are not, and the Defendant is thereupon discharged, this will not amount to an Escape; because nothing is done but what is pursuant to the Statute, and therefore he is no otherwise chargeable than by Amerciaments.

The Statute was made and intended for the benefit of the Deb­tor, not of the Creditor, and there might be some colour for the Action if the Sheriff might Return that he let him to Bail, for then it might have been necessary to have alledged the sufficiency of them, which might have been traversed; but now he must pursue the sub­stance of the Statute so far as to take Bail; he is the proper Iudge of the sufficiency, and when the Bail is taken he must return a Cepi Corpus, so that he is only to be amerced till he bring in the Body, but an Escape will not lie against him.

Long's Case.

ONE Long was arrested in the Pallace-Yard, Priviledge of an At­torny. not far distant from the Hall Gate, the Court being then sitting, and being an Attorny of this Court, he, together with the Officer, was brought into Court, and the Officer was committed to the Fleet, that he might learn to know his distance; and because the Plaintiff was an Attorny of the Court of Kings-Bench, who informed this Court, that his cause of Action was for 200 l. therefore the Court ordered that another of the Sheriffs Bayliffs should take charge of the Pri­soner, and that Mr. Robinson the Chief Prothonotary should go along with him to the Court of Kings-Bench, which was done, and that Court being informed how the Case was, discharged the De­fendant upon filing of common Bail.

The Writ upon which this Long was arrested was an At­tachment of Priviledge, which the Court supposed to be made on purpose to oust him of his Priviledge; for there was ano­ther Writ against him at the Sheriffs Office at the Suit of ano­ther person.

The Countess of Northumberland's Case.

Knights must be of the Jury where a Peer is con­cerned.ADjudged that where a Péer is Party either Plaintiff or De­fendant, two or more Knights must be returned of the Iury; and it was said that in Cumberland there was but one Free-holder who was a Knight, besides Sir Richard Stote, a Serjeant at Law; and the Court were of Opinion that rather than there should be a failure of Iustice a Serjeant of Law ought to be returned a Iury­man, for his Priviledge would not extend to a Case of necessity.

Bell versus Knight, In Banco Regis.

Smiths For­ges are chargeable with the Duty of Fire-hearthIN an Action of Trover; Vpon Not Guilty pleaded the Iury found a special Verdict, in which the Point was upon the Construction of the Statute of 14 Car. 2. c. 10. for the establishing of an additional Revenue upon the King, his Heirs and Succes­sors for the better support of his and their Crown and Dignity, by which it is Enacted, That for every Fire-Hearth and Stove in every House the yearly Sum of 2 s. shall be paid to the King, other than such as in the said Act are exempted: Then comes a Proviso which saith, That this Act shall not extend to charge any Blowing House, Stamp, Furnace or Kilne, &c. And the Question now was, whether a Smiths Forge shall be charged with this Duty.

Winnington Sollicitor General conceived that all Fire-Hearths are liable within the Body of the Act, and there is nothing to exempt them but what is in the Exception; and that a Smiths Forge cannot be called a Blowing House within the intent of the Act, notwithstanding the Iury have found that Smiths use Bellows to blow their Forges: For by Blowing Houses such Houses are meant as are in Staffordshire and Suffolk for the making of Iron, these were the Blowing-Houses intended by the Parliament to be excepted, and no other; for if Smiths Forges had béen meant thereby, those would have been inserted in the Proviso as well as the other things therein mentioned.

Words are to be taken in a common Vnderstanding; for if a Traveller should enquire for a Blowing House, no Body would send him to a Smiths Forge.

By the Opinion of the whole Court,Curia. it was adjudged upon the first Argument that Smiths Forges are liable to this Duty; and so the Sollicitor said it had been lately adjudged in this Court by the Opinion of Twisden, Wyld and Rainsford; and that my Lord Chief Iustice Hale was of the same Opinion; but Twisden said that neither the Chief Iustice or himself gave any Iudgment upon the Merits, but upon a Point in Pleading.

Stroud versus the Bishop of Bath and Wells, and Sir George Horner. In Communi Banco.

IN a Quare Impedit the Plaintiff alledges that Sir George Horner was seised in Feé of the Mannor of Dowling, Traverse shall not be upon a Tra­verse, &c. Mod. Rep. 230. to which the Advowson was appendant, and that being so seised he presented one Harding, and then granted the next Avoidance to the Plaintiff.

That the Church became void by the death of the said Harding, and that now it belonged to him to present.

The Bishop pleads that he claimed nothing, but as Ordinary; and the Incumbent pleads that at the time of the bringing of this Writ the Church was full by the Collation of the Bishop upon a Lapse.

The Plaintiff replies that Sir George Horner being seised in Fee of the said Mannor of Dowling, to which the Advowson of the Church was appendant, did tali die & anno apud, &c. pre­sent him as Clerk absque hoc that the Church was full by Col­lation.

The Defendant rejoyns protestando that the Church was full tali die; and for Plea saith that it was full upon the Collation of the Bishop, absque hoc that Sir George Horner did tali die & anno, &c. present the Plaintiff as his Clerk, and so traverseth the In­ducement which the Plaintiff had made to his Traverse; and to this the Plaintiff demurred.

And Serjeant George Strode took three Exceptions to this Rejoinder.Ex parte Quer.

1. That when the Defendant pleads a Matter in Barr, and the Plaintiff hath taken a Traverse upon that, the Defendant should then take Issue upon that Travers, and so have main­tained [Page 184] his Barr,Vaugh. 62. 1 Sand. 21, 22. from which he had departed here by traversing another Matter.

In a Quare Impedit the Plaintiff declares that Sir Thomas Chichely granted an Advowson to one East and another in Feé, to the Vse of the Wife of the Plaintiff for her Iointure, and that she ought to present.

The Defendant pleads that he is Parson imparsonee ex prae­sentatione Regis, for that Sir Thomas Chicheley died seised as aforesaid of the Mannor and Advowson held in Capite by Knights Service, which descended to his Son an Infant, and by Office found of the Tenure and descent the King was seised, and pre­sented him, absque hoc that Sir Thomas granted to East.

The Plaintiff replies, Non habetur tale Recordum de inqui­sitione; and upon Demurrer it was held that this Traverse of the Inquisition was not good;Hob. 104. 1 Inst. 282. b. Vaugh. 62. for there shall not be a Traverse upon a Traverse but where the Traverse in the Barr is mate­rial to the Title of the Plaintiff, and in such Case he is bound up to it, Cro Car. 104, 105.

Antea. Yelv. 122.2. In his Traverse he hath made the Time parcel of the Issue, viz. absque hoc that tali die & anno praesentavit, whereas it should have been modo & forma only, and so is the Case of Lane and Alexander, 2 Cro. 202. where the Defendant intituled himself by Copy of Court of Roll, 44 Eliz. The Plaintiff replies that a Copy was granted to him 1 Junii 43 Eliz. The Defendant maintained his Bar and traverseth the Grant 1 Junii modo & forma; and upon a Demurrer it was said that the Rejoynder was not good, because the day and year of granting of the Copy was not material, if it was granted before the Defendant had his Copy; and so the Traverse ought to have been absque hoc that the Queen granted modo & forma.

1 Sand. 14. 2 Sand. 295. Cro Car. 501.But it was adjudged that the day ought not to be made par­cel of the Issue, and the traversing of it when it ought not so to be, makes it Substance and not Form, so as to be aided by the Statute of 27 Eliz.

3. As the Defendant hath joyned they can never come to an Issue, for he concludes his Traverse Et hoc paratus est verificare, unde petit Judicium, whereas he should have concluded to the Country.

Ex parte Def. Barton Serjeant; admitting the Pleadings are not good, yet if the Plaintiffs Count is so likewise, he cannot have Iudgment; and that it was so, he said appears in that the Plaintiff had not set forth a sufficient Title; for he hath alledged that Sir George Horner was seised in Fee, and presented the Plaintiff, who was instituted [Page 185] and inducted,Old Nat. Br. 25. 1 Inst. 249. but doth not say that the Presentation was tem­pore pacis, and therefore it shall be presumed most strongly against himself to be tempore belli, and a Presentation must be laid tempore pacis, and so is the Writ of Assise of Darrein Present­ment, F. N. B. 31.

The Court held that the Pleadings were not good, and that the Count was good; for 'tis true, if a Man count that he and his Ancestors were seised in Fee of an Advowson, but declares of no Presentation made by him or them; or if he declare of a Pre­sentation without an Estate, in both Cases it is naught, and good Cause of Demurrer;Vaugh. 57. Hob. 101. but here the Count is both of an Estate and a Presentation. And this difference was taken, if a Man gets a Fée by Presentation, which is his Title, he must al­ledge it to be tempore pacis; but if it be in pursuance of a Right, as if an Advowson be appendant to a Mannor, and he who hath Right to the Mannor, presents, such Presentation is good in time of War; and so Iudgment was given for the Plaintiff.

Stevens versus Austin.

ADjudged, that if a Man hath Common for a certain number of Cattle belonging to a Yard Land, he need not say Le­vant upon the Yard Land; sed aliter, if it were for a Common sans number.

The Master, Warden and Company of Ironmongers versus Naylor, and others, Defendants. In B. R.

IN Trespass. The Iury found a special Verdict;Jones 85. 1 Ventris 311. they find seve­ral Acts of Parliament, viz. 14 Car. 2. cap. 10.15 Car. 2. cap. 13. and another Act for the better direction of the collecting of the Duty arising by Hearth-Mony by Officers to be appointed by the King; and this was the Act of 16 Car. 2. cap. 3. which provides, That if the Party refuses to pay the Duty by the space of an hour, that then the Officers with the Constable may distrain.

They find that the Company was seised in Fée of five Messuages in which were 35 Fire Hearths in the Month of April, 1673. And that the Company did never finish these Messuages, and that from the time of the building they stood all void, and unoccu­pied by any Tenant or Tenants whatsoever.

Then they find that the Collectors were lawfully authorised, and that such a day they demanded the Duty for the Fire-Hearths in each of the said Messuages, which they also demanded of the Com­pany, and which they refused to pay, and thereupon they took the distress and kept it till the Company paid the said Duty, and so make a general Conclusion, &c.

The Question was, whether the Owner of a new House unin­habited from the time of the building thereof ought to pay this Duty during all that time?

Mr. Pollexfen and Mr. Sympson argued that they shall not be chargeable with this Duty; their general Reason was, because no Duty should arise to the King without some benefit to the Subject.

And as to that it was said, that in this Case both the Re­venue of the Crown and the Property of the Subject are con­cerned, from which, as from a Root, all these Impositions arise to sustain the publique Charge. And therefore

It hath been the way of Iudges in the Interpretations of Statutes, not only to consider the benefit of the Crown, but to regard what is convenient for the Subject.

There are two Reasons for Impositions.

1. Such as are Customs, viz. Tunnage and Poundage and private Tolls, which come in lieu of other things, and so are quid pro quo.

2. Subsidies or Grants from the People, which naturally arise in some proportion from a benefit to the Subject.

And under the last of these Reasons falls the present Duty given by the Act of 14 Car. only to proportion the Revenue to the publique Charge of the Crown; and therefore 'tis not to be thought that the Parliament ever intended a Duty to the King where the Subject had no benefit, for ex nihilo nihil fit; and how can it be thought that a Duty should be paid before the Subject hath any Rent, which is the Mother of the Duty; for if a Man expends 1000 l. in building, which is all he is worth, and the Houses should happen not to be let, how can he then raise such a Sum as must be paid to the King? And 'tis an Objection of no weight to say, if this Duty must not be paid till the Houses are let, then the Revenue of the King depends upon a Contingency; because all Duties which come to the Crown do depend upon such.

The next thing to be considered is the Act it self, and as to that,

[Page 187] 1. It must be taken as an Act which gives a new Duty to the Crown, and thereupon such Construction ought to be made that the Subjects Estate be not charged further than the Words will bear; and for that reason it is to be taken in an ordinary sense, and not to be strained, though it had been in the Case of an old Duty; and for that the7 Co. 21. Lord Anderson's Case is a good Autho­rity, viz. The Statute of 33 H. 8. cap. 30. makes all Mannors (which descend to any Heir whose Ancestor was indebted to the King by Judgment, Recognisance, Obligation or other Specialty) chargeable for payment of the Debt. Tenant in Tail is bound in a Recognizance to S. who is attainted; then Tenant in Tail dies and his Issue aliens bona fide, the King cannot extend the Lands so sold, because the Act shall not be construed to mean all Recog­nizances for the Kings Debts though the Words are general enough; and though 'tis not said which way the Debts shall come to the King, either by Forfeiture, Attainder, &c. yet they shall be taken in an ordinary sense, viz. such debts as were due to the King originally; for which reason it has been always held where an Act gives any thing to the King and lays a Charge upon the Subject, in such Case it ought to have a moderate construction.

And that this Duty is a Gift cannot be denied, for 'tis called so in the very Act, therefore such ought the Construction to be, and the rather because it is more for the Kings Honour it should be so; and both in this Case as well as in Constructions of his Grants the Law hath more regard for his Honour than for his Profit.

2. This being so called, a Duty or Tax by the very Words of the Act, doth in the natural sense import a proportion out of that in which the Subject hath a benefit; and it will be scarce found that there hath been a general Tax given to the King where the Subject has rather received a loss than any profit out of the thing taxed, because it would be very hard to pay where a Man cannot receive.

In the Case of Tunnage and Poundage provision is made that the Party shall have Allowance if the Goods be lost by Pyracy, which was mentioned to shew how unlikely it was that the Parliament should intend a Duty where the Subject had a loss.

Ever since the making the Statute of 43 Eliz. cap. 2. Houses that lay void and untenanted have neither paid to Church or Poor, which also shews how the Vsage hath beén in Cases almost of the like nature.

The next thing considered were the Clauses in this Act of 14 Car. 2. cap. 10.

[Page 188] 1. The first Clause gives a Duty, viz. That every Chimny and Stove shall pay 2 s.

2. The next Clause is to bring this Duty into a way of Charge, viz. That every Owner or Occupier shall give unto the Constable an accompt of the number of Hearths in Writing, and the Consta­bles to transmit such Accompts to the Sessions, there to be enrolled by the Clerk of the Peace, and a Duplicate to be sent into the Exchequer.

From which it is to be observed that where mention is made of bringing this Duty into a Charge, both Owners and Occu­piers are named, but the Owner is not named in any place where the payment of the Duty is mentioned, but the Occupier only; so that from the very intent and reason of the Act he cannot be chargeable.

The Accompt thus transmitted is to charge the Inheritance, and therefore it concerns the Owner to look after the Charge; but for empty Houses he cannot be charged, because the Act takes no notice of them in the Clause of Payment, but are purpose­ly omitted that being laid on the Occupier, and this appears by the Proviso which is strongly penned for the Subject.

Viz. Provided that the Payments and Duties hereby charged shall be charged only upon the Occupier for the time being, &c. and not on the Land-Lord who lett and demised the same; so that by the Body of the Act every House is charged, which being general might have given some colour to charge the Owner, but by the Proviso the Payment is restrained to the Occupier, and if there be no such, there shall be no Payment.

It was said that it cannot be insisted upon that an Owner is an Occupier, because the legal acceptance of the Word Occupation doth only intend an actual Possession and not a Possession in Law, and such is the meaning of the Statute by charging the Occu­pier for the time being.

If therefore the Proviso extends to Cases where Tenants run away and pay no Rent, (as it certainly doth) because there is no Occupier then in being; what difference can there be between that and this Case where the Land-Lord in both hath no Rent? for if he shall not pay where he cannot receive Rent, why should he pay where he hath none to receive?

And that this was the meaning of the Parliament may fur­ther appear by a Clause in the Act of 16 Car. 2. cap. 3. made for collecting this Duty by Officers appointed by the King, which doth not inlarge the former Statutes, and by which 'tis En­acted, That if any Occupier shall leave his House before any of the half yearly Feasts, whereon this Duty is appointed to be paid, [Page 189] that the next Occupier shall be chargeable with the same for the said half year.

Which Clause had been altogether vain and of no use, if empty Houses had been chargeable with this Duty; for to what purpose was it to charge a succeeding Occupier when the House it self, though untenanted, was chargeable before?

In this Act also, which supplies the defects of the former, this Duty is made payable unto the Officer upon demand at the House where the same shall arise and grow due, and that in case of re­fusal by the space of an hour the Officer may distrein, which shews a Demand must be where there may be a Refusal, and no Re­fusal can be where there is no Occupier.

There is also another Clause which mentions both Owner and Occupier in this Act, and which saith, That no Proprietor, Owner or Occupier, shall be molested or charged, unless within two years after the Duty accrewed; so that where-ever a charge is laid, or an ease is given to the Subject, the Word Occupier and sometimes both Occupier and Owner promiscuoslly are used; but where a payment is to be made, the Owner is never men­tioned, and if so, nothing shall be intended within either of the Statutes, to enlarge this Duty upon the Subject, beyond the Words and plain meaning thereof.

2. There is another Point in this Case which concerns the King and all the People of England, that is, whether the Defen­dant here can be charged with a Distress (supposing this Duty is to be paid to the King) before any account of these Hearths is transmitted into the Exchequer, which first ought to be done; or otherwise the consequence will be, that the Officer may demand and take as much as he will at his pleasure, and the King may be likewise prejudiced in his Revenue; for as the Collector may have from the Subject more than he ought, and more than he is empowered to take by the Law, so he may pay the King less.

The Act directs, That an Account shall be taken by the Of­ficers, and examined by the Constables; then to be transmitted to the Sessions, there to be enrolled, and from thence sent into the Exchequer; now what occasion was there of all this So­lempnity, if that the King was entituled to a Distress upon a bare refusal?

This being a Rent Charge upon a Mans Inheritance, the King shall not be entituled to it but by matter of Record; for he cannot take or part with any thing, neither can he have any Estate or Profit rendered him out of another Mans Estate, but by matter of Record; so that it seems by the Act that this ac­compt is necessary to be transmitted into the Exchequer; and [Page 190] that the King is not entituled to a Distress for this Duty un­til that be actually done, which is not only matter of Informa­tion to the Crown, but in some measure intitles him to it, because there is a Penalty of five pounds laid upon the Officer, who shall neglect to bring in such accompt, which shews that the Subject ought not to be charged before; for which reasons Iudg­ment was prayed for the Plaintiff.

Ex parte Def.But on the other side it was argued by Mr. Holt and the At­torny General, that empty Houses should pay this Duty: For the Attorny General said, that the Words in the Act were so express, that he was of Opinion that the very reading of them would clear the Point in question.

In their Arguments two things were considered upon the Statute of 14 Car. 2.

1. First the general Clause which gives the Duty in the Body of the Act.

2. The discharge in the Proviso.

And if this be in the Body of the Act, and not excepted in the Proviso, then the Duty is to be paid; and as to that it was said, that this Duty was given in general Words, by which it appears, that there was a design and intent to charge empty Houses, for every dwelling House, Edifice, or House whatsoever is to pay this Duty; and that if every House, why not an empty House?

'Tis true, a Dwelling House is not a House wherein there hath not been an Inhabitant, but wherein some body doth actually live; and if a Man furnishes a House very well, if 'tis not inhabited, it is notwithstanding an empty House, and such a House as to some purposes in the Law is not a dwelling House; for 'tis not a Mansion House, so as to make it Burglary for the break­ing of it open.

By the second Clause, Every Owner or Occupier is to sub­scribe the Account to be sent into the Exchequer, by which it appears that those Words Owner and Occupier are not there used in a different sense, for if the Occupier were only lyable, the Owner need not look after the signing the accompt of every Hearth.

The third Clause takes notice, That if it should happen there be no Occupier, then the Officer may go into the empty House to examine if the account given him be true; now if an account is to be taken of such Houses as are charged by this Act, and an account is directed to be taken of empty Houses, then such empty Houses must be charged; and this seemed to them to be [Page 191] the intent and meaning of the Parliament, for there being a Return to be made of empty Houses, if such had not been intend­ed to be charged, they would have directed a Return also to have been made of the non-inhabitancy.

And therefore they thought that something more than an Oc­cupier was here meant, for otherwise the Word Owner had not been put in; the meaning of which must be that dwelling Hou­ses come within the charge of Occupiers, and empty Houses within the charge of the Owners.

Then as to the Proviso, That the Duty hereby arising shall be charged only upon the Occupiers and Dwellers of such Houses, their Executors and Administrators, that can in no sort extend to discharge an empty House, because 'tis not the subject matter of the Proviso; for the design and purpose of it was not to discharge the Duty, but to transfer the charge upon the Tenant where the House was inhabited; for if a contrary con­struction should be made, then no Duty should be paid at all by the Owner himself if he should live in his own House.

In the Case of a Modus decimandi 'tis payable by the Occu­pier and Possessor of the House, and the Landlord is never charged but where there is no Occupier.

As to the Objection, That 'tis hard to pay a Duty where a Man has no Profit; it was answered, That the Act took care that Men should not stop up their Chimnies when once made, and that this Duty was paid for many Chimnies which were never used, and what Profit can a Man have of a Chimny he never useth? If there had been an Act that so much should be paid for every Window, 'tis all one whether it had been for pro­fit or pleasure, or whether the Window had been used or not; and there is as much reason that a Man should pay for Houses never Inhabited, as for such as have been Inhabited and are afterwards without Tenants.

This Act ought therefore to receive a favourable Constructi­on; the Preamble whereof mentions that it was for the encreasing of the Kings Revenue, which is pro bono publico, and which is for the Peace and Prosperity of the Nation, and the protection of every single person therein; and though a particular Inconve­nience may follow, the Party ought to submit. When a Man builds a House, he proposes a Profit, and 'tis not fit the Kings Duty should be contingent and depend till he has provided himself of a Tenant.

Object. As to the other Objection that was much relied on, viz. where the Act speaks of an Accompt to be given, it mentions both Owner and Occupier; but where it directs the Payment of [Page 192] the Duty the Occupier only is named, by which it was inferred that he alone was chargeable.

Answ. In 16 Car. 2. cap. 3. Owner, Proprietor and Occupier are used promiscuously, wherein it is provided that they shall not be charged unless within two years after the Duty accrued; now if the Owner was not chargeable, why is he mentioned there?

As to the second Point, they conceived that the Duty being payeable to the King, he had a remedy by distress before the Accompt was certified into the Exchequer; for the Return was to inform the King what advantage he maketh of his Revenue, and no Process issued upon it; besides the Act vests the Duty in him from Lady-day 1662. And by reason of that he may distrain. The King hath no benefit by returning of the Account, that being only intended to prevent his being cheated, so that 'tis not to entitle but to inform him; 'tis only to return a just and true account; not but that it may be levied, and the King entitled before; and 'tis no inconvenience to the Subject, if there be no such Account returned, for if the Officer distrain for more Hearths than in truth there are, the Subject has a proper remedy against him.

The King suffers when Returns are not made of such Du­ties as he ought to have for the support of his Dignity; and because he is lyable to be defrauded in the managing of his Duty, is it reasonable that he should lose all?

As to what was said of the Kings taking by matter of Re­cord; 'tis true, if he divest an Inheritance, as in case of At­tainder, it must be by Record; but here the very Duty is given to him by the Act it self, which makes it a different Case.

If the King should be seised in Fee of a great Wast, which happens to be improved by his Tenants, and thereby Tythes become due, it may be as well said, that he shall have no Tythes without Record, as to say he shall have no Hearth-Mony for Houses newly erected, whereby his Revenue is increased. For which Reasons Iudgment was prayed for the Defendant, and upon the second Argument Iudgment was given accordingly for him,Curia. That empty Houses are subject and lyable to this Duty.

Astry versus Ballard.

IN an Action of Trover and Conversion for the taking of Coals, upon Not-Guilty pleaded,Grants must be taken according to common intend­ment. Jones 71. the Iury found a special Verdict. The Case was thus.

Viz. That one J. R. was seised in Fee of the Manor of Wester­ly, and being so seised did demise all the Mesuages, Lands, Tenements and Hereditaments that he had in the said Manor, for a Term of years to N. R. in which demise there was a recital of a Grant of the said Mannor, Mesuages, Lands, Tene­ments, Commons, and Mines, but in the Lease it self to R. the Word Mines was left out. Afterwards the Reversion was sold to the Plaintiff Astry, and his Heirs by Deed enrolled; and at the time of this demise there were certain Mines of Coals open, and others which were not then open; and the Coals for which this Action of Trover was brought, were digged by the Lessee in those Mines which were not open at the time of the Lease; and whether he had power so to do, was the Question.

It was said, That when a Man is seised of Lands where­in there are Mines open, and others not open; and a Lease is made of these Lands in which the Mines are mentioned.Antea. 'Tis no new Doctrine to say, that the close Mines shall not pass; Mens Grants must be taken according to usual and common intend­ment, and when Words may be satisfied, they shall not be strain­ed farther than they are generally used, for no violent Constructi­on shall be made to prejudice a Mans Inheritance, contrary to the plain meaning of the Words.

A Mine is not properly so called 'till it is opened, 'tis but a Vein of Coals before; and this was the Opinion of my Lord Coke in point, in his first Inst. 54. b. Where he tells us,5 Co. 12. San­ders Case Roll. Abr. 2 part 816. that if a Man de­mises Lands and Mines, some being opened and others not, the Lessee may use the Mines opened, but hath no power to dig the unopened Mines, and of this Opinion was the whole Court; and Iustice Twisden said, That he knew no reason why my Lord Coke's single Opinion should not be as good an Au­thority as Fitzherbert in his Nat. Br. or the Doctor and Student.

Ipsley versus Turk.

IN a Writ of Error upon a Iudgment in an Inferiour Court,What is ad­mitted in pleading shall not be assigned for Error. Jones 81. the Error assigned was, That the Mayor, who was Iudge of the Court, did not receive the Sacrament at any Parish [Page 194] Church, nor file any Certificate, so that he was not Mayor; and Iudgment being given against the Defendant before him, it was therefore Coram non Judice, like the Case of Hatch and Nichols Roll. Abr. 1 part tit. Error 761. Where, upon a Writ of Error brought upon a Iudgment in an Inferiour Court, the Error assigned was, that the Stile of the Court was Curia tent̄ coram J. S. Seneschallo, who was not Steward, and that was held to be an Error in fact.

But on the other side it was insisted that this was not Error, because the Acts of the Mayor should not be void as to Stran­gers. The Statute of 25 Car. 2. cap. 2. for preventing of dangers which may happen from Popish Recusants, disables the Party who is not qualified according to the Act to hold an Office, and if he execute the same, afterwards upon complaint made, and Conviction he shall forfeit 500 l. so that as to himself, whatever he doth in his Office is void; but it was never the intent of the Act to work a Mischief or Wrong to Strangers, for the Law favours what is done by one in reputed authority; as if a Bishop be created, who upon a Presentation made admits a Parson to a Benefice or collates by Lapse, the former Bishop not being deprived, or removed, such acts are good and not to be avoided, Cro. Eliz 699.

Cro Car. 97. 2 Cro. 260.But admitting it to be an Error, it cannot now be assigned for such, because the Parties in Pleading have allowed the proceed­ings to be good upon Record, and there is Iudgment against the Defendant, but if he had been taken upon that Iudgment, he might have brought an Action of false Imprisonment, 2 Cro. 359. Cro. Eliz. 320.

Wild Iustice, You shall not assign that for Error which you might have pleaded, especially having admitted it by pleading; and one Musgrave's Case was cited, which was, that there is an Act of Parliament which lays a Tax upon all Law proceedings, and makes them void, if the Kings Duty be not paid, and it was adjudged, That if the Duty was not paid, but admitted in pleading, you shall not afterwards alledge what before was admitted, viz. That the Duty was not paid.

Vpon a Writ of Error in Parliament it cannot be assigned for Error, that the Chief Iustice of the Kings-Bench, had not taken this Oath; the same might be also of a Writ of Error in the Exchequer Chamber, for an Error in Fact cannot be there assigned;Sid. 253. but at the last the Iudgment was Reversed: See the Reasons thereof by the Chief Iustice Jones in his Reports, folio 81.

Higginson versus Martin, in C. B.

IN an Action of Trespass and false Imprisonment,If Cause of Action doth not arise with­in the Juris­diction, tho' Judgment is given be­low, an Action will lie here. the De­fendant justifies by Process issuing out of the Court of Warwick, upon a Iudgment obtained there, and sets forth, that there was a Plaint there entered in placito transgressionis, to which the Defendant appeared, super quo taliter processum fuit, that Iudgment was given against him, upon which he was ta­ken and Imprisoned.

The Plaintiff replies, That the Cause of Action did not arise within the Iurisdiction of that Court.

The Defendant rejoyns, that the Plaintiff is now estopped to say so, for that the Declaration in the Inferiour Court against the now Plaintiff, did alledge the cause of Action to be infra jurisdictionem of the Court, to which he pleaded, and Iudg­ment was given against him: The Plaintiff demurrs.

And Newdigate Serjeant took Exceptions to the Plea.

1. Ex parte Quer. 'Tis said a Plaint was entered in placito transgressionis but 'tis not said what kind of Trespass it was, whether a clau­sum fregit or other Trespass.

2. 'Tis said that the Defendant appeared, super quo taliter pro­cessum fuit, that Iudgment was given for the Plaintiff,Antea. and no mention was made of any Declaration; and the pleading tali­ter processum est in an Inferiour Court, is not good.

3. The Iustification is ill, because the Inferiour Court had no Iurisdiction, and so the Proceedings are coram non Judice, for the Plaintiff in his Replication saith, That the Trespass for which the Recovery was had in the Court of Warwick, Moor 422. Latch 180. Cro. Jac. 184. was done at a place out of the Iurisdiction of the Court, which the Defen­dant hath admitted, by relying on his Plea by way of Estoppel.

4. It did not appear by what Authority the Court at War­wick was held whether by Grant or Prescription.

These Exceptions were answered by Serjeant Hopkins, Ex parte Def. and first he said, That the Plaintiff there sets forth that levavit quandam querelam in placito transgressionis, which was well enough.

Secondly, taliter processium fuit is the shorter and better way of Pleading, and therefore in a Scire Facias nothing is recited but the Iudgment; 'tis true, in a Writ of Error the whole Re­cord must be set out, but that is not necessary here.

Thirdly, 'tis too late now to question the Iurisdiction of the Inferiour Court, after the Party hath admitted it below; he ought first to have pleaded to the Iurisdiction, but now is Estop­ped by his own admittance there; and since Iudgment is given upon it, 'tis not now to be questioned; but however, this be­ing in the Case of an Officer, if it was out of the Iurisdiction he is bound to execute the Process of the Court, and so this is a good excuse for him, Dyer 61. 10 Co. 77.

But let the Pleadings be good or bad, if the Declaration here be ill, the Plaintiff cannot have Iudgment; and that it was so, he said that the Writ alledged an Imprisonment ge­nerally, but the Count an Imprisonment donec he paid 5 l. 10 s. which is variant, and the Prothonotaries said, that the Writ used always to mention donec, &c.

Curia.But the Court were all of Opinion, that the Count was well enough, for there was no matter therein contained which was not in the Writ; the Imprisonment was the Gist of the Action, and the donec, &c. might have been given in Evidence, because 'tis only an aggravation and a consequence of the Imprisonment, so that the Count is not larger, but more particular than the Writ: And as to the two first Exceptions, the Court was al­so of Opinion, that there was no difficulty in them, or in the last Exception, but thought the Plea was well enough as to those: And they also agreed that the Officer in this Case was to be discharged, for though the Process be erronious, yet he is to obey and not to examine, 2 Cro. 3. Weaver versus Clifford: The great doubt in this Case was upon the third Exception as to the point of Iurisdiction,Sid. 151. Latch 181. and whether the other Defendant, who was the Plaintiff below, should be likewise discharged, was the Question.

And as to that, the Chief Iustice, and Wyndham Iustice were of Opinion, That this was no good justification as to the Plain­tiff below; for if the cause of Action did arise without the Iuris­diction, of which he is bound to take notice, the proceedings quoad him, are all coram non Judice, and he cannot justifie the ser­ving of any Process; so that if the Trespass was done out of the Iurisdiction of the Court, the Defendant below may bring an Action against the Plaintiff, and is not concluded here by the pro­ceedings there, but may alledge the cause of Action to arise out of the Iurisdiction; and as to his being Estopped by admitting of the Iurisdiction below, that cannot be, because an admittance cannot give the Court a Iurisdiction where it had none originally, and so he said it was resolved in one Squib's Case, in a special Verdict.

He who sues in an Inferior Court is bound at his peril to take notice of the Bounds and Limits of that Iurisdiction; and if the Party after a Verdict below prays a Prohibition, and al­ledges that the Court had no Iurisdiction, a Prohibition shall be granted; and 'tis no Estoppel that he did not take advantage of it before, 1 Roll. Abr. 545.

But Iustice Atkins and Scroggs were of another Opinion, they agreed that if an Action be brought in an Inferior Court, if it be not said to be infra Jurisdictionem Curiae they would never presume it to be so, but rather to be without, if not alledged to be within the Iurisdiction, and here in the Plea 'tis not shewn at all; so that as the Case stands upon the Plea the Proceédings are coram non Judice, and there is no legal Authority to war­rant them, and by consequence the Officer is no more to be ex­cused than the Party, because also 'tis in the Case of a parti­cular Iurisdiction: And so it hath béen adjudged upon an Escape brought against an Officer of an Inferior Court, wherein the Plaintiff declared that he had brought an Action upon a Bond against S. in the Court of Kingston, and that he had Iudgment and Execution, and the Defendant suffered him to escape; this De­claration did not charge the Defendan, because the Bond was not alledged to be made infra Jurisdictionem Curiae; for though such an Action is transitory in its nature, yet the Proceedings in an inferior Court upon it are coram non Judice, if it doth not appear to be infra Jurisdictionem, 1 Roll. Abr. 809. though in the Case of a general Iurisdiction it might be otherwise.

But here the Rejoynder doth help the Plea; for the Plaintiff having replied that the Trespass was committed out of the Iu­risdiction, and the Defendant having rejoyned that he had al­ledged in his Declaration below that the Trespass was done within the Iurisdiction, 'tis now all one Plea, and the Plaintiff hath confessed it by his Demurrer; so that in regard it was al­ledged below and admitted there, 'tis a good Plea both for Of­ficer and Party, and the Plaintiff cannot now take advantage of it, but is concluded by his former admittance, and it shall not be enquired now whether true or false.

And as to the taliter processum fuit they all held it well enough, and that there was no necessity of setting out all the Proceedings here as in a Writ of Error.

And as to the last Exception 'tis said that the Burrough of Warwick is antiquus Burgus, and that the Court is held there secundum consuetudinem, which is well enough.

Jones's Case.

Common Pleas can­not grant Habeas Cor­pus in Cri­minal Ca­ses.IT was moved for a Habeas Corpus for one Jones, who was com­mitted to New Prison by Warrant from a Iustice of Peace for refusing to discover who intrusted him with the keeping of the Keys of a Conventicle, and for that he had been instrumental to the Escape of the Preacher; he was asked by the Iustice to give Security for his Good Behaviour, which he also refused, and thereupon was committed.

The Chief Iustice doubted that a Habeas Corpus could not be granted in this Case, because it was in a criminal Cause of which the Court of Common Pleas hath no Iurisdiction, and that seemed to be the Opinion of my Lord Coke, Vaugh. 157. 2 Inst. 53. 2 Inst. 55. where he saith it lies for any Officer or priviledged Person of the Court.

There are three sorts of Habeas Corpus in this Court; one is ad respondendum, Mod. Rep. 235. which is for the Plaintiff, who is a Suitor here against any Man in Prison, who is to be brought thereupon to the Barr and remanded if he cannot give Sureties.

There is another Habeas Corpus for the Defendant ad faciend' & recipiend'; as to this the same Iurisdiction is here as in the Court of Kings Bench; if a person be near the Town by the course of the Court he may be brought hither to be charged and then the Habeas Corpus is returnable immediate; but if he be re­mote, it must then be returnable in the Court at a certain day; these are the Habeas Corpus's which concern the Iurisdiction of this Court, and are incident thereunto.

There is another which concerns Priviledge, when the Party comes and subjects himself to the Court to be either bailed or discharged, as the Crime is for which he stands charged; and if he be priviledged, this Court may examine the Case and do him right; if a private man be committed for a criminal Cause we can examine the Matter and send him back again. Before King James's Reign there was no Habeas Corpus but recited a Priviledge, as in the Case of Priviledge for an Attorny; so that if this Court cannot remedy what the Party complains, 'tis in vain for the Subject to be put to the trouble when he must be sent back again; neither can there be any failure of Iustice, be­cause he may apply himself to a proper Court; and of the same Opinion were Wyndham and Scroggs.

But Iustice Atkins was of another Opinion, for he could see no Reason why there should not be a Right to come to this Court as well as to the Kings Bench.

And that Vaughan, Wild and Archer Iustices, were of Opinion that this Court may grant a Habeas Corpus in other Cases be­sides those of Priviledge.

Afterwards the Prisoner was brought to the Court upon this Habeas Corpus, but was remanded, because this Court would not take Sureties for his Good Behavior: The Chief Iustice said that when he was not on the Bench he would take Sureties as a Iustice of Peace: And Monday, late Secondary informed him that Iustice Wild when he sate in this Court did once take such Sureties as a Iustice of Peace.

Anonymus.

IT was the Opinion of the Chief Iustice North, In Replevin both are Actors. that in a Replevin both Parties are Actors; for the one sues for Da­mages, and the other to have the Cattle, and there the place is material; for if the Plaintiff alledges the taking at A. and they were taken at B. the Defendant may plead Non cepit modo & forma, but then he can have no Return; for if he would have a Retorn' Habend' he must deny the taking where the Plaintiff hath laid it, and alledge another place in his Avowry.

Sir Osborn Rands versus Tripp.

THE Plaintiff was a Tobacconist and lived near Guild-Hall, London; he married the Daughter of the Defendant,New Trial granted. who was an Alderman in Hull, and had 400 l. Portion with her; after the Marriage the Defendant spoke merrily before thrée Wit­nesses, That if his Son-in-Law would procure himself to be Knight­ed, so that his Daughter might be a Lady, he would then give him 2000 l. more, and would pay 1000 l. part thereof presently upon such Knighthood, and the other 1000 l. within a year after: (it being intended when the Plaintiff should by his Trade get an Estate sufficient to qualifie him for the Dignity of a Knight.)

The Son-in-Law without acquainting the Defendant did about nine Months afterwards procure himself to be Knighted, and brought an Assumpsit for the 2000 l. which was tried before the [Page 200] Chief Iustice North at Guild-Hall, and the Iury gave 1500 l. Damages.

And now Serjeant Maynard moved for a new Tryal upon the Affidavit of the Defendant that he had found out material Wit­nesses since the Trial, and that such Witnesses, as he had ready at the Trial, could not get into Court; because of the great Tumult and Disorder there with a Multitude of People, by reason whereof his Council could not be heard from the noise, and when they offered to speak were as often hissed.

The Chief Iustice thought it was a hard Verdict, for he was not clearly satisfied that the Agreement was good, it being only for Words which were spoken by the Old Man when he had but a weak Memory; and thereupon a new Tryal was granted, be­cause the Chief Iustice thought it was fit so to be.

Basket versus Basket.

Disjunctive Condition, one part is discharged by the Ob­ligee, the other part shall not be performed by the Ob­ligor. Mod. Rep. 264.DEBT upon a Bond with a Condition to make an Assu­rance of an Annuity of 20 l. per annum to the Plaintiff within six Months after the death of M. B. and if he refuse when requested by the Plaintiff, then to pay 300 l. and if he fail in payment thereof the Bond to be forfeited.

The Defendant pleads that all the six Months he was a Pri­soner at Morocco in Barbary, and that after his Return he re­quested the Defendant; and to this Replication the Defendant demurred.

And Serjeant George Strode maintained the Demurrer.

The Question was, whether the Plaintiff by neglecting to ten­der a Grant of the Annuity to the Defendant hath not dispensed with the whole Condition; and he held that it was dispensed withal, and that no Request being made the Bond could not be sued at the Common Law, and therefore the Replication was ill.

'Tis not so much a disjunctive Condition to do one thing or another, but the last Clause is a Penalty to inforce the first; for seeing the Annuity is to be but 20 l. per annum for a Life, and yet that 300 l. is to be paid in case that be not granted, this proves it to be only a Penalty, because Annuities at the highest value are but at eight years purchase, whereas this is fiftéen years purchase, so that the 300 l. could never be intended as a [Page 201] Recompence for the Annuity; neither could the Defendant pos­sibly save the Condition, because the same time is limited both for the Paymenr of the 300 l. and granting of the Annuity, viz. within six Months; and the Plaintiff hath to the utmost time to request the executing the Grant,1 Sand. 287. and therefore the other cannot pay the Mony before.

But taking the Case to be that this is a disjunctive Condi­tions; yet since Conditions are always made in favour of the Obligor, the power of Election even in such Cases is left wholly in him; but according to such Constructions, as would be made for the Plaintiff, the Election is gone from the Defendant,Wright and Bull, Postea. and left in the Obligée; for if he do not request the Annuity, then the 300 l. is to be paid, and this is directly against the Rules of disjunctive Conditions; and the Case ofCor. Eliz. 396 539. 1 Roll. Abr. 447. Poph. 98. Goldsb. 142. Greeningham and Ewre is express in Point, where the Condition of a Bond was, that if the Obligor delivered to the Plaintiff thrée Bonds by such a day, or gave him such a Release of them, as the Plaintiffs Council should advise, before the said day, that then, &c.

The Defendant pleads nothing as to the delivery of the Bonds, but saith, that the Plaintiffs Council advised no Release; and upon a Demurrer this was adjudged for the Defendant, because in all Obligations with a Penalty the Election is always in the Obli­gor; and this being a disjunctive Condition each part is likewise in his Election; for if the Obligee should not tender the Release, the other is not bound to deliver the Bonds; and if he should tender it, then the Obligor may either deliver the Bonds or exe­cute the Release, which he pleaseth, 4 H. 7. 4.

If a Man enter into Bond with Condition to marry Jane by such a day, and the Obligee marry her before the day,1 Roll. Abr. 455. the Condition is saved; but 'tis otherwise if a Stranger had married her before that day: The Act of God and the Act of the Obligée in many Cases dispense with Conditions, as 5 Co. 21. b. if a Parson be bound in a Bond conditioned to resign his Church to A. in con­sideration of a certain Pension agreed on, and the Parson re­fuses; the Court was of Opinion that he need not resign till he was sure of his Pension by Deed which they held ought to be first tendred unto him.

So a Man covenants to grant such an Estate to his Wife or to leave her worth so much Mony, if she survive him, if she dies before him the Condition is not broken, though he did not make such Grant: In the Case of Warren and White it was lately adjudged in the Kings Bench, that where Warren was in­debted to Warner, and White became bound with him to pay the Mony before the 25th day of December then next following; [Page 202] but if he did not pay it, that then Warren should appear the next Hillary Term following to Warner's Action; Warren dies after the 25th of December, but before the Term; and it was held that the Bond was not forfeited,1 Rol. Abr. 451. because the Obligor had Election to do either the one or the other, and the performance of the one becoming impossible by the Act of God, the Obligation was saved.

Moor 645.If the Case of Moor and Moorcomb, Cro. Eliz. 864. should be objected, where the Condition of the Bond was, that the De­fendant should deliver to the Plaintiff a Ship before such a Feast, or in default thereof pay at the same Feast such a Sum as a third person therein named should adjudge, which third person ap­pointed no Sum to be paid, and yet there it was adjudged for the Plaintiff that it did not dispense with the whole Condition.

Which Case he agreed to be Law, because there the valuation and worth of the Ship and the Mony to be paid was by the ap­pointment of a Stranger, and the Condition being for the be­nefit of the Defendant he is to procure the Stranger to make an appointment what Sum should be paid, or to deliver the Goods, otherwise the Bond is forfeited, and he hath expresly agreed to do the one or the other.

But this is not like the Case at the Barr, where 'tis not a Stranger, but the Obligee himself that must procure the Con­veyance; for 'tis to be advised by his Council, and to be done at his Costs; and therefore in5 Co. 23. Lamb's Case it was held that if a Man be bound to give such a Release before such a day as the Iudge of the Admiralty shall direct; there 'tis no Plea to say that he appointed none, for the Iudge being a Stranger to the Condi­tion,1 Roll. Abr. 452. lit. L. placito 6. the Defendant is to apply himself to him, having undertaken to perform it at his peril, which is the same Resolution with Moor's Case in Crook.

So that he took it for a Rule in all Cases, that where the Act of God or of the Obligée discharges the Obligor from one part of a disjunctive Obligation, that the Law discharges him of the other; and therefore prayed Iudgment for the Defendant, Dyer 361.

Ex parte Quer.Serjeant Pemberton contra. It appears that one thing or the other was to be done in this Case; for if the Plaintiff demanded and tendred an Annuity, the Defendant was to seal it; and if he did not tender it, then likewise the Defendant was to do some­thing, viz. to pay 300 l. So that the Plaintiff was either to have the Annuity or the Mony.

He agreed that where the Obligor hath the Election, if in such Case the Obligée shall wilfully determine it, that the Bond is thereby discharged.

But if a Stranger take away the Election, 'tis no discharge, for in such case the other part is to be performed.

In this case the Plaintiff hath done no wilful Act to deter­mine the Defendants Election, but all which is pretended is that he hath not done something necessary to be performed, which is, that he hath not made a request.

But by his omission thereof, the Defendants Election is not taken away, for though no request was made within the six Months, yet the Defendant might have prepared a Grant of the Annuity himself, and have offered it to the Plaintiff, within the six Months, upon the last part of the day; and if he had thus set forth his case, and alledged that the Plaintiff made no request, nor tendered him a Grant of the Annuity to Seal, this had been a good performance of the Condition, for he had done that which was the substance, which, though it was to be done at the Plaintiffs charge, yet the Defendant might have brought an Action for so much Mony by him laid to the use of the other; and the Cases put in the principal Case in Moor 645. are expressly for the Plaintiff in this Case, where the Iudgment was, That if there be a Statute with a Defeazance, to make such Conveyance as the Council of the Conusee shall direct, the Cognisor must prepare the Conveyance, if the other doth not; and there is a Case put where a thing was to be done at the Costs of the Plaintiff, yet the Defendant did it at his own Charge, which he recovered of the other.

North Chief Iustice,Judgment. and the whole Court were of Opinion that the Plea was good, because the Defendant had the bene­fit of Election, and the Plantiff not making the request within the six Months, had dispensed with one part of the Condition, and the Law hath discharged the Defendant of the other part; and they relied upon the Case of Grenningham and Ewre, which they held to be good Law, and an Authority express in the very point.

In this Case the Obligee was to do the first act, Viz. To make the request. Where the Condition is single concilium non dedit advisamentum is a good Plea to discharge the Defendant; so here the Condition is but single, as to the Defendant; for though it be disjunctive, yet the Plaintiff hath taken away the benefit of Election from the Obligor of doing the one, and there­fore he shall be excused from doing the other.

The Pleading as alledged by the Council of the Plaintiff, would not have been a good performance of the Condition, for if one be bound to Convey as the Council of the other shall [Page 204] advise, and he makes the Conveyance himself, this is not such a Deed as was intended by the Parties, and so no performance of the Condition.

But however the Defendant need not plead it, for he is not bound so to do.

Here if the Plaintiff had requested the Sealing of such a Grant of an Annuity, even the Defendant had liberty either to execute it, or to pay the 300 l. and where the Election is on the Obligors part, neither the act or neglect of the Obligee shall take it away from him; for it would be unreasonable that the Obligee should have his choice, either to accept of the Annuity or the 300 l. when 'tis a known Rule, That all Conditions where there is a Penalty in the Bond, are made in favour and for the benefit of the Obligor, and the 300 l. in this case to be paid upon the refusal of the Defendant to make such Grant, is in the nature of a Penalty to enforce him to do it.

The principal Case in Moor 645. was agreed to be Law, but the Rule there put was denied, as not adequate to the present Case, which was, that if by the Act of God, or of the Party, or through default of a Stranger, it becomes impossible for the Obligor to do one thing in a disjunctive Condition, he is notwithstanding bound to do the other.

This is true only as to the last Case, but not to the two first; and for an Authority5 Co Laughter's Case was full in the Point, which is, that when a Condition consists of two parts in the disjunctive, and both are possible at the time of the Bond made, and afterwards one becomes impossible by the Act of God, or of the Party, the Ob­ligor is not bound to perform the other part.

And Iudgment was given for the Defendant.

Smith versus Tracy. In Banco Regis.

Distributi­on shall be equally made a­mongst the Children of the whole and half Blood. Mod. Rep. 209. Jones 93. 1 Ventris 307IN a Prohibition; The Case was: A Man dies intestate having three Brothers of the whole Blood, and a Brother and Sister of the half Blood; and the Question was whether they shall be admitted to a distribution in an equal degreé.

Mr. Holt argued that they were all in aequali gradu, because before the Act of Distribution the Ordinary had power to compel the Administrator to give and allot filial Portions to the Children of the deceased out of his Estate. And by the Civil Law such provision is made for the Children of the Intestate that the Goods, which either the Father or Mother brought to each other [Page 205] at the Marriage, shall not remain to the Survivor, but the use and occupation of them only during Life, for the Property did belong to the Children.

By the Statute of 21 H. 8. cap. 5. the Ordinary is to grant Administration to the Widow of the Intestate, or to the next of his Kin, or to both, as by his discretion he shall think good, and in Case where divers persons claim the Administration as next of Kin, which be in equal degree, the Ordinary may commit Ad­ministration to which he pleaseth, and his power was not abridged, but rather revived by this late Act, by which 'tis Enacted,22 & 23 Car. 2. That just and equal distribution shall be made amongst Wife and Chil­dren, or next of Kin in equal degree or legally representing their Stocks pro suo cuique jure; and the Children of the half Blood do in the Civil Law legally represent the Father, and to some purposes are esteemed before the Vncles of the whole Blood.

'Tis no Objection to say, that because the Law rejects the half Blood as to Inheritances, therefore it will do the same as to personal Estates, because such Estates are not to be determined by the Common but by the Canon or Civil Law, and if so, the half Blood shall come in for distribution, for this Act of Parlia­ment confirms that Law.

Winnington Sollicitor General contra. He agreed that before this Act the half Blood was to have equal share of the Intestates Estate; but that now the Ordinary was compelled to make such distribution, and to such persons as by the Act is directed, for he had not an original power to grant Administration in any case that did belong to the Temporal Courts,Sid. 370, 371. but it was given to him by the Indulgence of Princes, not quatenus a Spiritual Person, Hen­sloes Case, 9 Co. Bendl. 133.

And if he had not power in any Case, he could not grant to whom he pleased. But admitting he could, his power is now abridged by this Statute, and he cannot grant but to the Wife and Children or next of Kin in equal degrée or legally representing their Stocks.

Now such legal representation must be according to the Rules of the Common, and not of the Civil Law; for if there be two lawful Brothers and a Bastard eigne, and a Question should arise concerning the distribution of an Intestates Estate, the subsequent Marriage according to the Law in the Spiritual Court would make the latter legitimate, and if so a legal Re­presentative amongst them; but this Court will never allow him so to be.

But the Court were all of Opinion that in respect of the Fa­ther the half Blood is as near as those of the whole, and there­fore they are all alike and shall have an equal distribution; and that such Construction should be made of the Statute as would be most agreeable to the Will of the dead person, if he had devised his Estate by Will; and it was not to be imagined if such Will had been made, but something would have been given to the Children of the half Blood: And thereupon a Consultaion was granted.

Anonymus. In C. B.

FAux Judgment: viz. Serjeant Turner took this Exception, that the Plaintiff in the Court below had declared ad dam­num 20 l. whereas it not being a Court of Record, and being sine Brevi the Court could not hold Plea of any Sum above 40 s. and for this Cause the Iudgment was reversed.

DE Termino Paschae Anno 29 Car. II. in Communi Banco.

Southcot versus Stowel. Intrat' Hill. 25 & 26 Car. 2. Regis Rot. 1303.

IN a Special Verdict in Ejectment; The Case was,Covenant to stand seised, how it differs from a Convey­ance at the Common Law. Mod. Rep. 226. Tho­mas Southcot having Issue two Sons, Sir Popham and Wil­liam, and being seised in Fée of a Farm called Indyo, (the Lands now in question) did upon the Marriage of his el­dest Son Sir Popham, covenant to stand seised of the said Farm to the use of the said Sir Popham Southcot, and the Heirs Males of his Body on Margaret his Wife to be begotten; and for want of such Issue, to the Heirs Males of the Covenantor; and for want of such Issue, to his own right Heirs for ever.

Sir Popham had Issue begotten on his Wife Margaret, Ed­ward his Son, and five Daughters, and dies.

Thomas, the Covenantor, dies.

Edward dies without Issue.

And whether the five Daughters, as Heirs general of Tho­mas, or William their Vncle, as special Heir Male of Thomas per formam doni, shall inherit this Land was the Question.

Two Objections were made against the Title of William, the Vncle.

1. Vaugh. 49. Because here is no express Estate to Thomas the Cove­nantor, for 'tis limited to his Heirs Males, the Remainder to his own right Heirs; so that he having no Estate for Life, the Estate Tail could not be executed in him, and for that reason William cannot take by descent.

2. He cannot take by Purchase, for he is to be Heir of Tho­mas, and Heir Male, the Limitation is so; but he cannot be Heir, for his five Nieces are Heirs.

In answer to which, these Assertions were laid down.

1. That in this Case Thomas the Covenantor hath an Estate for Life by implication, and so the Estate Tail being executed in him comes to William by descent and not by purchase; for though the Covenantor had departed with his whole Estate, and limited no Vse to himself, yet he hath a Reversion, because he can have no right Heir while he is living; and therefore the Statute of 27 H. 8. Hob. 30. creates an Vse in him till the future use cometh in esse, and by consequence the right Heirs cannot take by pur­chase; for wherever the Heir takes by purchase, the Ancestor must depart with his whole Fee, for which reason a Fee cannot be raised by way of purchase to a Mans right Heirs, by the name of Heirs, either by Conveyance of Land or by Vse or Devise, but it works by descent, 1 Inst. 22. b.

And that Vses may arise by Implication by Covenants to stand seized, the Authorities are very plentiful, Moor 284. 1 Co. 154. Lord Paget's Case cited in the Rector of Cheddington's Case, Cro. Eliz. 321. 1 Roll. Rep. 239, 240, 317, 438. Lane vers. Pannel.

Cor. Car.And in the Case of Hodgkinson and Wood, in a Devise there was the same limitation as this; the Case was, Thomas being seised in Fee had Issue Francis and William, by several Venters, and devised Land to Francis his eldest Son for Life, then to the Heirs Males of his Body, and for default of such Issue, to the Heirs Males of William, and the Heirs Males of their Bodies for ever, and for default of such Issue to the use of the right Heirs of the De­visor; then he made a Lease to William for 30 years, to com­mence after his death, and dies: William Enters and Suren­ders this Lease to Francis, who Enters and makes a Lease to the Defendant, and dyes without Issue, and William Enters and makes a Lease to the Plaintiff; it was adjudged for William, because he being Heir Male of the Body of the Devisor, had by this Limitation an Estate Tayl, as by Purchase, and that the Inheritance in Fee simple did not vest in Francis.

2. If Thomas the Covenantor had no Estate executed in him, yet William his Son in this Case may take by way of future springing use, because the Limitation of an Estate upon a Co­venant to stand seised, may be made to commence after the An­cestors Death, for the old Seisin of the Covenantor is enough to support it.

There is a great difference between a Feoffment to Vses, and a Covenant to stand seised, for by the Feoffment the Estate is executed presently, 1 Co. 154. Rector of Cheddington's Case; So if there be a Feoffment to A. for Life, Remainder to B. in [Page 209] Fee, if A. refuse B. shall enter presently, because the Feoffor par­ted with his whole Estate; but if this had been in the Case of a Covenant to stand seised, if A. had refused, the Covenan­tor should have enjoyed it again till after the death of A. by way of springing use, like the Case of Parsons and Willis, 2 Roll. Abr. 794. Where a Man Covenants with B. That if he doth not marry, he will stand seised to the use of B. and his Heirs, B. dies, the Covenantor doth not marry; this Vse arises as well to the Heir of B. as to B. himself, if he had been living, and he shall have the Land in the nature of a descent.

But if William cannot take it either by purchase or by descent, he shall take it,

3. Per formam doni as special Heir to Thomas: This Case was compared to that in Littleton Sect. 23. If Lands are given to a Man, and the heirs Females of his Body, if there be a Son, the Daughter is not Heir; but yet she shall take it, for voluntas donatoris, &c.

So if Lands are given to a Man, and the Heirs Males of his Body, the youngest Son shall have it after the death of the eldest, leaving Issue only Daughters, for these are descents se­cundum formam doni.

So in this Case the Estate Tail vested in Edward, and when he died without Issue, it comes to William per formam doni.

Object. The Case of Greswold in 4 & 5 Ph. & Mariae, Dyer 156. seems to be express against this Opinion, which was, that Greswold was seised in Fee, and made a Grant for Life, the Re­mainder to the Heirs Males of his Body, the Remainder to his own right Heirs; he had Issue two Sons, and dyed; the eldest Son had Issue a Daughter, and dyed; and if the Daughter or her Vncle should have the Land was the question in that Case: And it was adjudged that the Limitation of the Remainder was void, because Greswold could not make his right Heir a Pur­chasor, without departing with the whole Fee;Postea. Brittain and Charnock. and therefore Iudgment was given against the special Heir in Tail, for the Heir general, which was the Daughter.

Answ. Admit that Case to be Law (yet the Iudges there dif­fered in their Arguments,) 'Tis not like this at Bar, for that Case was not upon a Covenant to stand seised, but upon a Deed indented, and so a Conveyance at the Common Law: But for an Authority in the point, the Case of Pybus, and Mitford was cited and relied on, which was Trin. 24 Car. 2. Rot. 703. Mod. Rep. 159. 1 Ventris 372. ad­judged by Hales Chief Iustice, Rainsford and Wild, but Iustice Twisden was of a contrary Opinion.

Serjeant Stroud, who argued on the other side, made three Points.

1. Whether this Limitation be good in its creation.

2. If the Estate Tail be well executed in Thomas the Cove­nantor.

3. If it be good and well executed, whether when Edward died without Issue, the whole Estate Tail was not spent.

1. And as to the first Point, he held that this Limitation to the Heirs Males of Thomas was void in the creation, be­cause a Man cannot make himself or his own right Heir a Purchasor, unless he will part with the whole Estate in Fee, Dyer 309 b.

If A. being seised in Fee, makes a Lease for Life to B. the Re­mainder to himself for years, this Remainder is void; so if it had been to himself for Life, because he hath an Estate in Fee, and he cannot reserve to himself a lesser Estate than he had be­fore, 42 Ass. 2.

If I give Lands to A. for Life, the Remainder to my self for Life, the Remainder in Fee to B, after the death of A. in this Case B. shall enter, for the Remainder to me was void, 1 H. 5. 8. 42 Edw. 3. 5. Bro. Estate 66. Dyer 69. b.

'Tis true, these Cases are put at the Common Law, but the Statute of Vses makes no alteration; for according to the Rules laid down in Chudleigh's Case, by my Lord Chief Iustice Popham, 1 Co. 138.

1. Vses are odious, and so the Law will not favour them.

2. A Rule at Common Law shall not be broke to vest an Vse, and the Vses here cannot vest without breaking of a Rule in Law.

3. Vses are raised so privately, that he who takes them may not know when they vest, and for that reason they are not to be favoured.

4. The Statute annexes both the Possession and the Vse to­gether, as they vest and divest both together, Moor 713. 2 Co. 91. Co. Lit. 22. Moor 284.

2. As to the second Point, The Estate is not executed in Thomas, and therefore William cannot take it by descent; Heirs of his Body or Heirs Male, are good Words of Limitation to take by Purchase from a Stranger, but not from an Ancestor, for there he shall take by descent, and for this there is an Au­thority, Co. Lit. 26. b. John had Issue by his Wife Roberga, Robert and Mawd; John dies, Michael gave Lands to Rober­ga, and to the Heirs of her Husband on her Body begotten; [Page 211] Roberga in this Case had but an Estate for Life, for the Fee Tail vested in Robert, and when he died without Issue his Si­ster Maud was Tenant in Tail, per formam Doni, and in a Formedon she counted as Heir to Robert, which she was not, neither was she Heir to her Father at the time of the Gift, yet it was held good; for the Words, Viz. Heirs of the Body of the Father, were Words of Purchase in this Case.

If therefore no Vse for Life vested in Thomas, then William cannot take by descent, Dyer 156. Co. Lit. 22. Hob. 31. Dyer 309. 1 Co. 154. Lord Paget's Case, cited in Hob. 151.

3. To the third Point, Admitting both the former to be against him, yet since Edward is dead without Issue, the Estate Tail is spent.

But the whole Court were of Opinion,Judgment. That William should Inherit this Land in question; for though at the Common Law a Man cannot be Donor and Donee, without he part with the whole Estate, yet 'tis otherwise upon a Covenant to stand seised to Vses: And if any other Construction should be made, many Settlements would be shaken, in which nothing was more usual now, than to Covenant to stand seised to the Vse of himself, and the Heirs Males of his Body, &c.

They all agreed also, That the Estate being well limited, William should take per formam Doni as special Heir, for Volun­tas Donatoris in charta manifeste expressa observetur; and 'tis apparent Thomas intended that William should have it, or else the Limitation to his Heirs Males had been needless.

So that taking it for granted, that the Estate Tail once vested, is not spent by his dying without Issue, but it comes to William by descent, and not as a Purchasor, for so he could not take it, because he is not Heir, and till Thomas be dead with­out Issue, the Tail cannot be spent, so there was no difficulty in that Point.

And they held the Opinions of Dyer and Saunders in Cres­wold's Case to be good Law, who were divided from the other Iustices, but they doubted of Pybus and Mitford's Case, whe­ther it was Law or not; they doubted also whether by any Con­struction Thomas could be said to have an Estate for Life by implication; they doubted also of the springing Vse, but they held that this Limitation was good in its creation, and Iudg­ment was given accordingly.

Cockram Executor versus Welby.

Statute of Limitations not plead­able by a Sheriff, who levied mo­ny by fi. fa. and nine years pass. Mod. Rep. 245.IN Debt, the Plaintiff declared that his Testator recovered a Iudgment in this Court, upon which he sued out a Fieri facias, which he delivered to the Defendant being Sheriff of Lincoln, and thereupon the said Sheriff returned Fieri feci, but that he hath not paid the Mony to the Plaintiff, per quod actio accre­vit, &c.

The Defendant pleaded the Statute of Limitations, to which the Plaintiff demurred.

And the question was, whether this Action was barely ground­ed on the Contract, or whether it had a Foundation upon mat­ter of Record?

If on the Contract only, then the Statute of 21 Jacobi cap. 16. is a good Plea to barr the Plaintiff of his Action, which Enacts That all Actions of Debt, grounded upon any Lending or Con­tract, without Specialty, shall be brought within six years next after the Cause of Action doth accrew; and in this Case nine years had passed.

But if it be grounded upon matter of Record, that is a Specialty, and then the Statute is no barr.

Serjeant Barrel held this to be a Debt upon a Contract, without specialty, for when the Sheriff had levied the Mony, the Action ceases against the Party, and then the Law creates a Contract, and makes him Debtor, as it is in the Case of a Tally delivered to a Customer.

It lies against an Executor, where the Action arises quasi ex contractu, which it would not do if it did not arise ex maleficio as in the Case of a Devastavit.

'Tis true, The Iudgment recovered by the Testator, is now set forth by the Plaintiff Executor, but that is not the ground but only an inducement to the Action, for the Plaintiff could not have pleaded nul tiel Record, so that 'tis the meer receiving the Mony which charges the Defendant, and not virtute Offi­cii upon a false return; for upon the receipt of the Mony he is become Debtor, whether the Writ be returned or not, and the Law immediately creates a Contract; and Contracts in Law are as much within the Statute, as Actual Contracts made be­tween the Parties.

All which was admitted on the other side; but it was said that this Contract in Law was chiefly grounded upon the Record, and compared it to the Case of Attornies Fees, which hath been ad­judged not to be within the Statute, though it be quasi ex con­tractu, because it depends upon Matter of Record, Rolls Abridg. tit. Debt 598. pl. 17.

And afterwards in Michaelmas-Term following by the Opini­ons of the Chief Justice, Wyndham and Atkins Iustices, it was held that this Case was not within the Statute, because the Action was brought against the Defendant as an Officer, who acted by vertue of an Execution; in which Case the Law did create no Contract, and that here was a Wrong done, for which the Plaintiff had taken a proper remedy, and therefore should not be barred by this Statute.

Iustice Scroggs was of a contrary Opinion; for he said if ano­ther received Mony to his use due upon Bond, the Receipt makes the Party subject to the Action, and so is within the Statute.

But by the Opinions of the other Iustices Iugdment was given for the Plaintiff.

Major versus Grigg. In Banco Regis.

THE Plaintiff brought an Action,Covenant to save harmless, and the Plaintiff sets forth no Title in the distur­ber, good after Ver­dict. Cro. Eliz. 914. Cro. Jac. 315, 425. Vaugh. 120, 121. 2 Sand. 178. Mod. Rep. 66. for that the Defendant Non indempnem conservavit ipsum de & concernente occupation̄ quorundam clausorum, &c. secundum formam agreamenti, and sets forth a disturbance by one who commenced a Suit against him in such a Term concernente occupation̄ clausorum praed', but doth not set forth that the person suing had any Title, which (it was said) ought to have been shewn; as if a Man makes a Lease for years and covenants for quiet enjoyment, in an Action brought by the Lessee upon that Covenant it must be shewn that there was a lawful Title in the person, who disturbed, or else the Action will not lie.

But this being after a Verdict, and the Plaintiff setting forth in his Declaration, that the disturber recovered per Judicium Cu­riae, the Court now were all of Opinion that Iudgment should be given for the Plaintiff.

Taylor versus Baker. In Banco Regis.

Payment to the Marshal no dis­charge to the Plain­tiff at whose Suit the Defen­dant was in Execution. Jones 97.THE Case was; viz. a Man being in Execution doth actu­ally pay the Mony to the Marshal, for which he was im­prisoned, and thereupon was discharged; and whether he should pay it again to the Plaintiff upon a second Execution was the Question?

Sanders argued that he should not pay it again; he said this Case was never adjudged, and therefore could produce no Au­thority in Point to warrant his Opinion, but parallel Cases there were many.

As if the Sheriff take Goods in Execution by vertue of a Fieri Facias, whether he sells them or not, yet being taken from the party against whom the Execution was sued, he shall plead that taking in discharge of himself, and shall not be liable to a second Execution, though the Sheriff hath not returned the Writ; and the reason is because the Defendant cannot avoid the Execution, and he would therefore be in a very bad condition, if he was to be charged the second time.

And if the Sheriff should die after the Goods are taken in Exe­cution, his Executors are liable to the Plaintiff to satisfie the debt, for they have paid pro quo, and 'tis in nature of a Con­tract raised by Law.

By the Words of the Capias ad satisfaciend' it doth appear that the design of the Writ is to enforce the Payment of the the debt by the Imprisonment of the Defendant: The Sheriff thereupon returns that he hath taken the Body, and that the Defendant hath paid the Mony to him, for which reason he discharged him; and for this Return he was amerced, not because he discharged the Party, but because he had not brought the Mony into the Court; for the Law never intended that a Man should be kept in Prison after he had paid the debt.

In this Case the Defendant can have no remedy to recover it again of the Marshal, because it was not a bare Payment to him, but to pay it over again to the Plaintiff, and likewise in consideration that he should be discharged from his Imprison­ment.

If it should be objected by the Marshal that the Plaintiff hath an Action of Escape against him, and likewise by the Plaintiff that he did not make the Gaoler his Steward or Bayliff to re­ceive his Mony.

Answ. The Gaoler is made his Bayliff to keep the Party in Ex­ecution, and it would be very hard that when the Prisoner will lay down his Mony in discharge of the Debt, that the Gaoler should not have full power to discharge him.

If he had come in Michaelmas-Term after the long Vacation, and informed the Court that he had offered to pay the Execution Mony to the Marshal, and that he would not take it, and that the Plaintiff could not be found, the Court would have made a Rule to help him.

Mr. Holt contra. If the Payment had béen good to the She­riff or Marshal, yet 'tis not pleadable to the second Execution because 'tis matter in fact.

That which hath been objected that the Party shall plead to a second Execution, that his Goods were taken by a former Fieri Facias cannot be; for no such Plea can be good, because by that Writ the Sheriff hath express Authority to levy the Mony; and the Plea is not Payment to the Sheriff, but that the Mony was levyed by him by virtue of the Writ, which ought to be brought into the Court, and an Audita Querela lies against the Plaintiff, and then the Defendant is to be bailed, 1 Leon. 141. Askew versus the Earl of Lincoln.

Jones and Rainsford were of Opinion, that the Defendant might have remedy against the Marshal to recover his Mony again, and that the Payment to him was no discharge to the Plaintiff at whose Suit he was in Execution: But Iustice Wyld was of another Opinion: Quaere.

The Lord Marquess of Dorchester's Case. In Com­muni Banco.

IN a Scandalum Magnatum. Visne not changed in a Scanda­lum Mag­natum. Serjeant Pemberton moved to have good Bail, which the Court denied, and said that in such Case Bail was not requirable, but notwithstanding the De­fendant consented to put in 50 l. Bail.

And then upon the usual Affidavit moved to change the Visne the Action being laid in London, which was opposed by the Ser­jeant, who desired that it might be tried where it was laid; but he said in this Case that the Visne could not be changed.

[Page 216] 1. Because the King is a Party to the Suit, for 'tis tam pro Domino Rege quam pro seipso.

2. The Plaintiff is a Lord of Parliament which is adjourned and will meet, and therefore it would be inconvenient to try the Cause in the Country, since the Service of the King and King­dom both require his Attendance here; and he said that upon the like Motion in B. R. between the Lord Stamford and Needham, the Court would not change the Visne.

North Chief Iustice said that he always took it as a current Opinion, that in a Scandalum Magnatum the Visne could not be changed; for since it was in the nature of an Information it being tam quam, 'twas advisable whether it was not within the Statute of 21 Jac. which doth appoint Informations to be tried in their proper Counties.

But Iustice Atkins inclined that the Visne might be changed, for though by the Wisdom of the Law a Iury of the Neighbour­hood are to try the Cause, yet in point of Iustice the Court may change the Visne; to which it was objected, that then there would be no difference between local and transitory Actions.

Actions of Debt and Accompt shall be brought in their proper Counties 6 R. 2. and it was agreed that an Attorney is sworn to bring Actions no where else.

But the Court not agréeing, at last the Defendant was wil­ling that the Cause should be tried in London, if the Plaintiff would consent not to try it before the first Setting in the next Term.

And as to that reason offered, why the Visne should not be changed, because the Plaintiff was a Lord of Parliament, Iustice Atkins said that did not satisfie him; it might be a good ground to move for a Trial at the Barr; to which it was an­swered, that in the Case of the Earl of Shaftsbury the Court would not grant a Tryal at the Barr without the Consent of the Defendant.

The Visne was not changed.

Beaver versus Lane.

COvenant made to Baron and Feme, Covenant to Baron and Feme, the Baron alone may bring the Action. the Husband alone brings the Action quod teneat ei conventionem secundum formam & effectum cujusdam Indenturae inter Querentem ex una parte & Defendentem ex altera parte confect', and this was for not repairing his House: After Verdict for the Plaintiff it was moved in Arrest of Iudgment because of this variance.

But the Court Ordered that the Plaintiff should have his Iudg­ment, for the Indenture being by Baron and Feme it was there­fore true, that it was by the Baron, and the Action being brought upon a Covenant concerning his Houses, and going with them though it be made to him and his Wife, yet he may refuse quoad her, and bring the Action alone: And the Chief Iustice said, that he remembred an Authority in an old Book, that if a Bond be given to Baron and Feme the Husband shall bring the Action alone, which shall be looked upon to be his refusal as to her.

Calthrop versus Phillips.

THE Question was,Supersedeas must be de­livered by the old She­riff to the new one. Mod. Rep. 222. in regard a Supersedeas is not return­able in the Court, whether the old Sheriff is bound to de­liver it over to the new one or no; and it was urged that it ought not, because the old Sheriff is to keép it for his indempnity, and he may have occasion to plead it.

But on the other side it was insisted by Serjeant George Strode, that it ought to be delivered to the new Sheriff, and that there was a Writ in the Register, which proved it, fol. 295. and if it should be otherwise these inconveniences would follow.

1. It would be inconvenient that the Capias against the De­fendant should be delivered to the new Sheriff, and not the Su­persedeas which was to admit the Charge, and not the Discharge, Westby's Case, 3 Co. 73. And it was the constant practice not only to deliver the Supersedeas, but the very Book in which 'tis allowed; and this he said appeared by the Certificates of many Vnder-She­riffs, which he had in his hand.

2. If the Sheriff hath an Exigent against B. who appears and brings a Supersedeas to the old Sheriff, and then a new Sheriff is made, if he hath not the Supersedeas he may return him outlawed by vertue of the Exigent; so in the Case of a Iudgment set aside for Fraud or Practice, and a Supersedeas granted; and the like in the [Page 218] case of an Estrepment which is never returned; and it would be an endless work upon the coming in of every Sheriff to renew this Writ.

As to the Objection that the old Sheriff may have occasion to plead it: As often as such occasion happens he may have recourse to it in the Office of the new Sheriff; and he can have no Title to it by the direction of the Writ, for that is Vicecomiti Berks, and not to him by express Christian and Sirname; and of that Opinion was all the Court, and Iudgment was given according­ly nisi causa, &c.

Hamond versus Howel Recorder of London.

An Action will not lie against a Judge for what he doth judi­cially tho' erroniously. Mod. Rep. 184. FAlse Imprisonment. The Defendant pleads specially; the Substance of which was, that there was a Commission of Oyer and Terminer directed to him amongst others, &c. and that before him and the other Commissioners Mr. Penn and Mr. Mead two Preachers, were indicted for being at a Conventicle; to which Indictment they pleaded Not-Guilty, and this was to be tried by a Iury, whereof the Plaintiff was one; and that after the Witnesses were sworn and examined in the Cause, he and his Fellows found the Prisoners, Penn and Mead, Not-Guilty, where­by they were acquitted, & quia the Plaintiff male se gesserit in acquitting them both against the direction of the Court in Mat­ter of Law, and against plain Evidence; the Defendant and the other Commissioners then on the Bench fined the Iury 40 Marks a-piece, and for Non-payment committed them to New-gate, &c.

The Plaintiff replies de injuria sua propria absque hoc that he and his Fellows acquitted Penn and Mead against Evidence; and to this the Defendant demurred.

Serjeant Goodfellow, who would have argued for the Defen­dant, said that he would not offer to speak to that Point, whether a Iudge can fine a Iury for giving a Verdict contrary to Evidence, since the Case was so lately and solemnly resolved by all the Iudges of England, inVaugh. 146. Bushel's Case, that he could not fine a Iury for so doing.

But admit a Iudge cannot fine a Iury, yet if he doth, no Action will lie against him for so doing, because 'tis done as a Iudge, 12 H. 4. 3. 27 Ass. pl. 12. 1 Roll. Abr. 92. Liter. Q. pl. 1. But the Court told him that he neéd not to labour that Point, but desired to hear the Argument on the other side what could be said for the Plaintiff.

Serjeant Newdigate argued that this Action would lie.

1. It must be admitted that the Imprisonment of the Iury was unlawful, and then the consequence will be, that all that was done at that time by the Commissioners or Iudges was both against Magna Charta and other Acts of Parliament, the Petition of Right, &c. and therefore their Proceedings were void, or at least very irre­gular to imprison a Iury-man without Presentment or due Process in Law, and consequently the party injured shall have an Action for his false Imprisonment.

In 10 H. 6. f. 17. In an Action brought for false Imprisonment the Defendant justifies the Commitment to be for Suspicion of Felony; but because he did not shew the ground of such Suspicion the Iustification was not good.

The Trial of Penn and Mead and all incidents thereunto, as swearing the Iury, examining of the Witnesses, taking of the Ver­dict and acquitting the Prisoner were all within the Commission; but the fining of the Iury and the imprisoning of them for Non-payment thereof was not justifiable by their Commission, and therefore what was done therein was not as Commissioners or Iudges.

If this Action will not lie then the Party has a Wrong done, for which he can have no remedy; for the order for paying of the Fine was made at the Old-Bayly, upon which no Writ of Error will lie; and though the Objection that no Action will lie against a Iudge of Record for what he doth quatenus a Iudge, be great, the Reason of which is, because the King himself is de jure to do Iustice to his Subjects, and because he cannot distribute it him­self to all persons, he doth therefore delegate his Power to his Iudges, and if they misbehave themselves the King himself shall call them to account and no other person, 12 Co. 24, 25.

But that concerns not this Case, because what was done here was not warranted by the Commission, and therefore the Defen­dant did not act as a Iudge; and this difference hath beén taken and allowed, that in the Case of an Officer, if the Court hath Iurisdiction of the Cause no Action will lie against him for doing what is contrary to his Duty; but if all the Proceédings are coram non Judice and so void, an Action doth lie, 10 Co. 77.

So in the Case of a Iustice of the Peace or Constable, where he excéeds his particular Iurisdiction; so if a Iudge of Nisi Prius doth any thing not warranted by his Commission, 'tis void.

And that the Commissioners here had no power to impose this Fine, he argued from the very nature of the pretended Offence, which was neither a Crime or in any wise punishable, because what the Plaintiff did was upon his Oath; and for that reason it hath [Page 220] béen adjudged in the CaseBridgman 131. Agard and Wild, that an Action would not lie against one of the Grand Iury after an acquittal, for procuring one to be indicted for Barretry, because he is upon his Oath, and it cannot be presumed that what he did was in Malice.

The Habeas Corpus gives the Party Liberty but no Recom­pence for his Imprisonment, that must be by an Action of False Imprisonment, if otherwise, there would be a failure of Iustice; and it might encourage the Iudges to act ad libitum, especially in inferior Courts, where Mayors and Bayliffs might punish Iu­ries at their pleasures, which would not only be a grievance to the Subject, but a prejudice to the King himself, because no Iuries would appear where they are subject to such arbitrary Pro­céedings.

An Action on the Case lies against a Iustice of the Peace for refusing to take an Oath of a Robbery committed, 1 Leon. 323. and yet it was objected that there he was a Iudge, Quaere, Brook 204. March 117. for which Reasons he prayed Iudgment for the Plaintiff.

Curia.But the whole Court were of Opinion that the bringing of this Action was a greater Offence that fining of the Plaintiff, and committing of him for Non-payment, and that it was a bold attempt both against the Government and Iustice in general.

The Court at the Old-Bayly had Iurisdiction of the Cause and might try it, and had power to punish a Misdemeanour in the Iury; they thought it to be a Misdemeanour in the Iury to ac­quit the Prisoners, which in truth was not so, and therefore it was an Error in their Iudgments, for which no Action will lie: How often are Iudgments given in this Court, reversed in the Kings Bench? And because the Iudges have been mistaken in such Iudg­ments must that needs be against Magna Charta, the Petition of Right and the Liberties of the Subject? These are mighty words in sound but nothing to the Matter.

There hath not béen one Case put which carries any resemblance with this; those of Iustices of the Peace and Mayors of Cor­porations are weak instances; neither hath any Authority been urged of an Action brought against a Iudge of Record for doing any thing quatenus a Iudge.

That Offences in Iury-men may be punished without Present­ment is no new Doctrin, as if they should either eat or drink before they give their Verdict, or for any contempt whatsoever; but 'tis a new Doctrin to say, that if a Fine be set on a Iury-man at the Old-Bayly, he hath no remedy but to pay it; for a Certio­rari [Page 221] may be brought to remove the Order by which it was im­posed, and it may be discharged if the Court think fit.

As to what hath been Objected concerning the Liberty of the Subject, that is abundantly secured by the Law already; a Iudge cannot impose upon a Iury for giving their Verdict contrary to Evidence; if he doth any thing unjustly or corruptly, com­plaint may be made to the King, in whose Name Iudgments are given, and the Iudges are by him delegated to do Iustice, but if there be Error in their Iudgments, as here, 'tis void; and therefore the Barons of the Exchequer might refuse to issue Process upon it, and there needs no Writ of Error, for the very Estreats will be vacated.

Though the Defendants here acted erroneously, yet the con­trary Opinion carried great colour with it, because it might be supposed very inconvenient for the Iury to have such liber­ty as to give what Verdicts they please; so that though they were mistaken, yet they acted judicially, and for that Reason no Action will lie against the Defendant; and Iudgment was given accordingly.

The Case of the Warden of the Fleet.

COmplaint was made by Serjeant Turner on the part of the Parishioners of St. Brides London, against the Warden of the Fleet and his Prisoners, for that he suffered several of them to be without the Walls of his Prison, in Taverns and other Houses adjoyning to the Prison and fronting Fleet-Ditch, where they committed Disorders, and when the Constable came to keep the Peace, and to execute a Warrant under the Hand and Seal of a Iustice of Peace, they came in a tumultuous manner, and hindered the execution of Iustice, and rescued the Offenders, and often beat the Officers, the Warden often let­ting out 20 or 30 of his Prisoners upon any such occasion to inflame the Disorder.

It was prayed therefore, That this Court, to which the Pri­son of the Fleet doth immediately relate, might give such Di­rections to the Warden, that these Mischiefs for the future might be prevented, and that the Court would declare those Houses out of the Prison to be subject to the Civil Magistrate.

The Court were all of Opinion (but Iustice Atkins, Curia. who doubt­ed) that nothing can properly be called the Prison of the Fleet, [Page 222] which is not within the Walls of the Prison, and that the War­den cannot pretend an exemption from the Authority of the Ci­vil Magistrate, in such places as are out of the Prison Walls, though Houses may be built upon the Land belonging to the Fleet; for the preservation of the Kings Peace is more to be valued than such a Private Right.

But Iustice Atkyns said, if such places were within the Li­berties of the Fleet, he would not give the civil Magistrate a Iu­risdiction in prejudice of the Warden, but thought it might be fit for the Court to consider upon what reason it was that the Warden of the Fleet applied such Houses to any other uses than for the benefit of the Prisoners; whereupon the Court appoint­ed the Prothonotaries to go thither and give them an account of the matter, and they would take farther Order in it.

St. Mary Magdalen Bermondsey Church in Southwark: In Scaccario.

Rate for Building a Church shall be set by the Pa­rishioners. Jones 89. Mod. Rep. 236.IN a Prohibition, it was the Opinion of the whole Court, That if a Church be so much out of Repair, that 'tis ne­cessary to pull it down, and that it cannot be otherwise repair­ed, that in such case upon a general warning or notice given to the Parishioners, much more if there be notice given from House to House, the major part of the Parishioners then pre­sent, and meeting according to such notice, may make a Rate for pulling down of the Church to the Ground, and Building of it upon the old Foundation, and for making of Vaults where they are necessary, as they were in this Church, by reason of the springing Water; and though the Rate be higher than the Mo­ny paid for doing all this, yet 'tis good, and the Churchwar­dens are chargeable for the Overplus, they not being able to compute to a Shilling.

That if any of the Parishioners refuse to pay their Propor­tion according to the Rate, they may be Libelled against in the Spiritual Court; and if the Libel alledge the Rate to be pro reparatione Ecclesiae generally, though in strictness Ecclesia con­tains both the Body and Chancel of the Church; yet by the Opinion both of the Court of Common Pleas and of the Exche­quer, It shall be intended, that the Rate was only for the Body [Page 223] of the Church; but in this Case it was made appear clearly that the Rate was only for the Body, and that the Minister was at the charge of the Chancel.

And both Courts agreed, That when a Prohibition is moved and desired on purpose to stop so good a Work as the Building a Church, the Court will not compel the Parties to take Issue upon the Suggestion, when upon examination they find it to be false, and therefore will not grant a Prohibition; for if the Rate be unduly imposed, the Party grieved hath a Remedy in the Spiritual Court, or may Appeal if there be a Sentence against him.

The Bishop or his Chancellor cannot set a Rate upon a Parish, but it must be done by the Parishioners themselves; and so North Chief Iustice said, that it had been lately ruled in the Common Pleas.

Afterwards the Court of Kings-Bench was moved for a Prohi­bition in this Case, and it was denied, so that in this Case there was the Opinion of all the three Courts. This matter was so much laboured because twenty four Quakers were reported to be concerned in the Rate, and they were unwilling to pay to­wards the Building of a Church.

Paget versus Vossius. In B. R.

A Trial at the Bar in Ejectione Firmae, Judgment given upon the Con­struction of words in a Will. Jones 73. 1 Ventris 325. in which the Iury found a special Verdict: The Case was, Viz. That Dr. Vossius the Defendant, being an Alien, and a Subject of the States of Holland, falling into Disgrace there, had his Pension taken from him by Publick Authority: Afterwards he came into England, and contracted a great Friendship with one Dr. Brown a Pre­bendary of Windsor; Then a War broke out between England and Holland, and the King issued forth his Proclamation, decla­ring the said War, and the Hollanders to be Alien Enemies.

Dr. Brown being seised of the Lands now in question, being of the value of 200 l. per Ann. and upwards, made his Will in these words in Writing, Inter alia, Viz. Item I give all my Mannour of S. with all my Freehold and Copyhold Lands, &c. to my dear Friend Dr. Isaac Vossius, during his Exile from his own Native Country; but if it please God to restore him to his Country, or take him [Page 224] out of this Life, then I give the same immediately after such re­storation or death, to Mrs. Abigal Hevenigham for ever.

A Peace was afterwards concluded between England and Holland, whereby all Intercourses of Trade between the two Nations became lawful; but Dr. Vossius was not sent for over by the States, nor was there any offer of kindness to him, but his Pension was disposed of and given to another.

That the Doctor might return into his own Country when he pleased, but that he still continued in England.

And whether he or the Lessor of the Plaintiff Mrs. Heveningham had the better Title, was the question?

Nota, Dr. Vossius was enabled to take by Grant from the King.

Ex parte Quer. Pemberton Serjeant for the Lessor of the Plaintiff, argued that the Estate limited to the Defendant is determined, which depended upon the construction of this Devise. He did agree that the Will was obscure, and the intent of the Devisor must be collected from the circumstances of the Case; and it is a Rule, That according to the2 Cro. 62, 371, 416. intent of the Parties a Will is to be interpreted.

'Tis plain then that the Devisor never intended the Defend­ant an Estate for Life absolutely, because it was to depend upon a Limitation, and the Words are express to that purpose, for he devises to him during his Exile, &c.

Now the Question is not so much what is the genuine and proper sence and signification of those Words, as what the Te­stator intended they should signifie.

1. Therefore the most proper signification of the Word Ex­ile, is a penal Prohibiting a person from his Native Country; and that is sometimes by Iudgment or Edict, as in the case of an Act of Parliament; and sometimes 'tis chosen to escape a great­er Punishment, as in cases of Abjuration and Transportation, &c.

But he did not think that the Testator took the Word Ex­ile in this restrained sense, for Dr. Vossius was never formally or solemnly Banished; if that should be the sense of the Word then nothing would pass to the Doctor by this Will, because the Limitation would be void; and like to the Case of a De­vise to a Married Woman durante viduitate, and she dies in the life-time of her Husband; or to a Woman Sole during her Coverture, or of a Devise to A. the Remainder to the right Heis of B. and A. dies living B, so that this could not be his meaning.

[Page 225] 2. The Word Exile in common parlance is taken only for absence from ones Native Country; but this is a very impro­per signification of the Word, and nothing but a Catachresis can justifie it; and therefore the Testator could not intend it in this sense; 'tis too loose and inconsiderable an Interpretati­on of the Word for the Iudgment of the Court to depend on, unless there were circumstantial Proofs, amounting almost to a Demonstration that it was thus meant: But it plainly appears by the following Words this was not the meaning of the Te­stator, for 'tis said, If it please God to restore him to his Coun­try; which shews that there was some Providence or other which obstructed his return thither, and so could not barely intend a voluntary absence; for if so, he might have expressed it; viz. during his absence from his Country, or till his return thither, or whilst he should stay in England, and not in such doubtful Words.

3. By the Word Exile is meant a persons lying under the displeasure of the Government where he was born, or of some great persons who have an Influence upon the Government, or have an Authority over him; which makes him think convenient (considering such circumstances) to withdraw himself, and re­tire to some other place; and this is a sense of the Word between both the former, and even in the Common Law we are not strangers to the acceptation of the Word in that sense. There is a Case omni exceptione major in the Writ of Waste, which is, fecit vastum de domibus, venditionem de boscis, & exilium de hominibus, 'tis in the Register, and in the Writ on the Sta­tute of Marlebridge cap. 24. where by the exilium de hominibus is meant the hard usage of Tenants, or the menacing of them, whereby they flie from their Habitations, 2 H. 6. 11.

'Tis found in this Case that the Defendant was under the displeasure of his Governours, the War broke out, and there­fore it might not then be safe for him to return; and for that reason he might think it safe for himself to abide here, and this Dr. Brown the Testator might know, which might also be the reason of making the Will.

But now all acts of Hostility are past, and so the Defendants recess is open, and it hath pleased God to restore the Doctor, but he is not pleased to restore himself, for the Iury find he is not returned; now if a Man hath an Estate under such a Limitation to do a thing which may be done when it pleaseth the party; in such case if he neglect or refuse to do the thing, the Estate is determined, 15 H. 7. 1.

If I grant a Man an Annuity till he be promoted to a Be­nefice, and I provide a Presentation for him, and he will not be Instituted and Inducted, the Annuity ceases; so shall the Estate in this Case, because the Devisor seems to appoint it to the De­fendant till he may return.

Ex parte Def.Mr. Holt contra, held that the Estate is not determined, but had a continuance still. In his Argument he considered these four things.

1. Whether upon Dr. Vossius's coming into England (being under the displeasure of the Government where he was born) he was an Exile.

And he held that he was an Exile, which Word in plainness of Speech, doth not only concern a person prohibited to live in his Native Country, by act of State, but one who leaves his Country upon other occasions; and Calvin the Civilian in his Lexicon tells us, That an Exile is one qui extra solum habitat, and in all the descriptions of exilium 'tis divided into voluntary and involuntary; Plutarch and Livy use it in the sense of a vo­luntary leaving of a Native Country, where 'tis said of Petrel­lus in voluntarium profectus est exilium.

If a Man leaves his Country upon the displeasure of the Go­vernours, or fearing any Danger of Life, or even upon the Loss of his Livelyhood, this is little different from involuntary Ex­ile, and this is the Case of the Defendant; who, though he is not prohibited to continue in such Exile, yet he is disabled to return, and though he is not punished for staying, yet if he return, he is in danger of being starved.

As for the Case of exilium de hominibus, it makes for the De­fendants purpose, for in the 1 Inst. 53. b. 'tis said, if Tenants be impoverished, that is an Exilium, and have not the States taken away the Doctors Livelyhood and impoverished him as much as they can? and therefore he had good cause to seek relief elsewhere.

Now the same cause continues still, for 'tis not found by the special Verdict that there was any reconciliation betwéen the States and him, or that he may have his Pension again, if he should re­turn, but on the contrary, that 'tis disposed of to another; and 'tis apparent that there was a great Friendship between the Testa­tor and the Defendant, who took notice of the Circumstances of Dr. Vossius's condition at that time, which is in no sort altered from what it was at the time of the making of the Will; so that by the Word restored nothing else could be intended by Dr. Brown, than when his Friend should have the favour of the States, and a com­fortable subsistence in his own Country.

[Page 227] 2. Dr. Vossius is not to be considered with any relation to the War, because he came into England before the War pro­claimed; neither doth it appear by the special Verdict that he was any wise concerned in it: If a Subject of England go in­to Holland, and a War break out, 'tis no restraint of his per­son if he be not active in it, for he may return as he hath opportu­nity so to do.

3. Admitting Dr. Vossius to be concerned in the War, yet the Peace ensuing can be no Restitution of him to his Coun­try, that only extinguishes the Hostility between the two Na­tions, and doth not restore the Doctor, who during the War ad­hered to the King of England, and so was a Rebel to the States; and for that reason a Peace shall not extend to pardon him.

4. Admitting the Doctor to be no Exile, then the Limitation in the Will is void, and a void Limitation is like a void Condi­tion, and then the Estate is absolute in him; if it had been a Condition precedent, as a Devise to him in case he was not an Exile, that had prevented the vesting of the Estate; but if the subsequent Limitation be impossible, they must shew on the other side that the Estate is determined.

Rainsford Chief Iustice was clear of Opinion, that the Estate doth continue in the Defendant by this Limitation, until the Circumstances of his Case, (as to the Favour of the States, and the offer of his Pension, or some competent way of Lively­hood) differ from what they did at the time of the making of the Will; and it doth not appear that there was any alteration of his Condition, nor any expectation of a Pension from the States now, more than he had at that time.

Whereupon in Michaelmas-Term following Iudgment was given for the Defendant Vossius by the Opinion of the whole Court of King's Bench.

Strangford versus Green.

IN an Action on the Case for Non-performance of an Award;Award that all Suits shall cease amounts to a Release. the Defendant having in behalf of himself and his Partner, referred all Differences and Controversies between the Plain­tiff and them to Arbitrators, and promised to perform their A­ward; which was, that all Suits which are prosecuted by the Plaintiff against the Defendant shall cease, and that he shall pay the Plaintiff so much, &c. And for Non-payment this Action was [Page 228] brought upon this special Declaration, to which the Defendant did demurr.

2 Cro. 639, 6631. Because the Submission was only of Matters concerning the Partnership, and the Award was that all Suits shall cease.

2. It was of all Matters between the Plaintiff and the Part­ner, and the Award is, that all Suits prosecuted against the De­fendant only shall cease.

3. The Award is not mutual; for the Defendant is to pay Mony, but the Plaintiff is to give no Release, 'tis only said that all Suits shall cease.

4. The other Partner is not made a Party to the Sub­mission.

2 Cro. 663.But these Exceptions were not allowed; for no difference shall be intended but what concerned the Plaintiff and the Defen­dant, as the Defendant was concerned with his Partner in Trade only, unless the contrary did appear; and if any such were they should be shewn on the other side.

And it shall be intended likewise that all Suits shall cease only between the Plaintiff and the Defendant, and that was an A­ward on both sides; for the awarding that all Suits shall cease hath the effect of a Release, and the Submission and Award may be pleaded in discharge as well as a Release; and likewise the Defendant may undertake for his Partner, and having engaged for him and promised that he should perform the Award on his part (notwithstanding the Partner is not bound so to do,) yet if he refuse 'tis a Breach of the Defendants promise, and so the Plaintiff had Iudgment upon the first Argument.

Sir John Shaw against a Burgess of Colchester.

THIS was upon a Tryal at the Barr wherein the Case was this, viz. The Plaintiff was a Serjeant at Law and Recor­der of Colchester, and the Defendants resolving to turn him out, procured Articles of Misdemeanour to be drawn against him, and then all who had liberty to vote proceeded to vote for and against him, and a Poll was granted to decide the Controversie, it not appearing upon the View which had the Majority of Votes; but before the Plaintiff had taken all the Names, and whilst he was taking of the Poll the Defendants took away the Paper, and would not suffer him to proceed; the Iury gave him 300 l. damages.

Trotter versus Blake. In Scaccario.

THIS was the Case of my Lord Hollis upon a Tryal at the Barr in the Exchequer in an Ejectione firmae, Ejectment will not lie for a For­feiture where the Tenant re­fused to pay a Fine be­ing doubt­ful. where­in the Case was this, viz.

The Lord Hollis was seised of the Mannor of Aldenham in the County of Hartford in Fee, and the Lands in question were held of the said Lord by Copy of Court Roll, and are parcel of the aforesaid Mannor.

That the Defendant was admitted Tenant, and a Fine of 8 l. imposed upon him for such admittance payable at three distinct payments; that the 8 l. was personally demanded of him by the Lord's Steward, and he refused payment; whereupon the Lord enters and seises the Estate for a Forfeiture, which he would not have insisted on, but that the obstinacy of the Defendant made it necessary for him to assert his Title and Right.

Mr. Walker, the Lord Hollis his Steward, being sworn gave E­vidence that a Fine of 8 l. was set upon the Defendant when he was admitted, and that the Lands to which he was admitted were usually lett for 7 l. per annum, so that the Fine was but a little more than a years value: That he himself demanded the 8 l. of the De­fendant being a Seafaring-man who refused to pay it. That he knew the Defendant to be the same person who was admitted to this Copyhold: That the Demand was made at the Stewards Chamber in Staple Inn, and because it was payable at three several days, he then demanded of him only 2 l. 13 s. 4 d. as a third part of the 8 l. and that he did enter upon the 25th day of November last for Non-payment of the said 2 l. 13 s. 4 d.

The Council for the Defendant insisted that the Steward ought to produce an Authority in Writing given to him by the Lord to make this Demand and Entry upon refusal,Ex parte Def. for the Lords owning it afterwards will not make a Forfeiture.

But the Court held clearly that there was no need of an ex­press Authority in Writing,Curia. and that it was not necessary for the Steward to make a Precept for the seizure, but that it was ne­cessary that the Demand should be personal.

The Reason why the Defendant refused to pay this Fine was, because he said that by a Decree and Survey made of this Man­nor in the Reign of Queen Elizabeth, the Fine to be paid for this Copyhold was setled, and it was but 3 l. and no more.

And Sir Francis Winnington Solicitor General said for the De­fendant, that the Case was very penal on his side, but that he would make it clear that there was no colour for the bringing of this Action either as to the Matter or the Form.

He said that the Mannor of Aldenham had not been long in this noble Lord, he came in as Purchaser or a Mortgagee under the Family of the Harvies whose Inheritance it was anciently; and there has been some doubt whilst it was in their possession what Fines were customary to be paid upon Descents and Aliena­tions, but that is now settled, and the Defendant was in the Case of a descent for which the Fine is not to be arbitrary at the Will of the Lord; but is reduced to a certainty in Queen Elizabeth's Reign by Consent and Agreement between the Lord and Tenants; and that a Survey was then made by vertue of a Commission directed to some Men of Credit and Worth in those days, who were impowred to set forth the quantity of Land and the value thereof, which was done accordingly; and it was then agreed that a year and an halfs value in case of a Descent, and two years value in case of an Alienation should be paid as a Fine to the Lord, and the proportion of the value was then computed by the Commissioners, and decreed by the Court of Chancery to be binding to the Lords and Tenants for ever.

The Question now is, how this years value shall be computed, the Lord would have it according to the improved value; the Te­nant will pay according as it was rated in Queen Elizabeth's time by those Commissioners: Now if this Land had decayed in va­lue the Tenant had still been obliged to pay a Fine according to the valuation of that time; and if so, it would be very unreasona­ble to make him pay for his Industry and Improvement of the Land now it is raised in value, because that was done by his La­bour and at his expence; so that the doubt being what Fine shall be paid, an Ejectione firmae will not lie, because the Matter is doubtful, and the Law gives the Tenant Liberty to contest it with the Lord and will never let him be under the peril of a For­feiture because he will not comply with the Lord to give up his Right without Law.

But the Lord hath another and a more proper remedy, for he may bring an Action of Debt for the Fine thus imposed, which will try the Right; and is not so penal to the Copyholder, which Point was lately resolved: And that if a Copyholder had a pro­bable cause to induce him to believe that he ought not to pay the Fine demanded, (let the Right be as it would) yet no Ejectment will lie; for it must be only in a plain Case that the Lord can enter for a Forfeiture.

For no Man forfeits his Estate, but by a wilful default in himself, such a Forfeiture as is done and presumed to be committed upon his own knowledge, but want of understand­ing cannot be made a wilful neglect. 'Tis true, the Decree in Chancery made here cannot vary the Law, but it may be Evidence of the Fact; for prima facie it shall be intended that such values have been paid time out of mind, because the Court have so decreed; but then when the Fine was declared to be certain, a doubt did arise how the years value shall be reckoned, which has been setled also by another Decree, and from that time all the respective Lords of this Mannour have taken Fines according to that value which is mentioned in the Survey, and this Lord himself hath taken Fines in pursuance of the same, so that 'tis clear the Fine cannot be Arbitrary; but be it so or not, 'tis not material to this purpose, because the Tenant hath a good and co­lourable ground to insist upon the Decree and Survey, and con­sequently there is no wilful Forfeiture.

The Lord Chief Baron agreed, That if it be a doubt, and the Tenant gives a probable Reason to make it appear that no more is due, than what he is ready to pay, 'tis no Forfeiture; but the Law in general presumes that the Fine is incertain, if the contra­ry is not shewed; now if the Tenants doubt did arise upon the equitableness of the Fine, in such case if he refuse to pay, 'tis a Forfeiture; but here it was whether it shall be paid according to the computed or improved value, and therefore he inclined that the Action would not lie.

The Exemplification of the Decree was offered to be read, which being opposed, Serjeant Maynard informed the Court that nothing was more usual, than to read a Sentence in the Ec­clesiastical Court, or a Decree in Chancery as Evidence of the Fact: It being allowed to be read, the Council for the Defen­dant took notice that the Commission was therein mentioned which was returned into Chancery, and burned when the Six Clerks Office was on fire, in the year 1618. but a Duplicate thereof was produced which the Defendant had from the Heir of the Harveys, and so the Survey was praied to be read, which was opopsed by Sir William Jones, for he said that it was no Duplicate, the Commissioners Names being all written with one Hand, and no proof being made that it was a true Co­py of that which was returned; he likewise observed upon the read­ing of the Decree, that it was an Evidence for the Plaintiff, be­cause if there had been a setled Rule for payment of the Fines, there had been no occasion to seek relief in Equity, and that there [Page 232] was no reason that the Defendant should come into a Court of Law to prove such Settlement by a Decree in Chancery, for if there be such a Decree his Remedy is proper there; besides, the Decree it self only mentions the years value, which was to be setled by the Commissioners, and which he said was never done, so that the Decree which appointed the Commission was not compleated, and therefore being but executory, is of no force even in Equity.

The Court were doubtful in the matter, and Baron Thur­land said, That no Action of Debt would lie for this Fine, be­cause it was neither upon the Contract, nor as ex quasi contractu: But as to that Serjeant Maynard answered, That many Reso­lutions had been made in his time of Cases, wherein the Old Books were silent.

Vpon the whole, the Court thought this to be a proper Case for Equity, and so directed a Iurour to be withdrawn, which was accordingly done.

DE Term. Sanctae Trin. Anno 29 Car. II. in Communi Banco.

Addison versus Sir John Otway.

IN a special Verdict in Ejectione firmae, A Parish and a Vill within the Parish of the same Name; a Recovery is suffered of Lands in the Vill, and in the Deed to lead the Uses, the Parish is na­med, they make but one Con­veyance, and the Lands in the Parish do pass. Mod. Rep. 250. the Case was thus, Viz. There was the Vill of Rippon, and the Pa­rish of the same Name; and likewise the Vill of Kirk­by, and the Parish of the same Name in the County of York. And Thomas Brathwaite being Tenant in Tail of the Lands in question, lying in the said Parishes of Rippon and Kirkby; did by Bargain and Sale convey the same, lying (as in truth they did) in the Parishes of Rippon and Kirkby, to the intent to make a Tenant to the Praecipe in order to suffer a Common Recovery, and thereby he did Covenant to suffer the same, which Recovery was afterwards suffered of Lands in Rip­pon and Kirkby, but doth not say (as he ought) in the Pa­rishes of Rippon and Kirkby; and the Verdict in effect found, That he had no Lands in the Vills; but farther, that it was the intent of the Parties, that the Lands in the Parishes should pass; and whether they should or not was the Question?

It was said for the Defendant, That by this Indenture and Common Recovery the Lands which lie in the said Parishes shall pass.

1. Supposing this to be in the Case of a Grant, there if the Vill is only named, yet the Lands in the Parish of the same Name shall pass, because the Grant of every Man shall be taken strongest against himself, Owen Rep. 61.

So where part of the Lands lie in B. and the Grant is of all the Lands in D. all the Lands in the Parish of D. shall pass, because in that Case the Parish shall be intended; and if the [Page 234] Law be thus in a Grant a fortiori in the Case of a Common Re­covery,Postea Barker and Keat. which is the Common Assurance of the Land.

2. The Verdict hath found that the Defendant had no Lands in the Vills of Rippon and Kirkby, and the Court will not in­tend that he had any there, if not found; so that nothing pas­ses by the Recovery, if the Lands in the Parishes do not pass, which is contrary to the intention of the Parties, and to the Rules of Law in the like Cases; for if a Man deviseth all his Lands in Dale, and hath both Free-hold and Lease-hold there, by this Devise the Freehold only passes, but if no Free-hold the Leases shall pass, Cro. Car. 293. So adjudged in the Case of Rose and Bartlet, for otherwise the Will would be void.

3. The Parish and Vill shall be both intended to support a Trial already had; as where a Venire facias ought to issue from the Parish of Dale, and it was awarded from Dale generally, 'tis well enough,1 Roll. Rep. 21, 27, 293. Hob. 6. 2 Cro. 263. 1 Roll. Rep. 27. A fortiori to support a Com­mon Recovery, which has always been favourably interpreted, and yet a new Tryal will help in the one case, but a Man cannot command a new Recovery when he will; and therefore the Iudges usually give Iudgments to support and maintain Com­mon Recoveries, that the Inheritances of the Subject might be preserved; for if there be Tenant in Tail, the Reversion in Fee, or if Baron and Feme suffer a Recovery, this is a bar of the Re­version, and the Dower, and yet the intended Recompence could not go to either, Pl. Com. 515. 2 Roll. Rep. 67. 5 Co. Dormer's Case.

Antea. 4. The Iury have found that the intention of the Parties was to pass the Lands in the Parishes, which Intention shall be equivalent to the Words Omitted: And for that there is a notable Case in 2 Roll. Rep. f. 245. where the intent of the Par­ties saved an Extinguishment of a Rent. The Case was, A. makes a Lease for years, rendring Rent, and then grants the Reversion for 40 years to B. and C. which he afterwards con­veyed to them and their Heirs by Bargain and Sale, and co­venanted to levy a Fine accordingly, to make them Tenants to the Praecipe, to suffer a Common Recovery to another Vse; the Bargain, Fine, and Recovery were all executed, and it was ad­judged that they made all but one Conveyance, and that the Re­version was not destroyed, and by consequence the Rent not extin­guished, for though the Bargainor might intend to destroy the Re­version, by making this Grant to them and their Heirs, yet the Bargainees could never have such Intention, and though they were now seised to another Vse, yet by the Statute of Wills, their former Right is saved which they had to their proper Vse; [Page 235] and their intention being only to make a Tenant to the Prae­cipe, the Statute shall be so construed that the intent of the Par­ties shall stand.

5. The Lands in the Parishes pass,1 Anders. 83. because the Deed and Common Recovery make but one Conveyance and Assurance in the Law; and therefore as a Construction is not to be made upon part, but upon the whole Deed, so not upon the Deed or Recovery alone, but upon both together, 2 Co. 75. Lord Crom­wel's Case.

6. Antea. 'Tis the Agreement of the Parties which governs Fines and Recoveries, and Lands shall pass by such Names as are agreed between them, though such Names are not proper; and therefore a Fine of a lieu conus is good, though neither Vill or Parish is named therein, Poph. 22. 1 Cro. 270, 276, 693. 2 Cro. 574.

So if a Fine be levied of a Common of Pasture in Dale, Cro. Car. 308. Winch 122. Sid. 190, 191. Antea. 'tis good, though Dale be neither Vill or Hamlet, or lieu conus out of a Vill 2 Roll. Abr. f. 19. So in Sir George Symonds his Case, Lands as parcel of a Mannor were adjudged to pass, though in truth they were used with the Manor but two years; and the reason of all these Cases is because it was the Agreement of the Parties that they should pass.

Object. If it be objected, That all these Authorities are in Cases of Fines, but the Case at Bar is in a Common Recovery, which makes a great difference.

Answ. The proceedings in both are amicable, and not adver­sary, and therefore as to this purpose there is no difference be­tween them, and for an Authority in the point, the Case of Le­ver and Hosier was cited, which was adjudged in this Court, Trin. 27 Car. 2 Where the Question was,Antea. whether upon a Com­mon Recovery suffered of Lands in the Town of Sale or the Li­berty thereof, Lands lying in Dale, being a distinct Vill, in the Parish of Sale should pass or not; and after divers Arguments it was allowed to be well enough, being in the Case of a Com­mon Recovery: And so was the Case, Pasch. 16 Car. 2. in B. R. In a special Verdict the Case was, That Sir Thomas Thinn be­ing seised of the Mannor of Buckland in Tail, and of twenty Acres of Land, called and known by a particular name, which twenty Acres of Land were in Ed. the 6th's time reputed parcel of the said Mannor, and always used with it;Sid. 190. sold the said Man­nor and all the Lands reputed parcel thereof, with the Appur­tenances, of which he did suffer a Common Recovery; and it was adjudged upon great consideration, that though the Reco­very did not mention the twenty Acres particularly, yet it did [Page 236] dock the Entail thereof, because the Indenture which leads the Vses of the Recovery was of the Lands reputed parcel there­of, or enjoyed with it, and that the shortness in the Recovery was well supplied by the Deed; in which Case the Court were guided by the resolution in Sir George Symond's Case. Vide 6 Co. Sir Moyle Finch's Case.

The Authorities against this Opinion are two.

Antea, Lever and Hosie [...] 1. That of Stock versus Fox, Cro. Jac. 120. There were two Vills, Walton and Street in the Parish of Street, and a Fine was levied of Lands in Street; it was adjudged that the Lands in Walton did not pass by this Fine.

But there is another Report of this very Case, by my Lord Chief Iustice Roll in his Abr. tit. Grants 54. where 'tis said, if there be in the County of Somerset the Vill of Street, and the Vill of Waltham within the Parish of Street, and a Man being seised of Lands in the Vill of Street, and of other Lands in the Vill of Waltham, all within the Parish of Street; and he Bargains and Sells all his Lands in Street, and having Cove­nanted to levie a Fine, doth accordingly levie it of Lands in Street, and doth not mention either in the Indenture or in the Fine any Lands in Waltham, the Lands lying there shall not pass; from which Report there may be a fair Inference made, That it was the Lord Rolls his Opinion, that if Waltham had been named in the Indenture, though not in the Fine, the Lands would have passed; and in this Case the Parishes are named in the Indenture of Bargain and Sale; but besides in that Case the Party had Lands both in Street and Waltham, and so the Conveyances were not in vain, as they must be here if the Lands in the Parishes do not pass.

Antea. 2. The other Case is that of Baker and Johnson in Hutton 106.

But this Case is quite different from that, because there was neither Vill or Parish named in the Indenture; but here the Indenture was right, for the Lands are mentioned therein to lie in the Parishes, &c. And for these Reasons Iudgment was prayed for the Defendant.

This Case was afterwards argued in Michaelmas-Term fol­lowing, by Serjeant Pemberton and Maynard for the Plaintiff, who said,

Ex parte Quer.That the Government of this Nation was Ecclesiastical and Civil; the Ecclesiastical runs by Parishes, and the Civil by Vills; That a Parish is constituted by the Ecclesiastical Power, and may be altered by the King and Ordinary of the place, that the Parson was superintendent of the Parish, and the Consta­ble of the Vill, which was also constituted by the Civil Magi­strate; [Page 237] and from hence it is, that in real Actions which are ad­versary, Lands ought not to be demanded as lying in a Parish, but within a Vill, that being the place known to the Civil Iu­risdiction; and if a Trespass which is local be laid at Dale ge­nerally, there being both the Parish and Vill of Dale, the proof of the Trespass done in the Parish is not good, for it must be at the Vil.

They agreed, that in conveying of Lands a Fine or Common Recovery of Lands in a Parish or Lieu conus was good, 2 Cro. 574. But if there be both a Vill and a Parish of the same Name and severally bounded, if the Vill be only named without the Parish, nothing doth pass, but what is in the Vill, because where a place is alledged in Pleading it must be of a Vill, Moor 710. 1 Inst. 125. b. 2 Cro. 121.

And this was the ancient way of demanding Lands in a Prae­cipe quod reddat, because of the Notoriety of Vills from whence Visnes do arise; and because the Vill is more particular and of more certainty than a Parish, and therefore 'tis requisite that the Demandant should be very particular in his Demand, that the Tenant may know how to make his defence, and the Sheriff of what to deliver possession.

Besides a Vill is more ancient than a Parish, and Lands have been demanded within them time out of mind, so that the Demand (when 'tis doubtful of what 'tis made) shall be sup­posed of that which is most ancient; and such Construction is most conformable to the like Cases, for Additio probat Minori­tatem; and therefore if Father and Son are both of one Name, and mention is made of one without an addition of Junior the Law intends the Father; so the Vill being more ancient than the Parish, that shall be intended if the Parish is not named.

In 2 Anderson 124. Hartwel, Rode and Ashen were several Vills in the Parish of Rode, the King granted all his Tythes in Rode and Ashen in tenura Richardi Wake, and at the time of the Grant the Tythes of Hartwel were in the Tenure of Wake; it was adjudged in the King's Bench that the Tythes in Hartwel did pass, but that Iudgment was reversed in the Exchequer Chamber, because Rode could not beIn a Prae­cipe it must be intended a Vill if a Parish be not named, because Vills are known at the Com­mon Law, but not Pa­rishes, those were con­stituted by the Coun­cil of Lyons, but 'tis o­therwise in Grants. Owen 61. intended a Parish and so to comprehend Hartwel, but must be intended a Vill distinct from a Parish; and so the Tythes of Hartwel being also a Vill could not pass by the Grant of them in Rode; this also was the O­pinion of Popham, Owen 60. But Gawdy and Fenner were of another Opinion.

As to the finding of the Iury, that doth not help if the Re­covery be not full, for they may expound, but they cannot en­large [Page 238] each other; In a Formedon, nient comprise in the Record and not what is comprised in the Deed is the Plea. Things upon a Record are open to the View of all People, but a Deed is a Pocket Record, and the persons whom it concerneth cannot come at the sight of it; so Fines are open and to be seen by all, and are to be proclaimed, but according to this Interpretation Déeds should be also proclaimed.

And there is a manifest difference between things conteined in a Fine and in a Déed; for a Fine of a Tenement is not good, but a Deed of a Tenement is well enough, but will not help the Fine; and therefore Men should not go out of the Rules of the Law to help a Mistake: For which Reasons they prayed Iudgment for the Plaintiff.

But the whole Court were of Opinion that the Lands in the Parishes did well pass; for as Fines and Recoveries did grow in use, and are now become Common Assurances, they are to be favoured in the Law: And it hath been a Rule, that even in doubtful things Constructions shall be made to support a Deed if possible, Ut res magis valeat quam pereat, Co. Lit. 183.

By Rippon generally the Vill shall be intended, but stabitur praesumptio donec probetur in contrarium, and that is proved by the Deed which shews where the Lands lye.

Indenture by an In­fant to de­clare Uses of a Fine or Recovery, make but one Con­veyance, otherwise he might avoid it as he may a Deed by Infancy. Hob. f. 6. 2 Cro. 676Both the Indenture and Recovery being one Conveyance, must be expounded so that every part may stand; besides 'tis ap­parent by the intent of the Parties (which the Iury have also found) that the Lands in the Parishes should pass.

In the Case of Brock and Spencer a Trespass was laid in Hursly, and it was not said whether Vill or Parish; the De­fendant pleaded that the Lands were held of the Mannor of Mar­den in the Parish of Hursley, &c. and the Venire Facias was de Vicineto only, and not de Vicineto Parochiae Hursley, and it was adjudged good, for the Vill and the Parish shall be understood to be the same.

And as to this purpose they were all of Opinion that there was no difference between a Fine and Recovery; 'tis true, the Law originally took notice of a Vill only, because the division of a County into Parishes was of Ecclesiastical distribution; but now by process of time that distinction is taken notice of in in Civil Affairs; and the Law hath great regard to the Vsage and Practice of the People, the Law it self being nothing else but common Vsage, with which it complies, and alters with the exigency of Affairs; it was but lately that the Cursitors would put the Word Parish into a Writ; for if a Note was delivered [Page 239] to them of Lands in the Parish of Dale, they used always to make it of Lands in Dale, till the Court ordered them to do otherwise; so that though the Common Vsage was so formerly 'tis now otherwise, and the Reason of things changing the things themselves also change.

And if this Recovery should not be construed to pass the Lands, the intention of the Parties would faile; 'tis true there is no Authority express in the point to guide this Iudgment, nor is there any against it; but if such should be, the Opinion of the Court is not to be bound against apparent Right; and 'tis for the honour of the Law that Men should enjoy their Bargains according as they intended; for which Reasons Iudg­ment was given for the Defendant.

Goffe versus Elkin.

THE Condition of a Bond was,Affirmative Plea where it ought to be particu­lar, where not. That if the Plaintiff shall seal to the Defendant a good and sufficient Conveyance in the Law of his Lands in Jamaica, with usual Covenants in such manner as by the Defendants Council shall be advised; then if the Defendant should thereupon pay unto the Plaintiff such a Sum of Mony, &c. the Condition should be void: In Debt brought upon this Bond, the Defendant (after Dyer of the Con­dition) pleads that Mr. Wade a Councellor at Law, did advise a Deed of Bargain and Sale from the Plaintiff to the Defendant with the usual Covenants, of all his Lands in Jamaica, and ten­dred the Conveyance to the Plaintiff, who refused to seal the same, and so would discharge himself of the Condition, the Mony be­ing not to be paid unless the Assurance made.

To this Plea the Plaintiff demurred by Serjeant George Strode.

1. Because the Defendant hath not shewed the Conveyance, and an affirmative Plea ought to be particular, and not so ge­neral as this; for to plead generally quod exoneravit is not good, but it must be shewed how; and so it was adjudged in the Case of2 Cro. 165, 359, 363, 503, 634. Sid. 106. 2 Co. 4. a. Cro. Car. 383, 384. 2 Leon. 214. Horseman and Obbius, where the Condition was to indempnifie Lands from the yearly Rent of 20 l. during the Demise; the Defendant pleaded quod à tempore confectionis scripti obligatorii hucusque exoneravit, &c. And upon Demurrer as here, it was held no good Plea.

[Page 240] 2. The Matter of the Condition consists both of Law and Fact, and both ought to be set out; the preparing of the Deed is Matter of Fact, and the Reasonableness and Validity thereof is Matter of Law, and therefore they ought to be set forth that the Court may judge thereof.

Hob. 107.In 22 E. 4.40. The Condition of a Bond was, that the De­fendant should shew the Plaintiff a sufficient discharge of an An­nuity, who pleaded that he tendered a good and sufficient discharge in general without setting it forth; it was not good.

Mod. Rep. 67.3. The Plea is, that the Indenture had the usual Covenants, but doth not set them forth, and for that cause 'tis also too ge­neral.

In 26 H. 8. 1. The Condition was for the performance of Cove­nants, one whereof was, that he should make such an Estate to the Plaintiff as his Council should advise: The Defendant pleaded that he did make such Conveiance as the Council of the Plaintiff did advise, and the Plea was held ill and too general, because he shewed not the Nature of the Conveyance, and yet performance was pleaded according to the Covenant.

But notwithstanding these Exceptions the whole Court were of Opinion that this Plea was good; for if the Defendant had set forth the whole Deed verbatim, yet because the Lands are in Jamaica, and the Covenants are intended such as are usual there, the Court cannot judge of them, but they must be tried by the Iury.

He hath set forth that the Conveyance was by a Deed of Bar­gain and Sale, which is well enough; and so it had been if by Grant, because the Lands lying in Jamaica pass by Grant, and no Livery and Seisin is necessary; if any Covenants were un­reasonable and not usual they are to be shewed on the other side: And so Iudgment was given for the Defendant.

Spring versus Eve.

Verdict cures the misrecital of the time of the Ses­sion of Par­liament.DEBT upon the Statute of 29 Eliz. cap 4. by the Sheriff for his Fées for serving of an Execution: After Verdict for the Plaintiff, it was moved in an arrest of Iudgment by Serjeant Pemberton, because the time of holding the Parliament was mis-recited, being mistaken in both the Statute Books of Poulton and Keble as it appeared by the Parliament Roll, where­upon Iudgment was staied till this Term; and the Court had Copies out of the Rolls of the time when the Parliament was [Page 241] held, and they were all clear of Opinion that the time was mis­taken in the Declaration, and so are all the Presidents; for the Plaintiff here declared, that this Statute was made at a Session of Parliament by Prorogation held at Westminster, 15 Febr. 29 Eliz. and there continued till the dissolution of the same; whereas in truth the Parliament began 29 Octob. and not on the 15th of February; for it was adjourned from that time to the 15th of February, and then continued till it was dissolved.

My Lord Coke in his 4th Institutes fol. 7. takes notice of this mistake in the printed Books.

But the Court were all of Opinion,Curia. that though it was mis­taken and ought to have been otherwise, yet being afterDyer 95. Yelvert. 127. 2 Cro. 111. pl. 9. Br. Abr. tit. Parl. 87. Verdict 'tis well enough, and the rather because this is a particular Act of Parliament, and so they are not bound to take notice of it; and therefore if it be mistaken the Defendant ought to have pleaded Nul tiel Record; but since he hath admitted it by Plead­ing they will intend that there is such a Statute as the Plain­tiff hath alledged, and they could not judicially take notice of the contrary.

The Serjeant perceiving the Opinion of the Court desired time to speak to it being a new Point, and told the Court that they ought to take notice of the Commencement of private Acts, which the whole Court denyed.

And the Chief Iustice said, that they were not bound to take notice of the Commencement of a general Act, for the Court was only to expound it; and though this had not been in the Case of a particular Act (where 'tis clear the Defendant ought to plead Nul tiel record) yet being after Verdict 'tis well enough, because the Party took no benefit of it upon the Demurrer, and because of the multiplicity of Presidents which run that way.

So in the Case upon the Statute of Tythes, though it be mistaken, yet it hath often been held good; as if an Action be brought upon that Statute for not setting out of Tythes, decla­ring quod cum quarto die Novembris anno secundo Edw. 6. It was Enacted, &c. and the Parliament began 1 Ed. 6. and was continued by Prorogation until 4 Novembris, yet this hath of­ten been held good, and Multitudo errantium tollit peccatum.

And though in this Case the Parliament was adjourned, but in that upon the Statute of Ed. 6. it was prorogued, yet the Chief Iustice said, that as to this purpose there was but little difference between an Adjournment and a Prorogation; for an Adjournment is properly where the House adjourn themselves, and a Proroga­tion is when the King adjourns them.

But Iustice Atkins doubted whether the Court ought not to take notice of the Commencement of a general Act, and could have wished that there had been no such resolution as there was in the Case of Partridge and Strange in Pl. Commentaries; for that he was satisfied with the Argument of Serjeant Morgan in that Case, who argued against that Iudgment, and held that he, who vouched a Record and varies either in the Year or Term hath failed of his Record: But since there had been so many Authoritis since in confirmation of that Case he would say nothing against it.

But he held that there was a manifest difference betwéen an Adjournment and a Prorogation; for an Adjournment makes a Session continue; but after a Prorogation all must begin de novo; and that an Adjournment is not always made by themselves, for the Chancellor hath adjourned the House of Péers ex mandato Domini Regis; and Queen Elizabeth adjourned the House of Com­mons by Commission under the Great Seal.4 Iust. 7

Mires versus Solebay.

Servant shall not be charged in Trover for taking Goods by the Com­mand of his Master.IN a Special Verdict in Trover and Conversion, the Case was this, viz.

H. being possessed of several Sheep sells them in a Market to Alston, but did not deliver them to the Vendée, and afterwards in that very Market they discharge each other of this Contract, and a new Agreément was made between them, which was, that Alston should drive the Sheep home and depasture them till such a time, and that during that time H. would pay him so much every Week for their Pasture; and if at the end of that time (then agreed between them) Alston would pay H. so much for his Sheep (being a price then also agreed on) that then Alston should have them.

Before the time was expired H. sells the Sheep to the Plain­tiff Mires, and afterwards Alston sells them to one Marwood, who brought a Replevin against the Plaintiff for taking of the Sheep; and the Officers together with Solebay the Defendant (who was [Page 243] Servant to Marwood) did by his Order, and in assistance of the Officers drive the Sheep to Marwood's Grounds where they left them.

The Plaintiff demands the Sheep of Solebay, and upon his re­fusal to deliver them, brings this Action against the Servant, and whether it would lye or not was the Question.

It was urged at the Barr, that the Action would not lie against the Defendant, because he had not the possession of the Goods at the time of the Action brought; for he presently put them into his Masters Ground: And it was said, if A. find Goods and S. takes them away before the Action brought Trover will not lie against A. but 'tis otherwise, if he sell them.

In this Case it would have been a Breach of Trust in the Servant to have delivered the Goods belonging to his Master, to another: 'Tis true, if there be a Conversion, though the possession be removed before the Action brought, yet the Action will lie, but that is because of the Conversion.

Many Cases were put where the Servant is not lyable to an Action for a thing done by the Command of his Master; and where a Bayliff, who is but a Servant to the Sheriff, shall not be charged in a false Return made by his Master, Cro. Eliz. 181. 1 Roll. Abr. 94, 95. So if a Smiths Man prick an Horse, the Action lies against the Master and not against the Servant.

The Court before they delivered any Iudgment in this Case premised these two things: viz.

1. That 'tis necessary in Trover to prove a Property in the Plaintiff, and a Trover and Conversion in the Defendant: And it was said by Iustice Atkins (but denied by the Chief Iustice) that though Goods are sold in a Market, yet the property is not changed till the delivery, for which he cited Keilway 59, 77.

But the Court held clearly in this Case, that the first Sale to Alston was defeated by the Agreement of the Parties afterwards; for when a Bargain is made, and all the Parties consent to dis­solve it, and other Conditions are proposed, the new Agreement destroys the former Bargain. And the Chief Iustice said, that if an Horse was bought in a Market, for which the Vendeé is to pay 10 l. if the ready Mony be not paid the property is not altered, but the Party may sell him to another.

2. This new Agréement to have the Sheep, if Alston would pay such a Sum of Mony at a future day, will not amount to a Sale, and the new property is changed, and consequently the Sale by H. to the Plaintiff before the day is good, and so the property of the Sheep is in him.

But by the Opinion of the whole Court the Action would not lie against the Defendant.

1. The Defendant could be guilty of no Conversion, unless the driving the Cattle by vertue of the Replevin would make him guilty; but at that time the Sheep were in custodia Legis, and the Law did then preserve them so that no property can be changed, and if so, then there could be no Conversion.

2. The Action will not lie against the Servant, for it being in Obedience to his Master's Command, though he had no Title, yet he shall be excused: And this Rule Iustice Scroggs said would extend to all Cases where the Master's Command was not to do an apparent Wrong; for if the Master's Case de­pended upon a Title, be it true or not, 'tis enough to excuse the Servant; for otherwise it would be a mischievous thing, if the Servant upon all occasions must be satisfied with his Ma­ster's Title and Right before he obey his Commands; and 'tis very requisite that he should be satisfied if an Action should lie against him for what he doth in Obedience to his Master: But it was said, theWyne and Rider, antea. Servant cannot plead the Command of his Master in Barr of a Trespass; and it was likewise said, that in this Case the driving of the Cattle by the Servant to the Grounds of his Master, or a Strangers helping to drive them without being requested, is justifiable.

3. Because what was done by the Defendant was done in Exe­cution of the Process of the Law, and he might as well justifie as the Officer; for if he forbid the Defendant to have assisted him, yet his assisting him afterwards would not have made him guilty, because done in Execution of the Law.

4. Because 'tis not found that the Servant did convert the Sheep to his own use; for the special Verdict only finds the De­mand and the Refusal, which is no Conversion; and though 'tis an Evidence of it to a Iury, yet 'tis not Matter upon which the Court can give Iudgment of a Conversion, 10 Co. 57.

And therefore the Iury should have found the Conversion as well as the Demand and Refusal,2 Bulstr. 313. 1 Roll. Abr. 5. like the Case in 2 Roll. Abr. 693. In an Assise of Rent seek, upon Nul tort pleaded the Iury found a Demand and Refusal, & sic disseisivit; it was held to be no good Verdict, for the Demand ought to have been found on the Land, and shall not be so intended unless found.

The Plaintiff here hath set forth in his Declaration a Request to deliver; then a Refusal and Conversion too, which shews that they ought to be found, because distinct things; and the finding of the Demand and Refusal was only a presumptive, not a con­clusive [Page 245] proof of the conversion; and if the Iury themselves know that there was no conversion, yet the Plaintiff hath failed in his Action; as if a Trover be brought for cutting Trees and carry­ing of them away, and the Iury know that though the Defendant cut them down, yet they still lay in the Plaintiffs Close, this is no conversion.

And though it hath been strongly insisted at the Bar, that the Court shall intend a conversion unless the contrary appear­ed, and are to direct a Iury to find the demand and refusal to be a conversion, and the Opinion of Dodridge and Croke, in 1 Roll. Rep. 60. was much relied on, where Adams recove­red against Lewis 40 l. in the Court of Exon, and three Butts of Sack were taken in Execution, and the Plaintiff deposited 22 l in the Hands of the Defendent to prevent the Sale of the Sack, which was to be a pledge to return it upon re­quest, if the Defendant was not paid before the next Court day; the Iury found the Debt was not paid, and that no re­quest was made to return the Sack, but that the Plaintiff re­quested the Defendant to return the Mony: Yet it was held by those two Iustices, That the Law would supply the proof of aBulstr. 308. Cro. Eliz. 495. Golds. 152. Moor 460. Stiles 361. conversion though it was not found, for it shall be presumed that the Mony was denied to the Plaintiff, and that the Defendant might use it himself; and because no other proof could be made, that very denial shall be a conversion in Law; so a denial of a Rent Seck after demand is a disseisin,Pl. Com. 92. b. much more in personal Actions where the substance is found, 'tis well enough, 1 Inst. 282. a.

But the Court said, That notwithstanding this Authority, they would not intend a Conversion, unless the Iury had found it, especially in this Case, because they ought to have found it to make the Servant lyable, for if the conversion was to the use of his Master, there is no colour for this Action to be brought against the Defendant, but it ought to be brought against the Ma­ster.

Whereupon a Ve. fa. de novo was prayed to help the Insuffi­ciency of the Verdict, the conversion not being found; but the Court said it was to no purpose to grant a new Tryal, unless the Plaintiff had a new Case; and so Iudgment was given for the Defendant.

Bill versus Nicholl.

Variance between the Record pleaded and the Record it self.IN an Action brought in the Court of Exchequer, the De­fendant pleaded another Action depending against him for the same matter in the Common Pleas, and upon nul tiel Record re­plied by the Paintiff, a Day was given to bring in the Record, and when it was brought in it appeared that there was a variance between the Record in the Common Pleas, as mentioned in the Defendants Plea, and the Record it self; for the Defendant in his Plea had alledged one Gerrard to be Attorny instead of Gar­diner, who was Attorny upon Record, and whether this was a failure or not of the Record, was the question.

It was said on the Defendants side, that it was such a vari­ance, that it made it quite another Action; and on the Plain­tiffs side it was said, that an immaterial variance will not pre­judice where the substance is found, 7 H. 4. 1. Bro. Failure, pl. 2. 15. Curia advisare vult.

Forest qui tam, &c. versus Wire.

Action lyes in the Courts at Westminster, upon the Statute of 5 Eliz. but not an In­formation. 3 Cro. 316.DEBT upon the Statute of 5 Eliz. cap. 4. for using the Trade of a Silk Weaver in London, not having been an Ap­prentice seven years; the Action was brought in this Court, and laid in London, and tried by Nisi prius, and a Verdict for the Defendant; and now the Plaintiff to prevent the payment of Costs, moved by Mr. Ward against his own Action, and said, that it will not lye upon this Statute in any of the Courts of Westminster; for 'tis not only to be laid (as here) in the proper County, but 'tis to be brought before the Iustices in their Sessions, and this is by force of the Statute made 31 Eliz. cap. 4. and 21 Jac. cap. 4. Which Enacts, That all Informations upon Penal Statutes must be brought before the Justices of the Peace, in the County where the Fact was committed.

But the Court were clear of2 Cro. 178. Stiles 383. By the Opinion of Rolls, Cro. Car. 112. Opinion, That the Action may be brought in any of the Courts of Westminster, who have a concurring Iurisdiction with the Iustices, and so they said it hath been often resolved.

Attorny General versus Alston.

AN Inquisition upon an Accompt stated went out to inquire what Lands one Havers had in the twentieth year of this King, or at any time since,Where the Kings Title is not pre­cedent to that of the Ter-te­nant, the Lands of his Receiver shall not be liable by the Statute of the 13th Eliz. he being the Receiver General in the Counties of Norfolk and Huntingdon.

The Iury found that he was seised of such Lands, &c. where­upon an Extent goes out to seise them into the Kings Hands, for payment of 1100 l. which he owed to the King.

Alston the Ter-tenant pleads that Havers was indebted to him, and that he was seised of those Lands in 20 Car. 1. which was before the Debt contracted with him, and that he became a Bank­rupt likewise before he was indebted to the King, and thereup­on these Lands were conveyed to the Defendant by assignment from the Commissioners of Bankrupcy, for the Debt due to him from Havers, absque hoc that he was seised of these Lands at the time he became indebted to the King.

The Attorny General replies, That he was seised of these Lands before the Commisson of Bankrupcy issued, and before he be­came a Bankrupt, and that at the time of his Seisin he was Receiver, and accountable for the receipt to the King, and being so seised in the 20the year of this present King, he was found in Arrear 1100 l. for the payment whereof he was chargeable by the Statute of the 13 Eliz. cap. 4. Which subjects all the Lands of a Receiver which he hath or shall have in him during the time he remains accomptable, and so prays that the Kings Hands may not be amoved: To this the Defendant demurred.

And Sawyer for him held, that the Replication was ill both in form and Substance.

1. It doth not appear that the Defendant continued Receiver from the time he was first made, as it ought to be, or else that he was Receiver during his Life; for if a Man is Receiver to the King, and is not indebted but is clear, and sells his Land and ceases to be Receiver, and afterwards is appointed to be Receiver again, and then a Debt is contracted with the King, the former Sale is good.

2. The Replication is a departure from the Inquisition, which is the Kings Title, for the Lands of which Inquiry was to be made, were such which Havers had 20 Car. 2. And the De­fendant shews that Havers was not then seised thereof, but makes [Page 248] a good Title to himself, by Indenture of Bargain and Sale made to him by the Commissioners of Bankrupcy, and so the Attorny General cannot come again to set up a Title prece­dent to the Defendant, for that is a departure; 'tis enough for the Defendant that he hath avoided the Kings Title, as alledged; and though Mr. Attorny is not bound to take Issue up­on the Traverse, yet he cannot avoid waveing both the Title of the Defendant and the King, by insisting upon a new matter.

It was agreed, That the King had two Titles, and might either have brought his Inquisition grounded upon the Debt stated, or upon the Statute of the 13th of Eliz. upon Ha­vers his becoming Receiver; but when he hath determined his Election, by grounding it upon the Debt stated, he cannot af­terwards have recourse to the other matter, and bring him to be liable from the time of his being Receiver; as if an Inqui­sition goes to inquire what Lands the Debtor of the King had such a day when he entred into a Bond, if there be an answer given to that, Mr. Attorny cannot afterwards set up a precedent Bond, because 'tis a departure, and the Statute it self vests no Estate in the King, but makes the Receivers Lands lyable as if he had entred intred into a Statute Staple.

The Inquisition therefore should have been grounded upon the Statute, and then the Defendant might have pleaded the Act of Indempnity, of which he might have the benefit, but if not he may be let into the Equity of the Statute of the 33 H. 8. cap. 39. which gives liberty to Purchasers to have contribution, and to plead sufficient matter if they have any in discharge of the Debt.

Ex parte Quer.But on the other side it was said that the Replication was good, for if the Sale was after his being Receiver, though before he became indebted, yet by the Statute of the 13 Eliz. the Lands are subject to a Debt contracted afterwards, because it hath a Retrospect to the time he was first Receiver.

Pl. Com. 321. Dyer 160.By the Common Law both the Body and Lands of the Kings Debtor were lyable from the time he became indebted; but because such Debtors oftentimes sold those Lands which they had whilst they were Officers, and so the King was defeated, therefore was this Statute made to supply that defect of the Common Law, by which Statute all the Lands he had at any time during his continuance in the Office were made lyable.

And though it may be objected, That because of this Inqui­sition the King is limited to a time, Viz. that inquiry should be [Page 249] made what Lands Havers had in the 20th year of the King, yet it was said the Inquiry may be general.

The Elegit anciently left out the time, because the Law doth determine from what time the party doth become lyable; so that the question is about the King's Title, which if it appear to precede that of the Ter-tenant, then the King's Hands are not to be amoved; and thereupon Iudgment was prayed for him, Bro. Prerogative 59. Curia adversare vult.

Barker versus Keat.

IN a Special Verdict in Ejectione firmae, Reservati­on of a Pep­per Corn a good con­sideration to raise an use to make a Tenant to the Praecipe. Mod. Rep. 262 the Iury made a special Conclusion by referring to the Court, whether there was a good Tenant to the Praecipe or not, which was made by a Bargain and Sale, but no Mony paid, nor any Rent re­served but that of a Pepper Corn, to be paid at the end of six Months, upon demand, and the Release and Grant of the Re­version thereupon was only for divers good Considerations.

The Question was if this Lease upon which no Rent was re­served, but that of a Pepper Corn, be executed by the Statue of Uses or not, if it be,Cro. Jac. 604. Jones 7. 1 Cro. 110. 5 Rep. 124. b. then there is no need of the Entry of the Lessee, for the Statute will put him in actual possession, and then the Inheritance by the Release or Grant of the Reversion will pass.

But if this Lease be not within the Statute, because no Vse can be raised for want of a Consideration, then it must be a Con­veyance at the Common Law,Lit. Sect. 465. Co. Lit. 46. b. and so the Lessee ought to make an actual Entry as was always usual before the making of the Statute.

Serjeant Waller and Maynard argued that here was no Con­sideration to raise an Vse, for the reservation of a Pepper-Corn is no profit to the Lessor, 'tis not a real and good Rent; For so small and trivial a matter is no Consideration, for that which must be a good Consideration ought to be Mony, or some other valuable thing.

Then this Conveyance is not executed by the Statute of Vses, and if so 'tis not good at the Common Law, it being only a Lease for years, and no Entry, without which there can be no possession, and if not then there can be no Reversion upon which the Release may operate, 'tis only an interresse ter­mini, and so was the Opinion of my Lord Coke since theCo. Lit. 270. making of this Statute.

1 Leon. 194, 195.And that no Vse was raised here, the Case of my Lord Pa­get was cited, to which this was compared; My Lord being seised in Fee, Covenanted to stand seised to the Vse of Tren­tham and others, in consideration of payment of his Debts out of the Profits of his own Estate, this was adjudged a void Vse, because there was no consideration on Trentham's part to raise it, the Mony appointed to be paid, being to be raised out of the Profits of my Lords Estate.

The Words of the Lease are Demise, Grant, &c. which are Words at the Common Law, Co. Lit. 45. b. and 'tis not possible that a future executory Consideration should raise a present Vse, for the Pepper Corn is not to be paid till the end of six Months; and as this Consideration is executory, so it is contingent too, for the Lessor might have released before the expiration of the six Months.

If the Case ofCro. Jac. 604. pl. 32. Lutwitch and Mitton be objected, where it was resolved by the two Chief Iustices and Chief Baron, that upon a Deed of Bargain and Sale of Lands, where the Bar­gainee never entred, and the Bargainor reciting the Lease, did grant the Reversion expectant upon it;Cro. Car. 110, 400. that this was a good grant of the Reversion, from which the Possession was immediately di­vided, and was executed and vested in the Bargainee, by vir­tue of the Statute of Vses.

This is no Objection to the purpose, because in that Case the Bargainor was himself in actual possession.

So that if there be no good Tenant to the Precipe in this Case, though all that joyn in it are Estopped to say so, yet the Tenant in Tail who comes in above, is not barred, 5 H. 5. 9.

But on the othe side it was said, that the Lessee was in pos­session by the Statute, for the Word Grant being in the Lease, and the reservation being a Pepper Corn, that will amount to a Bargain and Sale, though it hath not those precise words in it, 8 Co. 94.

Pl. Com. 308. Dyer 146. b. contra.But if it should not, yet another Vse may be averred than what is in this Lease, like Bedel's Case, 7 Co. 40. b. Where a Man in consideration of Fatherly Love to his eldest Son, did covenant to stand seised to the Vse of him in Tail, and after­wards to the use of his second Son; there, though the consi­deration respected his eldest Son only in Words, yet a conside­ration which is not repugnant to it, may be averred; and though an Entry is not found, yet it shall not be intended, since the Iu­ry have not found the contrary.

North Chief Iustice, At first when this sort of Conveyance was used, the Lessee upon the Lease for a year, did always make an actual Entry, and then came the Release to convey the Re­version; but that being found troublesome, the constant Practice was to make the Lease for a year, by the Deed of Bargain and Sale, for the consideration of five shillings or some other small sum, and this was held and is so still to be good without any actual Entry,2 Cro. 604. and the Bargaineé thereby is capable of a Release (though he cannot bring an Action of Trespass without Entry) for when Mony is the Consideration of making the Bargain and Sale, 'tis executed by the Statute of Vses, and so the Re­lease upon it is good; but if the Deed be not executed, 'tis otherwise.

But this being to support a Common Recovery,Antea Addi­son and Ot­way. was to be fa­voured; and therefore the Court took time to consider till the next Term; and then

The Chief Iustice said, That if a real Action be brought against A. who is not Tenant to the Praecipe, and a Recovery be had against him, the Sheriff can turn him out who is in pos­session; but if he who is not in possession comes in by Voucher, he is estopped to say afterwards that he was not party to the Writ, so that he who is bound must be Tenant or Vouchee, or claim under them.

Conveyances have been altered, not so much by the Know­ledge of the Learned, as by the Ignorance of Vnskilful Men in their Profession.

The usual Conveyance at Common Law, was by Feoffment, to which Livery and Seisin were necessary, the Possession being given thereby to the Feoffee;Antea Lord Salisburies Case. but if there was a Tenant in Possession and so Livery could not be made, then the Rever­sion was granted, and the particular Tenant always attorned, and upon the same reason it was that afterwards a Lease and Release was held a good Conveyance to pass an Estate, but at that time it was made no question but that the Lessee was to be in actual Possession before the Release.

Afterwards Vses came to be frequent, and Settlements to Vses were very common, by reason whereof many inconveni­encies were introduced, to prevent which the Statute of the 27th of H. 8. was made, by which the Vse was united to the Possession; for before that Statute Vses were to be executed ac­cording to the Rules of Equity, but now they are reduced to the Common Law, and are of more certainty, and therefore are to be construed according to the Rules of Law.

At the Common Law when an Estate did not pass by Feffo­ment, the Lessor or Vendor made a Lease for years, and the Lessee actually entred, and then the Lessor granted the Reversion to another, and the Lessee attorned, and this was good.

Afterwards when an Inheritance was to be granted, then al­so was a Lease for years usually made, and the Lessee entred as before, and then the Lessor released to him, and this was good.

But after the Statute of Vses, it became an Opinion, That if a Lease for years was made upon a valuable Consideration, a Release might operate upon that without an actual Entry of the Lessee, because the Statute did execute the Lease and rai­sed an Vse presently to the Lessee. Sir Francis Moor Serjeant at Law was the first who practised this way.

Nota.But because there were some Opinions that where Convey­ances may enure two ways, the Common Law shall be prefer­red, unless it appear that the party intended it should pass by the Statute, thereupon the usual course was to put the Words Bargain and Sale into the Lease for a Year, to bring it within the Statute, and to alledge that the Lease was made to the intent and purpose that by the Statute of Vses the Lessee might be capable of a Release; but notwithstanding this, Mr. Noy was of the Opinion, That this Conveyance by Lease and Re­lease could never be maintained without the actual Entry of the Lessee.

This Case goes farther than any that ever yet came into Iudgment, for Mony is not mentioned here to be the Conside­ration, or any thing which may amount to it, unless the Pepper Corn, which he held to be a good Consideration.

The Lease and Release are but in nature of one Deed, and then the intent of the Parties is apparent that it should pass by the Satute, and eo instanti that the Lease is executed, the Re­servation is in force.

The Case put by Littleton in Sect. 459. is put at the Com­mon Law, and not upon the Statute; where he saith, That if a Lease be made for years, and the Lessor releaseth all his Right to the Lessee before Entry, such Release is void, because the Lessee had only a Right and not the Possession, which my Lord Coke in his Comment upon it, calls an interesse termini, and that such Release shall not enure to enlarge the Estate without the Possession, which is very true at the Common Law, but not upon the Statute of Vses.

And therefore Iudgment was given by the whole Court,Judgment. that the Word Grant in the Lease will make the Land pass by way of Use; that the Reservation of a Pepper Corn was a good con­sideration to raise an Vse to support a Common Recovery; that this Lease being within the Statute of Vses, there was no need of an actual Entry to make the Lessee capable of the Release; for by vertue of the Statute he shall be adjudged to be in actual possession, and so a good Tenant to the Praecipe; and Iudg­ment was given accordingly in Michaelmas Term following.

Kendrick versus Bartland.

THE Plaintiff brought an Action on the Case for stopping the Water going to his Mill with a Continuando, &c. Continuando laid after a Nusance a­bated, yet Damages shall be re­covered for what was done before

The Defendant pleads that the stopping was contra volunta­tem, and that tali die, which was betwéen the first and the last day laid in the Continuando, the Plaintiff himself had abated the Nusance, and so he had no cause of Action.

To this Plea the Plaintiff demurred, and Serjeant Baldwyn, who argued to maintain the Plea, did not relye upon that part of it where the Defendant saith, that the stopping of the Wa­ter was involuntary, because he doing the thing it could not be contra voluntatem; but the Question would be whether the Plain­tiff had any cause of Action to recover damages after the Abate­ment of the Nusance; and he said that he had abated it before the Action brought, and counted for damages after the Abatement, for which he had no Cause of Action, and this he had confessed by his Demurrer.

But the Court were of Opinion, that it was not a good Plea, and took this difference between a Quod permittat, or an Assize for a Nusance, and an Action on the Case for the same; for the end of a Quod permittat or an Assise was to abate the Nusance,2 Cro. 207, 618 but the end of an Action on the Case was to re­cover damages; therefore though the Nusance was removed the Plaintiff is intituled to his damages that accrued before; and 'tis usual in Actions of this nature to lay theSid. 319. Continuando for longer time than the Plaintiff can prove, but he shall have damages for what he can prove, and so here he shall recover the damages which he sustained before the Abatement: And thereupon Iudgment was given for the Plaintiff.

Walwyn versus Awberry, and others.

Tythes of a Rectory shall not be sequestred for Re­pairs of the Chancel. Mod. Rep. 258.TRespass for the taking and carrying away of four Loads of Wheat, and four Loads of Rye, &c.

The Defendants justifie, for that the Plaintiff is Rector of the Rectory impropriate of B. and that the Chancel was out of Repair, and that the Bishop of Hereford, after Monition first given to the Plaintiff, had granted a Sequestration of the Tythes of the Rectory for the repairing the Chancel; and that the Defendants were Churchwardens of the Parish; and that the particulars mentioned in the Declaration were Tythes belonging to the Plain­tiff as Rector aforesaid; and that by vertue of the said Commission they took the same for repairing of the said Chancel, and that for these Tythes so taken they had accounted to the Bishop.

To this the Plaintiff demurred.

The Question was, whether an Impropriate Rectory be charge­able for the Repairs of the Chancel by the Sequestration of the Tythes by the Bishop; and those who argued in the negative for the Plaintiff could not deny, but that Church Reparations did belong to the Ecclesiastical Courts, and that as often as Pro­hibitions have been prayed to that Iurisdiction, Consultations have been as often granted; notwithstanding in many Cases the Rates for such Reparations have been very unequally im­posed, and the reason is because those Courts have original Iu­risdiction of the Matter.

It was admitted also, that Parishioners are bound to repair the Church, and the Rector the Chappel, and in this respect of their Lands; and therefore if a Man hath Lands in one Town and dwell in another, he shall be contributory to the Reparation of that Church where his Lands are, and not where he inhabits.

And that all this was by the common Custom of England long before the making of the Statute of 31 H. 8. cap. 13. by which Parsonages were made Lay Fees; but then it must be under­stood that this was no real Duty incumbent upon them, but was a personal burden for which every Parishioner was chargeable proportionably to the quantity of Land which he held in the Pa­rish; in which Case if he refused to be contributory the Ordinary did never intermeddle with the possessions, but always proceeded by Ecclesiastical Censures, as Excommunication of the Party re­fusing, which is the proper remedy.

But in case of an Appropriation in the Hands of an Ecclesi­astical Corporation, as Dean and Chapter, &c. there if a Refusal be to contribute to the Repairs, the Ordinary may sequester; and the reason is because a Corporation cannot be excommunicated.

The Ordinary may also sequester in things of Ecclesiastical Cognizance, as if the King do not present; so he may take the Profits within the six Months, that the Patron hath to present, and apply them to the Pastor of the Church by him recommend­ed, because the Ordinary hath a provisional Superintendency of the Church; and there is a necessity that the Cure should be sup­plyed until the Patron doth present, and this is a kind of Se­questration.

But in some Cases the Ordinary could not sequester the Pro­fits belonging to Spiritual Persons, though he was lawfully entituled to them for a particular time and purpose: For by the Statute of 13 Eliz. cap. 20. 'tis Enacted, That if a Parson make a Lease of his Living for a longer time than he is resident upon it, that such Lease shall be void, and he shall for the same lose one years Profits of his Benefice, to be distributed by the Or­dinary amongst the Poor of the Parish.

Now he had no Remedy to recover the Years Profits, but in the Ecclesiastical Court; he could not sequester, and to give him Authority so to do a supplemental Statute was made five years afterwards in the 18th year of the Queens Reign cap. 11. by which Power is given him to grant a Sequestration; so that if he could not sequester in a Case of which he had a Iurisdiction by a precedent Statute, à fortiori he cannot in a Case exempted as this is from his Iurisdiction.

But admitting a Sequestration might go, then this inconveni­ency would follow, that if other Lands should be sequestred for the same purpose, the former Sequestration could not be pleaded to discharge them, because the interest is not bound thereby, no more than a Sequestration out of Chancery is pleadable to an Action of Trespass at the Common Law.

This Case cannot be distinguished from that of Jefferies in 5 Co. and from what the Civilians testified to the Court there, viz. That the Churchwardens and greater part of the Parishioners upon a general warning given may make a Taxation by Law, but the same shall not charge the Land, but the person in respect of his Land; so that 'tis he that is chargeable and may be excom­municated in case of refusal to contribute, but his Lands cannot be sequestred, because 'tis not the business of the Ordinary to meddle with the temporal possessions of Lay-men, but to proceed against them by Ecclesiastical Censures; and the Parishioners [Page 256] Lands may be as well sequestred for the Repairs of the Church, as the Lands of the Impropriator for the Repairs of the Chap­pel; for which Reasons it was held that a Sequestration would not lie.

Ex parte Def.But on the other side it was said, that before the making of the Statute the Rector was to repair the Chancel under pain of Se­questration, which the Ordinary had power to grant in case of refusal; and that his Authority in many Cases was not abridged by the Statute: The Case of2 Cro. 518. Parry and Banks was cited, where in the 24th Year of H. 8. a Parsonage was appropriated to the Deanary of St. Asaph, and a Vicaridge endowed, which the Bi­shop dissolved in the 24th Year of Queen Elizabeth, and Parry pretending that notwithstanding this Dissolution it was in the Kings Hands by lapse obtained a Presentation; and it was re­solved that after the Statute of Dissolutions, which made Par­sonages Lay Fees, the Ordinary could not dissolve the Vicaridge where the Parsonage was in a Temporal Hand, but being in that Case in the Hands of the Dean, he might.

The Rector is to repair the Chancel, because of the Profits of the Glebe, which is therefore Onus reale impositum rebus & per­sonis; and of that Opinion was Johannes de Atkin, who wrote 100 years before Lynwood, where in fol. 56. he saith, That if the Chancel was out of repair it affected the Glebe.

And that the Constitution of the Canon Law is such will not be denied,Vaugh. 327. and if so Canons being allowed, are by use become parcel of the Common Law, and are as much the Law of the Kingdom as an Act of Parliament, for what is Law doth not suscipere magis aut minus.

Several Cases were put where the Bishop doth intermeddle with the Profits of a Parsonage, as in the Case of a Seque­stration upon a Iudgment obtained against a Spiritual Person, where a Fi. Fa. is directed to the Sheriff upon that Iudgment, and he returns Clericus beneficiatus non habens Laicum feodum; for which reason he cannot meddle with the Profits of the Glebe, but the Bishop doth it by a Sequestration to him directed.

He may likewise retain for the supply of the Cure and pay only the residue, which hath been omitted on the other side.

As the Ordinary might dissolve a Vicaridge endowed where the Parsonage was in the Hands of a Dean, so he may sequester an Appropriation in any Spiritual Person; and there is no Statute which exempts an Impropriation from such a Sequestration, be­cause 'tis onus reale at the Common Law; and as the Lay Im­propriator may sue for Tythes and receive them as before the [Page 257] making this Statute; 'tis as reasonable since he hath the same advantage that he should have the same Charge, and the rather because the saving in the Statute of 31 H. 8. cap. 13. doth still continue the same Authority the Bishop had before, though the possession was thereby given to the King.

The Words of which are, viz. Saving to all and every person, &c. such Right which they might have had as if the Act had not been made, which must be the Right of the Ordinary and of no other person.

An Impropriator pays Synodals and Procurations as well as an Appropriation in the Hands of Ecclesiastical Persons, and it would be very inconvenient if a Sequestration should not lie which would quicken them more than an Excommunication; and it was said, that in England there were above 1000 Appro­priations belonging to Corporations aggregate, as Deans and Chapters, which could not be excommunicated; and if the Bi­shop could not sequester, then there was no remedy to repair the Chancel: For which Reasons Iudgment was prayed for the Defendant.

But the whole Court, besides Iustice Atkins, held that the Lay Impropriation was not to be sequestred for the Repairs of the Chancel: And the Chief Iustice said, that the Repair of the Chancel was an Ecclesiastical Cause, but that the Rectory and Impropriator were Lay, and not to be sequestred as the possessions in the Hands of Ecclesiastical Corporations may, which he did agree could not be excommunicated, but the persons who made up such Corporation might.

And as to the Sequestration upon a Iudgment it made nothing for the Matter to entitle the Ordinary to a Sequestration in this Case, because what he doth in that is in the nature of a tem­poral Officer; for the Sequestration is like the Fieri Facias, and being directed to the Bishop, he is in that Case (if he may be so called) an Ecclesiastical Sheriff, and by virtue thereof may do as the Sheriff doth in other Cases, that is, he may seise Eccle­siastical things and sell them, as the Sheriff doth Temporal things upon a Fieri Facias; but 'tis to be observed that he must return Fieri feci, and not Sequestrari feci upon this Writ.

And as to the Saving in the Statute, that doth not alter the Case; for if any Right be thereby saved, 'tis that of the Parson, for the Parishioners have no right to sit there; indeed the Vicar may, because he comes in under the Parson.

So that this Case is not to be put as at the Common Law, but upon the Statute of Dissolutions, by vertue whereof the [Page 258] Rectory being in the Hands of a Lay Person is become a Lay Fee, and so cannot be subject to a Sequestration; if it should, the next step would be that the Bishop would increase Vica­ridges as well in the Case of an Impropriation as Appropriation, which would lessen the possessions of such as have purchased under the Act.

But Iustice Atkins was of a contrary Opinion; he said that it was agreed by all that an Impropriator is chargeable with the Repairs of the Chancel; but the Charge was not personal but in regard of the profits of the Impropriation, which are originally the Debtor according to the first Donation. That the primary Rights of Rectories are the performance of Divine Service and the Repairs of the Chancel, and that the Profits, which are over and above, must then go to the Imprpriator, and are to be esteemed then a Lay Fée; but that those Duties are the first Rights, and therefore must be first discharged.

That this Right, this duty of Repairing was certain, and therefore shall not be taken away by Implication, but by express Words in the Act, which if wanting shall remain still, and the Parties shall be compelled to repair under the same Penalties as before.

But admitting it should be taken away, yet the saving in the Act extends to the Right of the Parishioners, which is not to sit in the Chancel, but to go thither when the Sacraments are ad­ministred, of which they are deprived, when 'tis out of Repair; nor can they have the use of the Church which properly belongs to them, because when the Chancel is out of Repair it not only defaces the Church, but makes it in a short time become rui­nous.

He denied that a Sequestration in Chancery cannot be pleaded to barr a Trespass at the Common Law; for if it be said that the Chancery have issued such Sequestrations it will be as binding as any other Process issuing according to the Rules of the Common Law.

And he also denied the Case put by the Chief Iustice, that the Lands of the Parishioners might as well be sequestred for the repair of the Church as those of the Impropriator for repair of the Chancel, because the Profits of the Rectory might originally be sequestred, but the Lands of the Parishioner could not; and so the Cases are quite different.

Judgment.But in Easter Term following Iudgment was given against the Defendant upon the point of Pleading, which the Court all agreed to be ill.

[Page 259] 1. The Defendants should have averred that the Chancel was out of repair.

2. That no more was taken than what was sufficient for the repair thereof.

3. For that the Plaintiff had declared for the taking of se­veral sorts of Grain; and the Defendant justifies the taking but of part, and saith nothing of the residue, and so 'tis a Discon­tinuance; and the general Words quoad residuum transgressio­nis will not help, because he goes to particulars afterwards and doth not ennumerate all; and thereupon Iudgment was given accordingly.

Edwards versus Weeks.

ASsumpsit. Parol dis­charge good be­fore breach of Promise, but not af­terwards. Mod. Rep. 262. The Plaintiff declared that the Defendant in consideration that the Plaintiff at his Request had exchanged Horses with him, promised to pay him 5 l. and he alledged a breach in the Non-performance.

The Defendant pleads that the Plaintiff before any Action brought, discharged him of his Promise: And upon a Demurrer the Question was, whether after a breach of a Promise a parol discharge could be good? The Case ofCro. Car. 383 Sid. 293. Langden and Stokes was an Authority that such a discharge had been good before the breach: viz. The Defendant promised to go a Voiage, the breach was alledged in Non-performance; and the Defendant pleaded that before any breach the Plaintiff exoneravit eum; and upon Demurrer it was held good before the breach.

But here was no time agreed for the payment of this 5 l. and therefore it was due immediately upon Request, and not being paid, the Promise is broken, and the parol discharge can­not be pleaded; and of that Opinion was all the Court, and Iudgment for the Plaintiff, Nisi, &c.

Quaere. If had pleaded such a discharge before any request of payment, wheher it had been good.

Arris & Arris versus Stukely. In Scaccario.

Indebitatus Assumpsit will lie for the receipt of the Pro­fits of an Office, tho' no contract INdebitatus assumpsit for 200 l. in Mony had and received to the use of the Plaintiffs: Vpon Non assumpsit pleaded, the Iury find a Special Verdict to this effect; viz. They find that King Charles the Second did on the 17th day of August in the 12th year of his Reign, by his Letters Patents under the great Seal, grant unto the Defendant and another the Office of Comp­troler of the Customs at the Port of Excester, durante bene pla­cito; that the other person died; and that the King afterwards by other Letters Patents bearing date primo Maii in the 21st year of his Reign, did grant the said Office to the Plaintiffs, which was two years before this Action brought; and that the Defendant still and for seven years past had exercised the same upon pretence of a Right by Survivorship, and received the Profits thereof; but whether upon the whole Matter the Defendant made any such Promise as in the Declaration, they did not know, Et petunt advisamentum Curiae in praemissis; and if upon the Mat­ter so found the Court shall be of Opinion that the Defendant made such Promise, then they say, that he did make such Pro­mise and assess damages occasione praemissorum in narratione mentionat' ad 100 l. and Costs to 53 s. and 4 d. &c.

Winnington Sollicitor argued, that the first Patent was de­termined by the death of one of the Patentées, and then the second Patent takes effect, and so the Plaintiffs have a good Title; for there shall be no Survivorship of an Office of Trust, no not if the Office had been granted to two for their Lives, if it be not said, to the Survivor of them, 11 Co. 34. Auditor Curles Case; and of that Opinion was the Court clearly.

But Pollexfen for the Defendant said, that he agreed that Point, but that the Plaintiffs Patent was not good; for though there be a general Non obstante of all the Statutes in it, yet there ought to have been one in particular against the Statute of 14 R. 2. cap. 10. which Enacts, That no Customer or Comp­troler shall have any Office in the Customs for his Life, 31 H. 6. c. 5. but on­ly during the pleasure of the King; which being made for the publique Good, the King cannot by any Non obstante dispense with it.

In many Cases the dispensation of the King by a Non obstante is good, as where a Statute prescribes the form of the King's Grant, where it doth not directly prohibit a thing, but only under pain of a Forfeiture; but if it be direct and pro bono publico, there a Non obstante is not good, and so is this Statute.

He cannot dispense with the Statute of 31 Eliz. against Sy­mony; for the Party being disabled by anHob. 57. 1 Inst. 120. Act of Parliament cannot be enabled by a Non obstante; he cannot dispence with the Statute of Leases of5 Co. 15. Ecclesiastical Persons, nor with the Iurisdiction of the13 R. 2. c. 3. 15 R. 2. c. 5. 2 H. 4 11. 4 Inst. 153. Admiralty encroaching upon the Common Law; for the foundation of a Non obstante is in the Kings Pre­rogative, and is current in his Grants; but in those Statutes the Subject hath an interest.

The Laws concerning Non obstantes are none of theDavis Rep 69, 70, 71. Vaugh. 332. Thomas ver­sus Sorrel. Hob. 146. Colt and Glover. Long 5 E. 4. 33, 34. ancient Laws of this Land, but brought in by the Pope. The Book of 2 H. 7. f. 6. b. and 7. did first give rise to this exorbitant power; yet it is not the Opinion of all, or indeed of any of the Iudges then, as 'tis affirmed to be, for Broke Pat. 45, 109. who abridged that Case, took no notice of any Opinion of the Iudges; yet some grounding themselves on that Book, affirm that the King may dispense with the Statute of the 23 H. 6. cap. 8. which E­nacts, That no Man shall be Sheriff for above one Year; and that therefore a Patent granted by Ed. the 4th, to the Earl of Northumberland, to be Sheriff of the same County for Life, was held good, which is a plain mistake, for there never was any such Resolution, neither did the Iudges make any determi­nation upon that Statute, it was only a discourse obiter by Rad­cliff (who was then one of the Barons of the Exchequer,) con­cerning the Statutes of the 14 E. 3. cap. 7. and of the 42 E. 3. cap. 9. which are only prohibitory, That no Sheriff shall continue in his Office above one year, but have not any such Clause in them as the Statute of 23 H. 6. hath, which saith, That all Patents made to any to be Sheriff for above a year shall be void, any Clause or word of Non obstante in any wise put in such Patent notwithstanding; this was the mistake of Baron Radcliff, Postea. who upon a sudden Discourse thought there might be such Clauses in those former Statutes of Ed. 3. and that notwithstanding which, there being a Non obstante in that Patent to those Sta­tutes he held that to be a good dispensation of them; but 'tis plain there are no such Clauses in those Statutes, and there­fore a Non obstante to them is good, and which was the true reason why that Patent in H. the 7th's time was held good.

[Page 262] 2. Another reason might be, because the Office of Sheriff was grantable for Life, and so not within the reach of the Prohibiti­on by those Statutes.

3. But it if was, yet the Proviso in the Aa of Resumption, of 1 H. 7. protected that Patent, by which the King resumed all Grants made by E. 4. but provides for the Earl's Grant.

But admitting the Statute of R. 2. and of H. 6. may be dis­pensed withal in this Case,Dyer 352. a. 2 Roll. Abr. 193. Cro. Eliz. 513. yet it should be more particular than in this Patent to the Plaintiff; for Non obstante aliquo Statuto generally will not serve.

2. Point. A general indebitatus assumpsit will not lie here for want of2 H. 4. 12. Bro Accompt 24, 65, 89. privity, and because there is no contract, 'tis only a tort, a disseisin, and the Plaintiff might have brought an Assise for this Office, which lies at the Common Law; and so it hath been adjudged in Jehu Webb's Case, 1 Inst. 212. 8 Co. 4. Which is also gi­ven by the Statute of Westm. 2. cap. 25. for a profit apprender in alieno solo.

The Plaintiff might have brought an Action on the Case against the Defendant, for disturbing of him in his Office, and that had been good, because it had been grounded on the wrong.

In this Case the Defendant takes the Profits against the will of the Plaintiff, and so there is no Contract; but if he had received them by the consent of the Plaintiff,6 H. 6.9. 1 Roll. Abr. 597 pl. 5. yet this Acti­on would not lie for want of privity. 'Tis true, in the Case of the King where his Rents are wrongfully received, the party may be charged to give an accompt as Bayliff; so also may the Executors of his Accomptant, because the Law createth a pri­vity; but 'tis otherwise in the Case of a common person, 10 Co. 114. b. 11 Co. 90. b. Because in all Actions of Debt, there must be a Contract, or quasi ex contractu; and therefore where Iudg­ment was had and thereupon an Elegit, and the Sheriff return­ed that he had apprised the Goods, and extended such Lands, which he delivered to the Plaintiff, ubi revera he did not, per quod actio accrevit, which was an Action of Debt; but it was adjudged that it would not lie, because the Sheriff had not returned that he medled with the Goods, or with the value of them, and therefore for want of certainty how much to charge him with this Action would not lie, but an Action on the Case for a false Return; but if he had returned the Goods sold for so much Mony certain,Godb. 276. 2 Sand. 344. 2 Cro. 566. which he had delivered, then an Action of Debt would lie; for though 'tis not a Contract, 'tis quasi ex contractu, Hob. 206.

3. Point. The Iury find that the Defendant received the Pro­fits for seven years, and that the Plaintiff had his Patent but two [Page 263] years, and do not shew what was received by the Defendant within those two years, and then the Court cannot apply it.

But on the other side it was said by Sawyer, Ex parte Quer. That this Non obstante was good; for where an Act of Parliament comes to re­strain the Kings power and prerogative, it was always held so to be and he relied upon the Iudgment of 2 H. 7. f. 6. that the King might dispense with the Statute of 23 H. 6. Pl. Com. 502. b. Dyer. 303. which he af­firmed to be the constant Vsage ever since, and that therefore the Law is so taken to be at this day.

As to the second Point both he and the Sollicitor General Winnington said, That an indebitatus assumpsit would lie here, for where one receives my Rent, I may charge him as Bayliff or Receiver; or if any one receive my Mony without my order, though 'tis a tort, yet an indebitatus will lie, because by the Re­ceipt of the Mony the Law creates a promise, and the Action is not grounded on the tort but on the receipt of the Profits in this Case.

As to the Objection about the finding, they held that to be nugatory and idle; for it cannot be intended that the Damages given were for the time the Defendant received the Profits, be­fore the Plaintiff had his Patent, neither is there any thing found in the Verdict to that purpose.

In Michaelmas-Term following,Judgment. the Court gave Iudgment for the Plaintiffs.

1. They held that the King might dispense with this Statute, for the Subject had no interest, nor was in any wise concern­ed in the Prohibition; it was made only for the ease of the King;Hob. 146. and by the like reason he might dispense with the Statute of 4 H. 4. 24. That a Man shall hold the Office of Dyer 203. Aulnager, with­out a Bill from the Treasurer; and with the Statute of 31 H. 6. 5. That no Customer or Comptroller shall have any Estate certain in his Office; because these and such like Statutes were made for the ease of the Sovereign, and not to abridge his Prerogative, and that the general Clause of Non obstante aliquo alio Statuto was sufficient.

2. 4 H. 7. 6. b. Moor 458 An Indebitatus Assumpsit will lye for Rent received by one who pretends a Title, for in such case an Accompt will lye; wherever the Plaintiff may have an Accompt, an Indebitatus will lye.

As to the finding 'tis well enough, for the Iury assess Dama­ges occasione praemissorum in narratione mentionat, which must be for the time the Plaintiff had the Office, and that a Patent would make a Man an Officer before admittance.

Steward Executor of Steward, versus Allen.

Demand must be made where an Interest is to be de­termined.DEBT for a Rent reserved upon a Lease for years, in which there was a Proviso, That if the Rent be behind and unpaid by the space of a Month next after any or either of the Daies of payment, then the Lease to be void.

The Plea was, That the Rent was behind a Month af­ter a day on which it was reserved to be paid, and so the Lease is void; to which Plea the Plaintiff demurred, because the De­fendant did not say that the Plaintiff demanded the Rent; for though the Rent be due without demand, yet the Interest shall not be determined without it, which must be expressly laid in the Pleading; and of that Opinion was the Court, except Iustice Atkyns, who doubted.

Searl versus Long.

Quare Impe­dit, real mainper­nors must be returned upon the Summons, Pone and Grand Cape. 2 Inst. 124. Mod. Rep. 248.IVdgment final was given in a Quare Impedit, according to the Statute of Marlebridge, cap. 12. Which Serjeant Pem­berton moved to set aside.

He said that at the Common Law the Process in a Quare Impedit was Summons, Pone, and Distress infinite, which being found mischie­vous in respect of a Lapse, it was therefore provided by this Statute, that if the disturbers do not appear upon the Summons, then they shall be Attached to appear at another day, &c. Now here upon the Attachment the Sheriff hath returned Attachiatus fuit by John Doe and Richard Roe, who are feigned persons, and not mainpernors; for the Defendant hath made Oath, That he did not know any such persons, neither was he ever Attach­ed, so that 'tis not only a matter of Form, for he ought to have that notice which the Law requires, it being so penal upon him.

'Tis probable this Mistake might arise from Mr. Dalton, who in his Book of the Office of Sheriffs, in the Returns of Writs there, hath put down these feigned Attachers for Examples sake, from whence the Sheriff in this Case might inferr that they need not be real persons, as in truth they ought, both upon the Sum­mons, Pone, and Distress; and he cited a Case lately adjudged, where the like Return was made upon the Grand Cape, and the Iudgment set aside; and of this Opinion was the whole Court, and said, Where the Process is so fatal, the Party ought to [Page 265] be duly served, and that the Sheriff ought to have gone to the Church and to have seised the Profits; and if there be nothing, to return a Nihil; and though the Iudgment was given before the Term, or long since, yet when 'tis Irregular 'tis to be set aside, and so it was now; and being moved again, the Court continued of their former Opinion.

The like Case was moved in Michaelmas-Term following, be­tween Fleming and Lee, where the Patron Defendant was thus summoned and never appeared, and the Incumbent did cast an Essoign; and a Case was cited betwéen Vivian and the Bishop of London, Mich. 23 Car. 2. in C. B. where the like Iudgment was set aside.

But on the other side it was objected, that leaving due notice upon the Summons was as much as was required, for the other Writs are only to give the Defendant time to plead, and there­fore 'tis not necessary that notice should be given upon every one of the Writs, for if once served 'tis enough, 11 H. 6. 3, 4. 36 H. 6. 23. 8 H. 6. 8. Long 5 to E. 4. 26. 29 E. 3. 42, 43. Doctor and Stud. 125, 126. 21 H. 6. 56.

But the Court were of Opinion that the Defendant having not appeared, nor cast an Essoign, and Iudgment final being given,Curia. it was reason that all the Process should be served really, of which there had been no occasion, if he had either appeared or essoined, and therefore the Process not being duly served Iudgment was set aside, Rast. Ent. 217. And they held that the Essoign of the other Defendant was no wise binding to the Patron Defendant, because they may sever in Pleading, and so that Iudgment was likewise set aside.

DE Term. Sancti Mich. Anno 29 Car. II. in Communi Banco.

Sir John Otway versus Holdips Executor, &c.

Bond to pay 40 l. when an Accompt shall be stated, 'tis a Covenant and not a Solvendum.DEBT upon Bond brought by the Plaintiff against the Defendant as Executor, wherein the Testator did acknowledge himself to be indebted to the Plaintiff in 40 l. which he thereby did covenant to pay when such a Bill of Costs should be stated by two Attornies indiffe­rently to be chosen between them; and sets forth in his Decla­ration that he named one Attorny, and desired the now Defen­dant to name another, which he refused, and so intitles himself to this Action.

The Defendant pleads Non detinet, to which the Plaintiff demurred.

But the Plea was not offered to be maintained because the Executor cannot plead Non detinet, but where the Testator him­self might plead Nil debet, which in this Case he could not do. But it was insisted, that the Declaration is not good, because the Mony was to be paid upon an accompt stated, which not being done, by the Plaintiffs own shewing 'tis not yet due; and this ought to be taken as penned, viz. Solvendum and not an express Covenant.

But on the contrary it was held not to be a Solvendum, but a Covenant to pay the Mony, the Debt and the Duty being in the first place ascertained; but if it be a Solvendum and repugnant to the Obligatory Clause 'tis void, 21 Ed. 4.36.

As the Defendant would have it expounded, it would be in his power totally to defeat the Bond either way; for if he would never chuse an Attorny there could be never any thing due.

The whole Court were of Opinion that it was not a Sol­vendum, but a Covenant, which did not take away the Duty as­certained by the Obligation; and if it should not be a Cove­nant, but an entire Bond, then it would be in the Power of the Obligor whether ever it shall be payable; but be it either the one or the other, the Plaintiff having named an Attorny, ought to recover; and Iudgment was accordingly given for him.

Dunning versus Lascomb.

DEBT on a Bond, the Condition was to pay Mony when a Ship should go from A. to C. and from thence to Bristol, and should arrive there or at any other Port of discharge in England; the Ship going from A. to C. took in Provisions at Bristol, but not to be discharged there, but proceeded in her Voiage to Cales and was cast away: And by the Opinion of the Court the Mony was not payable; but if he had never intended to perform the Voyage it might have been otherwise, 1 Roll. Abr. 142. 39 H. 6.10. Iudgment for the Defendant nisi.

Atkins versus Bayles.

AN Information was exhibited against the Defendant,Outlary pleaded to an Infor­mation, good. be­ing a Iustice of the Peace, for refusing to grant his War­rant to suppress a Conventicle.

The Defendant pleads an Outlary in disability; and the Plan­tiff demurred.

1.3 Inst. 194. This Plea is not good because the King is interested qui tam, &c. and therefore where the Informer dies the Attorny Ge­neral may proceed.

2. The Statute gives power to any person to inform, &c. by which general Words the Disability of this person is re­moved.

But the Court held that there was no colour in either of these Objections.

3. 'Tis not pleaded sub pede sigilli, sed non allocatur, for it need not be so pleaded being in the same Court.

4. 'Tis not averred that the Plaintiff was the same person, who was outlawed; but it was answered that the praedictus makes that certain, and that though the King be interessed, yet the In­former [Page 268] only is Plaintiff and intituled to the benefit, and that though he was disabled yet he might sue for the King,Moor 541. Dyer 227. b. Cro. Eliz. 583. but not for himself; and therefore Iudgment was given that the Plea was good.

Harwood & Bincks versus Hilliard, &c.

Notice, where 'tis agreed to be in wri­ting, must be so pleaded.BY an Agreement between the Plaintiffs and the Testator of the Defendant a parcel of Lands was to be sold for 400 l. but if it did not arise to so much, then they covenanted with each other to repay proportionable to the Abatement; and the Defen­dant's Testator covenanted for himself and his Executors to pay his proportion to the Plaintiffs, so as the Plaintiffs gave him notice in writing of the said Sale by the space of ten days, but doth not say, that such notice was to be given to his Executors or Administrators.

And now the Plaintiffs averred, that they gave notice accor­dingly to the Defendant who was Executor, and the breach as­signed was, that he hath not paid, &c.

The Defendant demands Dyer of the Indenture wherein was a variance between the Covenant (which was for notice to be given to the Testator) and this Declaration (by which notice is averred to be given to the Executor;) and for this reason he demurred.

And Serjeant Dolben Recorder of London argued for him, that this was in the Nature of a Condition precedent, and there­fore they ought to have given the Testator notice, which accor­ding to the Agreement ought also to have been personal, which not being done, but only notice given to his Executor, did make a material and fatal difference between the Covenant and this Declaration, 14 H. 6. 1. 1 H. 6. 9.

And that in this Case there was no Covenant by the Testator at all, for all agree to pay their proportions, and the Testator should pay his part, which is not a Covenant.

Barrel Serjeant on the other side said, that the Executor doth represent the person of the Testator; and that though this Co­venant was to give notice to the Testator, yet if the Declara­tion had been of a Covenant to give notice to him, his Executors and Administrators, &c. it had been no material variance so as to prejudice the Action of the Plaintiff, because 'tis no more than what the Law implies, Pl. Com. 192.

And upon the first opening this Matter this Term the Chief Iustice and Iustice Atkins enclined that the notice ought to be personal, and that the variance was material: But afterwards in Hillary Term following mutata opinione, the whole Court agreed it to be otherwise, because the Covenant runs in Interest and Charge, and so the Executor is bound to pay; and therefore 'tis necessary that he should have notice, and that there was no material difference between the Declaration and the Covenant. And lastly,Antea. that the Testator being a Party to the Deed his Agree­ment to pay amounts to a Covenant, though the formal Words of Covenant, Grant, &c. were wanting.

But then Serjeant Dolben perceiving the Opinion of the Court insisted, that the Declaration was naught for another reason, viz. they had not declared, that this notice was given in writing, which is expresly agreed in the Covenant; to which it was answered that the Defendant having pleaded that he gave notice secundum formam & effectum Conditionis, it was well enough.

But he said that would not help the want of Substance,Dyer 243. b. and cited a Case where an Action of Debt was brought for the per­formance of an Award, so as the same was delivered in Wri­ting, &c. The Defendant pleaded Non deliberavit in scriptis, &. The Plaintiff replyed and set forth the Award in Writing, but did not directly answer the Plea of delivering it in Writing, only by way of Argument; and upon Demurrer there omnes Justiciarii contra Querentem; and so they were in this Case, that the notice must be pleaded in Writing, and that secundum formam Conditionis was not good; And so Iudgment was given for the Defendant.

Frosdick versus Sterling.

THE Plaintiff alone brought an Action on the Case against the Defendant, and sets forth,Baron and Feme where the Action, if its not dis­charged, shall sur­vive to her, they must both join. that he and his Wife in her Right were seised of a Messuage, Bake-House and Cole-Yard, &c. and that the Defendant had erected two Houses of Office so near the said Bake-House that the Walls thereof became foun­drous, and the Air so unwholesome, that he lost his Custom; and that the Defendant had digged a Pit so near the said Cole-Yard that the Walls thereof were in danger of falling; and that he had built another Wall so near the said Messuage, that he had stopped an old Light therein: Vpon Not-guilty pleaded there was a Verdict for the Plaintiff.

And now Serjeant George Strode moved in Arrest of Iudg­ment, for that the Wife should have been joyned in this Acti­on, for where she may maintain an Action for a tort done in the Life-time of her Husband, if she survive, and where she may also recover Damages, in such Cases she must joyn; and it hath been adjudged that she ought to joyn with her Husband for stop­ping a way upon her Land, Cro. Car. 418.

1 Roll. Abr. 348. pl. 1. 20 H. 6. 1. [...] Ed. 4. 15. Cro. El. 461.So also for cutting down Trees on the Ioynture of the Wife, made to her by a former Husband, by reason whereof the pre­sent Husband lost the Loppings, they both joyned, for though the wrong was done to his Possession, and he might have Releas­ed, yet because there was also a wrong done to the Inheritance, they ought both to joyn, Cro. Car. 438.

3 Inst. 650.So it hath been adjudged, that the Husband and Wife in Right of the Wife jojned in an Action of Debt upon the Statute of 2 E. 6. cap. 13. for not setting out of Tythes, and held good, and where the Wife cured a wound,2 Cro. 205, 399. 9 E. 4. 55. both joyned in the Action, 11 H. 4. 16. 46. E. 3. 3.

The Court held, That where the Action (if not discharged) shall survive to the Wife, they ought both to joyn, which if they had done here, it would have been hard to have maintained this Action, because entire Damages are given; and for losing the Custom to his Bake-house, the Husband alone ought to have brought the Action. He may bring an Ejectment of the Lands of his Wife; but Iudgment was stayed, till moved on the other side.

Barker versus Warren.

Justificati­on where 'tis not lo­cal, a Tra­verse of the place makes the Plea naught.AN Action was brought against a Carrier, and laid in Lon­don, for losing of Goods there which were delivered to him at Beverly in Yorkshire, to re-deliver at London.

The Defendant pleads, That he was robbed of the said Goods at Lincoln, absqe hoc that he lost them in London. And the Plain­tiff demurred.

1. For that Robbery is no excuse for a Common Carrier, so that the Plea is not good in substance.

2. This was no local Iustification, so that the Traverse was ill.

But on the other side it was said by Serjeant Hopkins, that the Plea was good, and that the Defendant might Traverse the place: For in Trespass for the taking of Goods in Coventry, the Defendand pleaded that the Plaintiff did deliver the Goods to him at London, to deliver at Dale, by force whereof he took them at London and delivered them at Dale accordingly, absque hoc that he took them at Coventry, and held good, for by his Plea he hath confessed the delivery, and the taking both at one time and place; and he could not have pleaded the delivery at Lon­don, and justifie the taking at Coventry, because the Possession is confessed by the first delivery at London, and therefore the justi­fication of the taking at Coventry had been inconsistent, 24 H. 6. 5. But it had been otherwise, if the Defendant had justified, be­cause the Plaintiff gave him the Goods at London, by force whereof he took them at London, absque hoc that he took them at Coventry, because by such Gift or Delivery, he might justi­fie the taking any where as well as where the delivery was made.

2. That the Declaration was ill, for the Agreement was to deliver the Goods at London, and the breach was that he left them at London, and so but argumentative, Aston pl. Red. 62. Herns Pleader 76. Brownl. Pleadings 139.

But the Court were of Opinion that the Declaration was good, and the Plea was naught in substance; but if it had been good, the Traverse notwithstanding had been ill, because the justifica­tion was not local,2 Cro. 45, 372 though Iustice Scroggs was of a contrary Opinion: And Iudgment was given for the Plaintiff.

Nota, Visne alte­red, Propter necessiatem. The Plaintiff had leave given by the Court to alter the Visne from London to Middlesex, because all the Sittings in London were on a Saturday, and his Witness was a Jew, and would not appear that day.

Mendyke versus Stint.

PRohibition was prayed to the Sheriffs Court of London: Prohibition to the Sheriffs Court after Verdict and Judgment, comes too late. The Suggestion was, That the Plaintiff was sued in that Court in an Action on the Case, and sets forth the Proceedings at large, that there was a Verdict against him there, and averred that the Contract upon which he was sued there revera was made in Middlesex, and so the cause of Action did not arise within their [Page 272] Iurisdiction; and upon Demurrer to the Prohibition Serjeant Pemberton argued,

2 Inst. 229, 243, 601. West. 1. c. 35. F. N. B. 45. b. Hob. 106. 1. That a Prohibition doth lie to any Court, as well Tempo­ral as Spiritual (where such Courts exceed their Bounds) for both those Iurisdictions are united to the Imperial Crown; it may be granted to the Dutchy Court, if they hold Plea of Lands not parcel of the Dutchy.

2. Though the Iury have here found that the Defendant assump­sit modo & forma, yet such finding as to time and place is not material; nor is it any Estoppel in a new Action laid in another County, to aver that it was for the same thing: 'Tis true, both time and place may be made material by pleading, and so it had been in this Case, if the Iury had found the place pre­cisely, for it would have been an Estoppel.

The Verdict therefore is nothing, and all they have done is coram non Judice. The Case ofAntea, Squib and Holt. Squib and Hole he cited as an Authority in point, where it was adjudged no Escape in the Officer, to let a Man at Liberty, who was in Execution upon a Bond, sued in an Inferior Court, the Bond not being made within the Iurisdiction thereof.

Ex parte Def.But Maynard, Dolben, Goodfellow and Sympson Serjeants, contra. They agreed, that where it appears by the Plaintiffs Libel that the Court had no Iurisdiction, there a Prohibition lies at any time; but if what is in the Declaration is laid infra jurisdictio­nem, there the Party must plead extra jurisdictionem, and if they refuse to plead to the Plea, a Prohibition will lie after Sentence.

But here is an Action on the Case brought, of which the Sheriffs Court can hold Plea, and which is laid to be infra ju­risdictionem, and not denied by the Plaintiff in his Plea, and therefore now, after Verdict and Iudgment, he comes too late for a Prohibition; and upon this difference Prohibitions have been usually either granted or denied to the Spiritual Courts.

Though the Court hath not cognisance of the Cause, yet the Proceedings are not coram non Judice; for if it be alledged to be within the Iurisdiction, and the Defendant takes no excep­tion to it, and then Sentence is given against him, he hath there. by admitted the Iurisdiction.

So where a Man sued for a Legacy in the Prerogative Court, where the Will was proved,Stiles 45. by the Opinion of Rolls C. J. 2 Roll. Abr. 318. and Sentence given, and an Appeal to the Delegates, and Sentence affirmed, and then a Prohibi­tion granted (but without notice) upon the Statute of 23 H. 8. cap. 9. for that the Parties lived in another Diocess; but the Plaintiff having allowed the Iurisdiction in all the former pro­ceedings, [Page 273] though the Prohibition was granted, the Court would not compel the Party to appear and plead, but granted a Con­sultation, Cro. Car. 97. Smith versus the Executors of Pondrel.

In Hillary-Term 1675. in B.R. between Spring and Vernon, and in Michaelmas-Term in 22 Car. 2. B. R. Buxton's Case, and in Hil­lary Term the 22 & 23 Car. 2. in the same Court, between Cox and St. Albon Prohibitions were denied after the Iurisdiction ad­admitted by Pleading.Mod. Rep. 81.

The Chief Iustice, Wyndham and Atkyns, upon the first Ar­gument enclined that a Prohibition ought to be granted, because the admittance of the Party cannot give a Iurisdiction where ori­ginally there was none; but afterwards they were all of Opi­nion, That the Prohibition should not go, but said, that the Plaintiff in the Inferiour Court ought to have been Non-suited, if it appeared upon the Evidence that the Cause of Action did arise extra jurisdictionem.

In this Case these things were agreed by the Court.

1. Sid. 151. That if any matter appears in the Declaration which shew­eth that the Cause of Action did not arise infra jurisdictionem, there a Prohibition may be granted at any time.

2. If the subject matter in the Declaration be not proper for the Iudgment and determination of such Court, there also a Prohibition may be granted at any time.

3. If the Defendant, who intended to plead to the Iurisdicti­on, is prevented by any Artifice, as by giving a short day, or by the Attornies refusing to plead it, &c. or if his Plea be not accepted or is over-ruled; in all these Cases a Prohibition likewise will lie at any time.

And the Chief Iustice and Wyndham Iustices were of Opi­nion that after the Defendant had admitted the Iurisdiction by pleading to the Action, especially if Verdict and Iudgment pass, the Court will not examine whether the Cause of Action did arise out of the Iurisdiction or not. But Atkyns and Scroggs Iustices said nothing to this last point, but that many times an advantage given by the Law was lost by coming too late, and instanced that a Visne may be changed in time, but not if the Party come too late; so if the time of the promise be laid above six years from the time of the Action brought, if the Statute of Li­mitations be not pleaded, the Defendant cannot take afterwards advantage of it.

Whereupon a Prohibition was denied, and Iudgment was given for the Defendant.

Birch versus Wilson.

Plea, tho' it amount to a gene­ral Issue, if it doth dis­close mat­ter of Law besides, it shall not be demurred unto.IN an Action on the Case, the Plaintiff declared that he was seised of a Mesuage and several Lands in the Parish of Dale, and that he and all those whose Estate he hath, have used to have right of Common, for all Commonable Cattle, Levant and Couchant upon the Premisses, in a certain Meadow there, called Darpmore Meadow, and in a certain place called Cannock Wood. That the Defendant praemissorum non ignarus, had enclosed the said places in which the Plaintiff had right of Common, and likewise put in his Cattle, as Horses, Cows, Hoggs, Geese, &c. so that he could not in tam amplo & bene­ficiali modo enjoy the same.

The Defendant as to the Inclosure and putting in of his Hoggs and Geese pleaded Not Guilty: And as to the residue, That the Lord Paget was seised of a Mesuage, 300 Acres of Land, 40 Acres of Meadow, and 100 Acres of Pasture, and likewise of Darpmore Meadow and Cannock Wood; and being so seised did by Deed of Bargain and Sale enrolled, in consideration of 2000 l. convey the said Mesuage, 300 Acres of Land, 40 Acres of Meadow, and 100 Acres of Pasture, to the Defendant and his Heirs, and by the same Deed, did Grant unto him all Waies, Commons, and Emoluments whatsoever, to the said Mesuage and Premisses belonging, or therewithal used, occupied or en­joyed, or taken as part, parcel or member thereof, virtute cu­jus the Defendant became seised of the Premisses; and that the same were leased and demised for years by the said Lord Paget, and all those whose Estate he had a tempore cujus contrarii memoria hominum non existit; and that the Tenants or Occu­piers thereof a tempore cujus, &c. used to have Common in Darpmore Meadow, and Cannock Wood, for all commonable Cattle Levant and Couchant upon the Premisses, and used to put in their Cattle into the said places, in which, &c. virtute cujus the Defendant having Right, did put in his said Cattle into the said Places, to take Common there, and averred, That there was Common sufficient both for the Plaintiff and him­self.

To this Plea the Plaintiff Demurred.

This Case was argued by Serjeant Pemberton for the Plain­tiff, and by Serjeant Weston for the Defendant;Ex parte Quer. and for the Plaintiff it was said, That it was no good Plea, but rather a design to introduce a new way of Common.

The Reasons offered why the Plea was not good, were

1. Cro. Car. 419. That the Defendant could not prescribe because of the Vnity of Possession, for the Lord Paget had the Premisses in and to which, &c. and therefore he hath prescribed by a colla­teral matter, Viz. by alledging that the Land was usually let to Tenants for years, but doth not say whether they were Te­nants by Copy of Court Roll or not, neither doth he make out any Title in them.

In some Cases where a Man is not privy to the Title, he may say generally that the Owners and Occupiers used to do such a thing, &c. and this way of Pleading may be good; but here the Defendant claiming under them, ought to set forth their Title, or else he can have no Right to the Common.

2. By this Plea he intended that the Lord Paget had made a New Grant of this Common; for he sets forth, That he grant­ed the Premisses, and all Commons used with the same, and so would intitle himself to a Right of Common in those two places, as if Common had been expressly granted to him there, which if it should, 'tis but argumentative, and no direct affirm­ance of a Grant, upon which the Plaintiff might have replied non concessit, for no Issue can be joyned upon it.

3. He ought to have set forth, That the Tenants lawfully en­joyed the Common there; but he lays only an usage to have Com­mon, which may be tortious.

4. He doth not say, That there is sufficient Common for all the Commoners, but only for the Plaintiff and himself: 'Tis true, the Owner of the Soil may feed with his Tenant, who hath a Right of Common, but he cannot derogate from the first, by streightning the Common by a second Grant, and so leave not sufficint for the Tenant.

5. This Plea amounts to the General Issue,Cro. Car. 157. and the Plain­tiff hath specially assigned that for a Cause of Demurrer; for he saith, That the Defendant, without any Title, put in his Cattle, by which the Plaintiff had not sufficient Common; and the Defendant pleads he put in his Cattle rightfully, and the Plaintiff had Common enough, which if it signifie any thing, must amount to Not Guilty.

Ex parte Def.But on the other side, the last Objection was endeavoured to be answered first, because if that hold, yet if the Plea be never so good in Substance, the Plaintiff would have Iudg­ment.

It was agreed that this Plea doth amount to a General Issue, and no more, but that every Plea that doth so, is not therefore bad; for if it otherwise contain reasonable matter of Law, which is put upon the Court for their Iudgment, rather than referred to the Iury, there is is no cause of Demurrer, for it is the same thing to have the doubt or question in Law before the Iudges in Pleading, as to have it before them upon a Special Verdict.

In 2 R. 2. 18. A Retainer was pleaded specially by an Admi­nistrator, which is no more than Plene Administravit, yet no De­murrer; but the Book saith that the Court ought to be moved.

2. The Plea is good as to the matter of it; for the Defen­dant claims the same Common by his Grant which had been used time immemorial, and alledges it to be of all Common used with the Premisses, and this was a Common so used.

In Trespass the Defendant justified that Godfrey was seised in Fee of a House, and of 20 Acres of Land, and that he and all those, &c. had Common in the place where, &c. to the said Messuage belonging; and that he made a Feoffment to Brad­shaw of the same, who made a Lease thereof to the Defen­dant, with all Profits and Commodities thereunto belonging, vel occupat vel usitat cum praedicto Mesuagio: It was adjudged that though the Common was gone and extinct in the Hands of the Feoffor by the unity of the Possession, yet those Words were a good Grant of a New Common for the time granted in the Lease, and that it was quasi a Common in the Hands of God­frey the Feoffor, Cro. Eliz. 570. Godfrey versus Eyre.

And though it hath been objected, That this Plea is not for­mally pleaded, because it ought to have been direct in alledg­ing a Grant; whereas it was only argumentative, and brought in by a side Wind, he said, That as bad as it was, 'twas drawn by that Serjeant who argued against him, and who did very well know that the Averment of sufficiency of Common was needless.

Curia.The Court were all of Opinion, That though the Plea did amount to the general Issue, yet for that reason alone the Plaintiff had no cause of Demurrer; for the Defendant may [Page 277] well disclose the matter of Law in Pleading, which is a much cheaper way than to have a Special Verdict, and that this is on the same reason of giving of colour; but if the matter by which the Defendant justifies, be all matter of Fact and proper for the Tryal of a Iury, then the Dfendant ought to plead the General Issue.

And as to the Matter of the Plea, the Chief Iustice and Wyndham Iustice held it to be good; for the Common which was pleaded was a Common by Grant and not argumentatively plead­ed; for if the Defendant had pleaded an express Grant of Com­mon in those two places, and the Plaintiff had demanded Oyer of the Deed, it would have appeared that there was no such Deed, and this had been a good cause of Demurrer.

If this Plea should not be good it would be very mischievous to the Defendant; for there being a perpetual Vnity, as to the Freehold there can be no Prescription to the Common; but there being a constant enjoyment thereof by the Tenants, and so a perpetual Vsage and a Grant made referring to that Vsage, 'tis well enough: And since, whilst the Lands were in possession of the Lord, the Commoners could not complain of a Sur­charge; why should they, if he grant the Premisses, the Granteé being in loco, &c.

In the Case of the King a Grant of tot & talia Libertates & Privilegia quot & qualia the Abbot lately had,9 Co. 23. Ab­bot de Strata Marcella. was held good by such general Words: Here the Lord Paget granted to the Defendant that which the Lessées had before, viz. that Common which the Tenants had time out of mind; and it cannot be con­ceived, but that the Tenants had a Right; for as a Tort can­not be presumed to be from time immemorial, so neither shall it be intended that the Lord gave only a Licence, and permitted his Tenants to enjoy this Common.

But Iustice Atkins was of Opinion that the Plea was not good; he said, he knew not by what Name to call this Com­mon; for it was no more than a Permission from the Lord, that the Tenants might put their Cattle into his Freehold, or a Connivance at them for so doing; and if it be taken as a new Grant, then nothing can pass, but the Surplus; for the Lord cannot derogate from his former Grant, and the new Grantee shall not put in an equal proportion with him who hath the Pre­scription; for if he may, then such Prescription would be quite destroyed by such puisne Grant; for as the Lord might grant to [Page 278] one, so he might to twenty, and then there would not be suffi­cient Common left for him, who prescribes to the Right: So that he conceived that the Defendant had no Right of Common, or if he had any, it would not be till after the Right of the Plain­tiff was served; and he said that Vsage shall not intend a Right, but it may be an Evidence of it upon a Tryal.

But if there had been an Vsage 'tis now lost by the Vnity of the Possession, and shall not be revived by the new Grant, like the Case of Massam and Hunter; Yelv. 189. there was a Copyholder of a Messuage and two Acres in Feé, which the Lord afterwards granted and confirmed to him in Fee cum pertinentiis, it was adjudged that though the Tenant by Vsage had a Right to have Common in the Lord's Wast, yet by this new Grant and Con­firmation that Right was gone (the Copyhold being thereby ex­tinguished;) for the Common being by Vsage and now lost, these Words cum pertinentiis in the new Grant will not re­vive it.

But notwithstanding Iudgment by the Opinion, of the other three Iustices, was given for the Defendant.

Week's Case.

A Prohibition was prayed to the Ecclesiastical Court at Bristol; the Suggestion was that he was excommunicated for refusing to answer upon Oath to a Matter by which he might accuse himself, viz. to be a Witness against another; that he himself was present such a day, and saw the other at a Conven­ticle, which if he confessed, they would have recorded his Con­fession of being present at a Meeting, and so have proceeded a­gainst him.

The Court granted a Prohibition, but ordered him to appear in the Ecclesiastical Court to be examined as to the other persons being there.

Anonymus.

A Man wins 100 l. of another at play;Gaming not within the Statute, where the Security is given to a third per­son. the Winner owed Sharp 100 l. who demanded his Debt; the Winner brought him to the other, of whom he won the Mony at Play, who aknowledged the Debt, and gave Sharp a Bond for the payment of the 100 l. who not being privy to the Matter, or knowing that it was won at Play, accepted the said Bond, and for default of payment puts it in Suit; the Obligor pleads the Statute of Gaming.

The Plaintiff in his Replication discloseth the Matter afore­said and saith, that he had a just Debt due and owing to him form the Winner, and that he was not privy to the Monies being won at Play, &c. and that he accepted of the said Bond as a Security for his Debt; and the Defendant demurred.

And the Court were all of Opinion,Hill and Phe­sant, Antea. that this Case was not within the Statute; the Plaintiff not knowing of the Play, and though it be pleaded that the Bond was taken pro Securitate, and not for satisfaction of a just Debt, it was held well enough, like the Case of Warns and Ellis, Yelv. 47. Warns owed Alder 100 l. upon an usurious Contract, and Alder owed the Plaintiff Ellis 100 l. for which they were both bound; and in an Action of Debt brought upon this Bond Warns pleads the Statute of Vsury be­tween him and Alder; and Ellis replyed as the Plaintiff here; and upon a Demurrer it was adjudged for the Plaintiff by thrée Iudges, because the Plaintiff had a real Debt owing him and was not privy to the Vsury: And upon this Case the Court relyed, and said, the Reason of it governed this Case at the Barr; where­upon Iudgment was given for the Plaintiff.

Tissard versus Warcup.

INdebitatus Assumpsit for 750 l. laid out by the Plaintiff for the use of the Defendant: Vpon Non assumpsit pleaded, there was a Tryal at the Barr; and the Evidence was, that the Defendant and another, now deceased, farmed the Excise; that the Mony was laid out by the Plaintiff on the behalf of the Defendant and his Partner; and that the Defendant promised to repay the Mony out of the first Profits he received.

Curia.And by the Opinion of the whole Court this Action would not lie.

1. Two Partners being concerned the Action cannot be brought against one alone; he ought in this Case to have set out the death of the other: But if Iudgment be had against one, the Goods in Partnership may be taken in Execution.

1 Cro. 239. Hob. 180. Rol. Rep. 233.2. The Promise here was not to pay the Mony absolutely, but sub modo; so that the Evidence did not maintain the Action; and the Plaintiff was Nonsuited.

Nichols versus Ramsel.

Release of all De­mands us (que) 26 Apr. a Bond dated that day is not re­leased.TRespass done 24 Martii 26 Car. 2. usque 26 Augusti 28 Car. 2. diversis diebus & vicibus, &c.

The Defendant pleaded that on the 24th day of April in the 26th year of King Charles the Second he paid the Plaintiff 6 d. which he received in full satisfaction of all Trespasses usque ad the said 24th day of April, absque hoc that he was guilty ad aliquod aliud tempus praeter praedictum 24 Aprilis anno 26 Car. 2. aut aliquo tempore postea, but leaveth out the 24th day of April; and for that Reason the Plaintiff demurred, because the Defendant had not answered that day, for the Word usque excludes it.

So where Debt was brought upon a Bond dated 9 Julii, the Defendant pleaded a Release of all Actions,Owen '50. 2 Rol. Abr. 521. &c. the same day usque diem dati ejusdem scripti, the Bond was not discharged, because the Release excludes the 9th day, on which it was made.

But Serjeant Weston contra. Though generally in pleading the Word usque is exclusive; yet in the Case of Contracts, be­cause of the intent of the Parties, 'tis inclusive; and therefore in one Nichol's Case, 20 Car. 2. in B. R. Rot. 21. (the Term was not named) a Lease was made Habendum from Lady-day usque Festum Sancti Michaelis, 1665. paying the Rent reserved at Mi­chaelmas during the Term; the Rent shall be paid on Michaelmas-day, 1665. and so the day shall not be excluded.

So where a Man prescribes to put Cattle from and immedi­ately after Lady-day, where they are to stay till Michaelmas-day; the putting them in on Lady-day and driving them away on Mi­chaelmas-day is not justifiable in strictness, yet it hath been al­lowed good.

So in a Devise the Question was, whether the Testator was of Age or not; and the Evidence was, that he was born the first day of January in the Afternoon of that day, and died in the Morning on the last day of December: And it was held by all the Iudges that he was of full Age, for there shall be no fraction of a day.

North Chief Iustice said, that prima facie this is to be intended good; for a day is but Punctum temporis, and so of no great con­sideration.

But the other three Iustices were of Opinion, that the Word Usque was exclusive; and that the Plaintiff should not be put to shew that there was a Trespass done on the 24th of April; and said that in a Release of all Demands till the 26th of April, a Bond dated that day is not released; wherefore Iudgment was given for the Plaintiff.

Trevil versus Ingram.

COvenant to pay an Herriot post mortem J. S. or 40 s. at the election of the Plaintiff;Release of all De­mands doth not barr a future Du­ty. Mod. Rep. 216. and sets forth the death of J. S. and that afterwards he chose to have the 40 s. for which he brought this Action, and assigns the Breach for Non payment.

The Defendant pleaded that the Plaintiff released to him all Actions and Demands, &c. But this Release was made in the Life time of J. S. and there was an Exception in it of Herriots.

The Plaintiff demurred, and Serjeant George Strode argued that this Action was not discharged by that Release, and cited Hoes Case, 5 Co 70. where it was held, that a Duty incertain at first, which upon a Condition precedent was to be made cer­tain afterwards, was but a possibility which could not be released; that the Duty in this Case was incertain, because the Plaintiff could not make his Election till after the death of J. S.

A Covenant to repair,2 Cro. 170. Roll. Abr. 407. But a Release of all Cove­nants in such an Indenture had been a Barr, 5 Co. 71. a. and a Release pleaded to it within thrée days after the date of the Indenture: And upon a Demurrer it was held, that it being a future Covenant, and not in demand at the time of the Release, although it was of all Demands, yet that Covenant was not thereby released.

So here neither the Herriot nor the 40 s. were either of them in demand at the time of the Release given, and it plainly appears by the Exception in the Release that it was the intention of the Parties not to release the Herriots;2 Cro. 623. and of that Opinion was the whole Court; whereupon Iudgment was given for the Plaintiff.

North Chief Iustice: It is the Opinion ofSect. 508, 510. 2 Roll. Abr. 408. Sid. 141. Littleton, That a Release of all Demands doth Release a Rent: And of that Opinion was Iustice Twisden in the Argument of Hen and Hanson's Case, though it was resolved there, that a Re­lease of all Demands did not discharge a Rent reserved upon a Lease for years, because such Rent is executory, and incident to the Reversion,2 Cro. 486. and grows every year out of the Land; but when it is severed from the Reversion, as by assigning over the whole Term, then it becomes a Sum in gross, and is due upon the Contract, and in that Case a Release of all Demands discharges a Rent afterwards due.

DE Term. Sancti Hill. Annis 29 & 30 Car. II. in Communi Banco.

Shambrok versus Fettiplace.

PRohibition.Prescripti­on to have an Isle in a Church be­cause of re­pairing, no good cause for a Prohi­bition. Hob. 69. The Question was whether a Prescription be good to an Isle in a Church which he and all those, &c. used to repair, as belonging to a Mannor, where he had no Dwelling House but only Land; and Serjeant Geo. Croke argued that it was good, and cited the Case of Boothby and Bayly, where such a Prescription as this was held to be a good ground for a Prohibition, Vide Moor Rep. 878. contra.

The Court inclined that it was not good, but ordered the Pro­hibition to go, and the Defendant to plead, that it might come Iudicially before them to be argued.

Dashwood versus Cooper & alios, in Cammera Scac­carii.

ERror of a Iudgment in Trespass,In a Nega­tive Plea, viz. That three did not such a thing, it must be said nec eo­rum aliquis. wherein Cooper and others brought an Action of Trespass against Dashwood for en­tring into a Brew-house and keeping of possession, and taking away of 50 s.

The Defendant pleaded, That the Plaintiffs had committed an Offence against the Statute of 12 Car. 2. cap. 23. by which it is Enacted, That all Offences thereby prohibited (except in [Page 284] London) shall be heard by two or more of the next Justices of Peace, and in case of their neglect or refusal by the space of 14 days after complaint made, then the Sub-Commissioners of the Excise are to determine the same, from whom no Appeal doth lye to the Justices of the Peace at their next Sessions, which Commissioners of Excise, Justices of the Peace and Sub-Commis­sioners amongst other things are inabled by the said Act, to Issue out Warrants under their Hands, &c. to levie the Forfeitures, and so justified the Entry under a Warrant from the Sub-Com­missioners, three Iustices having refused to hear and determine this Offence.

To this Plea the Plaintiffs demurred, and had Iudgment in the Court of Kings-Bench, and a Writ of Inquiry of Da­mages was Executed, and 750 l. Damages given; and it was alledged that the Defendant could not move to set aside the Iudgment in that Term it was given, because the Writ of In­quiry was executed the last day of the Term, and the Court did immediatly rise; and that he could not move the next Term, because the Iudgment was given the Term before the Writ of Error was brought.

The Attorny General therefore said that this was a hard Case, and desired a Note of the Exceptions to the Plea, which he would endeavour to maintain, which Mr. Pollexfen gave him, and then he desired time to answer them.

The Exception to the Plea upon which the Iudgment was gi­ven was this;

Viz. The Act giveth no power to the Sub-Commissioners to hear and determine the Offences, and so to issue out Warrants for the Forfeitures, but where the Iustices or any two of them refuse: And though it was said by the Defendant that three refused, yet it was not said that two did refuse; for there is a great difference between the allegation of a thing in the Affir­mative and in the Negative; for if I affirm that A. B. C. did such a thing, that affirmation goes to all of them, but negative­ly it will not hold; for if I say A. B. C. did not such a thing, there I must add nec eorum aliquis.

So if an Action be brought against several Men, and a Nolle prosequi is entred as to one, and a Writ of Enquiry awarded against the rest, which recites, That the Plaintiff did by Bill implead (naming those only against whom the Inquiry was awarded, and leaves out him who got the Nolle prosequi) this is a variance, for it should have been brought against them all.

'Tis true, where a Iudgment is recited 'tis enough to men­tion those only against whom it is had, but the Declaration must be against all; so in a Writ of Error if one is dead he must be named; and so the Iustices ought all to be named in this Case, viz. that the three next Iustices did not hear and de­termine this Offence, nec eorum aliquis.

Wells versus Wright. In Communi Banco.

DEBT upon Bond conditioned,Bond with an insensi­ble Condi­tion, good. that if the Obligée shall pay 20 l. in manner and form following, that is to say, 5 l. upon four several days therein named; but if default shall be made in any of the Payments, then the said Obligation shall be void, or otherwise to stand in full force and vertue.

The Defendant pleads that tali die, &c. non solvit 5 l. &c. and upon this the Plaintiff demurred.

Barrel Serjeant. The first part of the Condition is good, which is to pay the Mony, and the other is surplusage void and insensible; but if it be not void it may be good by transsposing thus, viz. If he do pay, then the Obligation shall be void; if de­fault shall be made in Payment then it shall be good; and for Authority in the Point the Case of Vernon and Alsop was cited,Sid. 105. 1 Sand. 66. 2 Sand. 79. Hill. 14 Car. 2. Rot. 1786. in B. R. Where the Condition was, that if the Obligée pay 2 s. per Week, until the Sum of 7 l. 10 s. be paid (viz. on every Saturday) and if he fail in Payment at any one day that the Bond shall be void; and upon the like Plea and Demurrer as here, it was adjudged that the Obligation was single, and the Condition repugnant.

The Court were all of Opinion, that Iudgment should be given for the Plaintiff; and the Chief Iustice said, that he doubted whether the Case of 39 H. 6. 9, 10. was Law.

Brittam versus Charnock.

Where the the Heir takes by the Will with a Charge, he is a Purcha­ser, and the Lands shall not be As­sets.DEBT upon Bond against the Defendant as Heir: Vpon Riens per discent pleaded, the Iury found a Special Ver­dict, in which the Case was: viz.

The Father was seized of a Messuage and thrée Acres of Land in Fee, and devised the same to his eldest Son, (the Defendant) and his Heirs within four years after his decease, provided the Son pay 20 l. to the Executrix towards the Payment of the Testators Debts, and then he deviseth his other Lands to be sold for payment of Debts, &c. The Father dies, the Son pays the 20 l. and if this Messuage &c. was Assets in the Hands of the Defendant, was the Question.

Cro. Car. 161. Cro. Eliz. 431. 833. Vaugh. 271.That it was not Assets (it was said) because the Heir shall not take by descent, but by Purchase; for the Word Paying is no Condition, if it should, the Heir is to enter for the breach, and that is the Defendant himself; and for that reason it shall be a Limitation.

Southcot and Stowel, Antea,'Tis true, where there is no alteration of the Estate the Heir must take by descent; but in this Case there is an alteration of the Estate from what is directed by the Law, viz. the manner how he shall come by the Estate, for no Fee passeth to him during the four years.

But this was denyed by Serjeant Pemberton, for he said, if a Devise be of Land to one and his Heirs within four years, it is a present Devise, and if such be made to the Heir 'tis a descent in the mean time, and those Words (within four years) are void; so that the Question will be, whether the Word Paying will make the Heir a Purchaser; and he held it would not: He agreed, that it was usual to make that a Word of Limitation, and not a Condition when the Devise is to the Heir; and there­fore in a Devise to the Heir at Law in Fée he shall take by descent, Styles Rep. 148.

But if this be neither a Condition or Limitation, 'tis a Charge upon the Land, and such a Charge as the Heir cannot avoid in Equity.

North Chief Iustice and Atkins. Where the Heir takes by a Will with a Charge, as in this Case, he doth not take by Descent, but by Purchase, and therfore this is no Assets.

Moor versus Pit.

SPecial Verdict in Ejectment; The Case was this,Surrender of a Copyhold to a Disseisor, whether good to ex­tinguish the Right. viz. A Co­pyholder for Life, the Remainder for Life, he in Remainder for Life surrenders the Copyhold to the Lord pro tempore (who was a Disseisor only of the Mannor) ut inde faciat voluntatem suam; the Disseisor grants it to a Stranger for Life, the Disseiseé enters, the Stranger dies, and whether the Disseisor or he in the Remainder for Life, who made the Surrender, had the better Title, was the Question.

So that the Point was,Cro. Car. 205. 2 Sid. 151. 1 Roll. Abr. 540. whether this Surrender by a Copy­holder in Remainder into the Hands of the Disseisor be good, and shall so extinguish the Right to the Copyhold, that it shall not be revived by the Entry of the Disseisee into the said Mannor.

It was said that in some Cases a Surrender into the Hands of a Disseisor was good, that is, when the Surrender is made to him to the use of another and his Heirs, and he admits him, there the person admitted claims not under the Lord, but under the Copyholder, who made the Surrender;1 Inst. 59. b. for nothing passes to the Lord, but only to serve the Limitation of the Vse, 1 Rol. Abr. 503. litt. Q. pl. 1.4 Co. 24.

But in this Case the Grantée must claim from the Lord him­self, and not from the Copyholder, because he had but an Estate for his own Life, with which he wholly departed when he made the Surrender to the use of the Disseisor himself.

In Trinity-Term following this Case was argued by Serjeant Maynard on the other side.

There are two sorts of Surrenders of a Copyhold.

  • 1. Proper.
  • 2. Formal and Ceremonious.

If a Surrender be to the Lord to the use of another, this is no proper Surrender; for no Estate passeth to the Lord he being only the Instrument to convey it to the Surrendree, and this is but nominal.

But here the Surrender was to the use of the Lord himself, which is a proper Surrender, and in such Case 'tis necessary that the Lord have a Reversion, for one Estate is to be turned into the other, and there must be a continuing of Estates.

But Dominus pro tempore, who is a Disseisor hath no such E­state: Executor de son tort shall sue, but he cannot retain.

If therefore he is not capable to take a Surrender to himself, unless he hath such an Estate, then here is no Disseisin of the Copyhold, 'tis only of the Mannor; and then no greater Inte­rest passeth to the Disseisor than to a Stranger, whilst the true Lord had been in possession, for so he is quoad this Copyhold if he was not disseised of it; for if the Copyholder had the possession there could be then no Disseisin; if he was out of possession then he had nothing but a Right, and that cannot be surrendred, for it must be an Estate; as if a Lessee for years keep possession, 'tis the possession of the Lord, and the Law is the same in case of a Copyhold, 2 Co. Bettisworth's Case.

Piggot and Lord Salisbu­ry's Case, AnteThe true Owner makes a Feoffment in Fee, if Lessee for years continue in possession no Fréehold passeth.

If Tenant at Will of parcel of the Mannor be in possession that prevents a Disseisin of the Freehold, much more in Case of a Copyhold.

Lessee for years, the Remainder to B. for Life, the Remainder to C. in Fee; C. by Deed makes a Feoffment to B. and Livery, &c. 'tis a void Conveyance, because the possession of Lessee for years is the possession of him in the Remainder for Life, and as long as the Lessee for years is in the possession, the Owner of the Inheritance cannot be out, Lit. 324. cap. Attornment.

North Chief Iustice and Wyndham enclined that the Surren­der was not good; for it was a material distinction where the Surrender was made to the use of a Stranger, and where it terminates in the Lord; that a Surrender made by a Copyhol­der for Life could not transfer, but extinguish his Right; for he could not give a greater Estate than he had; that there must be a Reversion in the Lord to make a Surrender to him to be good; and that if a Copyholder keeps in possession there could be no Disseisin.

But Iustice Atkins contra. That this Surrender must have operation to extinguish his Right; for though a Copyholder for Life cannot surrender for longer time than his own Life; yet if a Surrender be made of such a Copyhold to an Vse 'tis good, and works by way of Extinguishment of his Right though the Vse be void; and if a Copyholder of Inheritance surrender to a Disseisor, ut faciat voluntatem, who regrants to the said Copyholder an Estate in Tail according to the Surrender, this shall bind the Disseisee, 1 Roll. Abridg. 503. pl. 3. Tamen quaere.

The Copyholder in this Case might have sold his Estate to the Disseisor, and it had béen good; and though the Acts of a Disseisor shall not prejudice the Disseisee, yet he could see no reason why the Copyholder, who had parted with his Estate, should have it again.

Taylor versus Biddal.

SPecial Verdict in Ejectment: The Case was thus;Devise till he be of Age, then to him in Fee, he dy­ed within Age, yet a Fee vested in him pre­sently. Richard Ben was seised in Fee of the Lands in question, and had a Sister named Elizabeth, formerly married to one Smith, by whom she had Issue Augustine Smith, now Lessor of the Plaintiff, and she afterwards married one Robert Wharton, by whom she had Issue a Son called Benjamin, and a Daughter called Mary, the now Defendant.

Richard Ben devised these Lands to Elizabeth his Sister and Heir, for so long time, and until her Son Benjamin Wharton should attain his full Age of 21 years; and after he shall have attained his said Age, then to the said Benjamin and his Heirs for ever; and if he dye before his Age of 21 years, then to the Heirs of the Body of Robert Wharton and to their Heirs for ever as they should attain their respective Ages of 21 years.

Richard the Testator dies, Benjamin dyed before he came to the Age of 21 years, living Roberr Wharton his Father, afterwards Robert dyed.

And the Question was, Whether the Lessor of the Plaintiff as Heir to Elizabeth, or Mary either as Heir to her Brother Benja­min, or as Heir of the Body of Robert should have this Land?

This Case was argued by Serjeant Pemberton this Term,Ex parte Quer. and by Serjeant Maynard in Easter-Term following for the Plaintiff, and they held that Augustine Smith, the Lessor of the Plaintiff, should have this Land, because no Estate vested in Benjamin Wharton, he dying before he had attained his Age of 21 years, and the Testator had declared, that his Sister should have it till that time, and then and not before he was to have it; so that if he never attained that Age (as in this Case he did not) the Land shall descend to the Heir of the Testator; that Elizabeth had only an Estate for years, and so having no Freehold the Contingent Remainder could not be supported; that Mary could not take by way of Exe­cutory Devise, because Robert was living when his Son Benjamin dyed within Age; that therefore 'tis quasi a Condition precedent, Grant's Case, 10 Co. cited in Lampet's Case. 1 Leon. 101.

There is a difference between Boraston's Case and this at the Barr; for that was a Devise to Executors till Hugh shall attain his Age of 21 years, and the mean Profits in the mean time to be applyed by them for payment of the Testators Debts; and be­cause he might have computed how long it would be before his Debts could be paid; therefore it was adjudged that after the death of Hugh within Age, the Executors should continue in pos­session till Hugh might have attained his full Age had he lived, and so a present Devise to them.

But here the Devise is generally till Benjamin Wharton shall attain his Age of 21 years, so that nothing vested in him until that time, and he dying before, then the Estate shall descend to the general Heir, who is the Plaintiff.

2. Admitting this should be taken as an executory Devise, there must be some person capable to take when the Contingency hap­pens, and there was no such person in this Case; for Robert was alive when Benjamin dyed, and Mary could not then take as Heir of his Body, for Nemo est haeres viventis; like the Case of2 Cro. 590. Vaugh. 272. Pell and Brown, viz. Brown had Issue William and Thomas, he devises Land to his youngest Son Thomas and his Heirs, and if he dye (living William) then to William and his Heirs; Thomas did dye without Issue living William, and it was adjudged that if those Words (Li­ving William) had been left out of the Will, Thomas would have a Fee Tail, which he might have docked by a Common Recovery; but by reason of those Words he had only a limited Fee, because the Words (viz. If he dyed without Issue) are not indefinite to create a Tail, but are restrained to his dying without Issue (Li­ving William) which is a limited Fee; and his Estate being de­termined, William then had a Fee; but if he had died before the Contingency happened, viz. in the Life time of Thomas, and then Thomas had dyed without Issue the Heirs of William would not have an Estate in Fée for the Reasons aforesaid.

If therefore nothing vested in Benjamin Wharton, nor in Mary his Sister, then the Land descends to Augustine Smith as Heir at Law to Elizabeth, who was Heir to the Testator, and so the Plaintiff hath a good Title.

Ex parte Def. Newdigate Serjeant contra. Here is only an Estate for years in the Sister of the Testator, and an Estate in Fee presently vested in Benjamin Wharton; and he relyed upon Boraston's Case, where the Father having Issue, Humfry and Henry, devised to his Executors till Hugh his Grandson, the Son of Henry should be of Age, and then to him in Fée; it was there adjudged that the Executors had a Term till Hugh might have attained his full Age, and that [Page 291] though he dyed at the Age of nine years, yet the Remainder did immediately vest in him in possession upon the death of his Grand­father, and that by his dying without Issue the Lands did descend to his Brother.

So here the Fee descends to Benjamin Wharton in possession, and he dying without Issue and within Age, the Land shall then descend to his Sister and Heir.

The like Iudgment was given in the Case of Taylor and Wharton about 12 years since; and in Dyer 124. a. A Devise to his Wife till his Son shall be of the Age of 24 years, then to the Son in Fee; and if he die before 24 years without Issue, then to the Wife for Life, the Remainder to A. &c. The Testator dyed,2 Leon. 11. pl. 16. Dyer 354. a. it was adjudged that the Son had a Fee simple presently, for an E­state tail he could not have till he was 24 years old; and after the death of his Father there was no particular Estate to support that Estate in the Remainder till he should come to the Age of 24 years, so that he took by descent immediately.

So here a Feé vested in Benjamin presently, and he being dead within Age Mary may take as Heir; however when she is of Age she shall take as Heir of the Body of Robert by way of execu­tory Devise arising out of the Estate of the Devisor,Stiles 240. Owen 148. which needs no particular Estate to support it, as in case of a Contingent Re­mainder; for before Mary was of Age Robert her Father was dead, and so she might well take, Trin. 19 Car. 2. in B. R. Snow versus Cutler, Rot. 1704.

North Chief Iustice.Curia. Favourable distinctions have béen always admitted to supply the meaning of Men in their last Wills; and therefore a Devise to A. till he be of Age, then to B. and his Heirs, this is an Estate for years in A. with a Remainder in Feé to B And if such a Devise to A. who is also made Executor or for payment of Debts, it shall be for a certain Term of years, viz. for so long as according to computation he might have at­tained that Age had he lived.

Contingent Remainders are at the Common Law and arise upon Conveyances as well as Wills; one may limit an Estate to A. the Remainder to another; and so it may be by Devise, if the intent of the Parties will have it so.

But as at the Common Law all Contingent Remainders shall not be good, so in Wills no such latitude is given, as if none could be bad; they are subject to the same Fate in Wills as in Conveyances.

In this Case Elizabeth had a Term till Benjamin Wharton be of Age, for she is Executrix; she was likewise Heir at Law to the Devisor, and this Land had gone to her, had it not béen for this Will; so that 'tis plain the Testator never intended that a Fee-simple should vest in her, but somewhere else; for he could never intend the Descent of the Inheritance to that person to whom he had devised the Term.

It has beén argued, that Mary is Heir at Law to Benjamin as well as Heir of the Body of Robert, and so if she can take either way 'tis good; but to make her Heir to Benjamin 'tis necessary that the Estate vest in him before he comes to 21 years; and for that Boraston's Case was much relyed on, which was also said not to differ from this at the Barr; that an Estate passes to Benjamin Wharton in praesenti, and that there was no Incapacity for Mary to take by way of Executory Devise, as was urged on the other side, and therefore why should she not take by way of Executory Devise as Heir of the Body of her Father, or at least, as Heir of Benjamin her Brother?

An Executory Devise needs no particular Estate to support it, for it shall descend to the Heir till the Contingency happen; 'tis not like a Remainder at the Common Law, which must vest eo instanti that the particular Estate determines; but the Learning of Exe­ecutory Devises stands upon the Reasons of the old Law, where­in the intent of the Devisor is to be observed: For when it ap­pears by the Will that he intends not the Devisee to take but in futuro, and no disposition being made thereof in the mean time, it shall then descend to the Heir till the Contingency happen; but if the intent be that he shall take in praesenti, and there is no incapacity in him to do it, he shall not take in futuro by an exe­cutory Devise.

Sid. 153. pl. 2.A Devise to an Infant in ventre sa mere is good, and it shall descend to the Heir in the mean time; for the Testator could not intend he should take presently; he must first be in rerum natura.

3 Co. 20. a. 1 Inst. 378. a.If an Estate be given to A. for Life, the Remainder to the right Heirs of B. this is a contingent Remainder, and shall be governed by the Rules of the Law; for if B. dye during the Life of A. 'tis good; but if he survive 'tis void, because no Body can be his right Heir whilst he is living; and there shall be no descent to the Heir of the Donor in the mean time to support this contingent Remainder, that so when B. dies his right Heirs may take.

In this Case a Fée did vest in Benjamin presently, and there­fore after his death without Issue the Defendant is his Heir, [Page 293] and hath a good Title, if not as Heir at Law, yet she may take by way of Executory Devise as Heir of the Body of her Father, which though it could not be whilst he was living, (because nemo est haeres viventis,) yet after his death she was Heir of his Body, and was then of Age, at which time, and not before, she was to take by the Will.

That Elizabeth the general Heir had only an Estate for years till Benjamin should or might be of Age: And so by the Opinion of the whole Court Iudgment was given for the Defendant.

Evered versus Hone.

SPecial Verdict in Ejectment; wherein the Case was thus, viz.

A Man hath Issue two Sons, Thomas his eldest and Ri­chard his youngest Son.

Thomas hath Issue John.

Richard hath Issue Mary.

The Father devised Lands to his Son Thomas for Life,Constructi-of Words in a Devise. and afterwards to his Grandson John, and the Heirs Males of his Body; and if he die without Issue Male, then to his Grandaugh­ter Mary in Tail, and charged it with some Payments, in which Will there was this Proviso; viz. Provided if my Son Richard should have a Son by his now Wife Margaret, then all his Lands should go to such first Son and his Heirs, he paying as Mary should have done.

Afterwards a Son was born, and the Question was, whether the Estate limited to Thomas, the eldest Son was thereby de­feated: And the Court were all clear of Opinion, that this Pro­viso did only extend to the Case of Mary's being intituled, and had no influence upon the first Estate limited to the eldest Son.

Anonymus.

IN the Exchequer Chamber before the Lord Chancellor,Executor of an Exe­cutor de son tort not lia­ble at Law. the Lord Treasurer and two Chief Iustices, the Case was thus: viz. The Plaintiff had declared against the Defendant as Exe­cutor of Edward Nichols, who was Executor of the Debtor.

The Defendant pleads that the Debtor died intestate, and Ad­ministration of his Goods was granted to a Stranger, absque hoc that Edward Nichols was ever Executor, but doth not say, or ever administred as Executor, for in truth he was Executor de son tort.

The Plaintiff replies, that before the Administration granted to the Stranger, Edward Nichols possessed, himself of divers Goods of the said Debtor, and made the Defendant Executor, and dyed; and the Defendant demurred; and Iudgment was given for the Plaintiff, but reversed here; for an Executor of an Executor de son tort is not lyable at Law, though the Lord Chancellor said he would help the Plaintiff in Equity.

But here Administration of the Goods of the Debtor was granted before the death of the Executor de son tort, so his Exe­cutorship vanished and nothing shall survive.

The Lady Wyndham's Case.

IF Flotsam come to land, and is taken by him who hath no Title, the Action shall not be brought at the Common Law, and no Proceedings shall be thereon in the Court of Admiralty; for there is no need of Condemnation thereof as there is of Prizes: By the Opinion of the whole Court of Common Pleas.

Rose versus Standen.

Action where mis­conceived by the Plaintiff, and Verdict against him no Barr to a new Action.IN Accompt for Sugar and Indigoe; the Defendant pleaded, that the Plaintiff brought an Indebitatus Assumpsit, a quantum meruit, and an insimul computasset for 100l. due to him for Wares sold; to which he pleaded Non assumpsit, and that there was a Verdict against him, and then averrs that the Wares mentioned in that Action are the same with those mentioned here in the Action of Accompt: The Plaintiff demurred, and it was said for him, that he had brought his former Action on the Case too soon; for if no Accompt be stated the Action on the Case on the Insimul com­putasset will not lye, and so the former Verdict might be given a­gainst him for that Reason.

Ex parte Def.But on the contrary, the Defendant shall not be twice troubled for the same thing; and if the Verdict had been for the Plaintiff, that might have been pleaded in Barr to him in a new Action.

Curia. 2 Cro. 284.But the Court were of another Opinion, that this Plea was not good, and that if the Plaintiff had recovered it could not have been pleaded in Barr to him; for if he misconceives his Action and a Verdict is against him, and then brings a proper Action; the Defendant cannot plead that he was barred to bring [Page 295] such Action by a former Verdict,Antea. Putt and Ro­ster, Postea. Rosal and Lamper, Ante. because where 'tis insufficient it shall not be pleaded in Barr; as in Debt upon Bond the De­fendant pleaded another Action upon the same Bond, and the Iury found Non est factum; the Entry of the Verdict was that the Defendant should recover damages, & eat inde sine die, but not quod Querens nil capiat per Breve, so no Iudgment to barr him, 2 Cro. 284.

But pending one Action another cannot be brought, for they cannot both be true.

If no Accompt be stated the Action on the Case upon an Insimul computasset would not lye; the Insimul computasset implies an Accompt; and upon Non assumpsit pleaded, the Defendant might have given payment in Evidence, and for that reason the Iury might find for him. 'Tis true, he might have pleaded Plene computavit, which is the general Plea: But it may as well be presumed that the Verdict was against the Plaintiff, because the Action would not lye; and the Matter being in dubio the Court will intend it against the Pleader, he not having averred to the contrary, and so they held the Plea to be ill.

DE Termino Paschae Anno 30 Car. II. in Communi Banco.

Osborn versus Wright.

ACtion on the Case for words, Viz. The Plaintiff declares that she was unmarried, but about to marry one J. S. and that the Defendant, to hinder her Marriage, spoke these Words of her, Viz. She is a Whore, a Common Whore, and N's Whore, per quod maritagium amisit. The Iury found the Defendant guilty of speaking the Words, but that she did not lose her Marriage thereby; and it was moved in arrest of Iudgment that these Words are not actionable, being only Scolding; and of that Opinion was all the Court, and Iudgment was arrested.

Hambleton versus Justice Scroggs & alios, In Camera Scaccarii.

Serjeant at Law, whe­ther Privi­ledge to be Sued only in the Common-Pleas.AN Assault and Battery was brought against the Defendants in the Kings-Bench, to which one of them pleaded that he was a Serjeant at Law, and so ought to have his Priviledge to be sued by Bill in the Common Pleas, and in no other Court: To this Plea the Plaintiff demurred; and Iudgment was given in my Lord Chief Iustice Hales's time by the Opinion of him and the whole Court of Kings-Bench, That a Serjeant at Law might be sued there, and was not suable in the Court of Common-Pleas only.

2. That in this Action the Defendant should not have his Priviledge, because it was brought against him and another.

And afterwards a Writ of Error was brought upon this Iudg­ment, returnable before the Lord Chancellor, and Chief Iustices [Page 297] of the Kings-Bench and Common-Pleas, and the Errors were ar­gued before the two Chief Iustices at Serjeants-Inn in Chancery Lane.

Mr. Holt for the Plaintiff in the Writ of Error,Ex parte Quer. That a Ser­jeant at Law is to be sued only in the Court of Common-Pleas, and not elsewhere, because there is an absolute necessity of his At­tendance there: He is sworn, and no other person can plead at that Bar, and therefore if he should be sued in any other Court,Vaugh. 155. it would be an Impediment to the Business of that Court, where not only the Officers but their Servants have Priviledge.

In the 11th of E. 4. 2. There was some discourse about the Priviledge of Serjeants at Law, where it was held that he is not to be sued in that Court by Bill, but by Original; but either way he is to have his Priviledge. So the Servant of an Officer is not to be sued by Bill,Cro. Car. 84. but he is still to have the Priviledge of the Court, and so had Serjeant Hedley's Clerk in the Reign of King Charles the first.

The Serjeants receive a kind of Induction to the Bar, and have a place assigned them; and that they ought to have Pri­viledge, the very Words of the Writ are observable, Viz. (men­tioning a Serjeant at Law) ex officio incumbit in Curia illa.

And though it hath been said and given as an answer to that Case in Cro. Car. That where the Serjeants Clerk was Ar­rested in an Inferior Court (as in that Case he was) there he shall have Priviledge, but not against the other great Courts in Westminster-Hall; this is a difference never yet taken notice of in any Book, nor doth the Writ warrant this distinction.

2. He shall have his Priviledge though he be joyned with another, because the Action is joynt and several; and the one may be found guilty and the other acquitted, and it would be an easie way to oust a Man of his Priviledge, if it might be done by joyning him with another who hath none, 14 H. 4. 21.

But the Person with whom the Serjeant is joyned may be sued in the Common-Pleas likewise, so that he shall not hinder him from having Priviledge who of right ought to have it, 10 E. 4. 15.

Offley contra. As to the first point,Ex parte Def. the Court of Kings-Bench agreed, that a Serjeant at Law shall always have the Privi­ledge of the Court of Common-Pleas against all Inferiour Courts, but not against the other Courts in Westminster Hall, for he may be sued in any of them.

A Serjeant is not like the Common Officers of the Court, for they are to be attendant there and no where else; but a Serjeant at Law is not confined to that Court alone, he may be assigned of Council in any other Court, and doth usually put his hand to Pleas, both in the Kings-Bench and the Exche­quer; but a Philazer or Attorny of that Court cannot practise in his own Name in any other.

All Cases of Priviledge ought to be taken strictly: And that which was cited concerning the Priviledge of a Serjeants Clerk is not like this, because the Arrest was in an Inferiour Court.

In the 11 E. 4. 2. b. The Chief Iustice of the Kings-Bench came to the Common-Pleas Bar, and told a Serjeant who he had assigned for a Pauper, That if he would not come into that Court and plead for his Clyent, he would forejudge him; so that if he could be fetch'd out of the Common Pleas and carried to the Kings-Bench, he is not confined to that Court alone.

In the 5 H. 5. nu. 10. Complaint was made that the Subjects of the King were not well served in his Courts, the Parlia­ment thereupon Ordered, that one Martin and others should take upon them the Dignity of Serjeants at Law, so that it appears that their Business lies in other Courts as well as in that of the Common-Pleas.

2. As to the second Point: Here is a joynt Action, for any thing that appears to the contrary,2 Rol. Abr. 275. pl. 4. and the Plaintiff may pro­ceed against one in the Kings-Bench, and therefore the other shall be ousted of his Priviledge (if he have any) in the Common-Pleas, Moor 556. 20 H. 6. 32.

North Chief Iustice said, That he always took it to be an uncontroverted point, That a Serjeant at Law should be sued only in the Court of Common-Pleas by Bill; he is bound by Oath to be there, and when he brings a Writ of Privi­ledge 'tis always out of that Court, and no other: Curia ad­visare vult.

The Attorny General versus Sir John Read, In Scac­cario.

INformation. A special Verdict was found:Disability by a Statute ought to be removed by the Par­ty to enable himself to execute an Office. The Case was thus:

Viz. Sir John Read 1 Apr. 24 Car. 2. was by Sentence in the Spiritual Court divorced a Mensa & Thoro, and for Non payment of Alimony was excommunicated.

Afterwards it was Enacted by the Statute of 25 Car. 2. cap. 2. That all and every person or persons who shall have any Office, Civil or Military, shall take the Oaths of Supremacy and Alle­giance, and receive the Sacrament (within the time limited by the said Act) or otherwise shall be adjudged ipso facto, incapable and disabled by Law, or if he execute any Office after his neg­lect or refusal to qualifie himself within the time therein appoint­ed (viz. three Months,) then he shall be disabled to sue in any Court, and shall forfeit the Sum of 500 l.

Sir John Read was made High Sheriff of Hartfordshire, 12 No­vemb. 25 Car. 2. and being still under the Sentence of Excommu­nication, he took upon him the Office and executed it for 3 Months, viz. to the 12th day of February afterwards, and then refused to serve any longer; the Iudges came soon after to keep the Assises for that County, but there was no Sheriff there to attend them, and the reason was, because if he had executed the Office without taking the Oaths (the time being now ex­pired, wherein he ought to have taken the same,) then he had subjected himself to the forfeiture of 500 l. and he could not re­ceive the Sacrament because he was Excommunicated, and there­fore supposed that after the 3 Months he was ipso facto discharged by the aforesaid Statute; and whether upon all this matter the Defendant be guilty was the Question.

Ward and Sir William Jones the Attorny General argued that the Defendant was Guilty.

1. The Oath and Sacrament are necessary qualifications for all Sheriffs, because the Act appoints these things to be done, and the Penalty therein extends to those who execute any Of­fice after the three Months, without doing the same, but not to such who neglect to qualifie themselves.

And though it may be objected, that the Act gives no Penalty for not taking of the Oath, it only enjoyns it to be done, and sub­jects [Page 300] the person to the forfeiture of 500 l. for executing an Of­fice after three Months, that being not done; so that this is not to be punished by Information, it being no Offence at the Com­mon Law; yet if an Act appoints a thing to be done, the transgres­sing of the Law is an Offence at the Common Law, and ought thus to be punished, and so it was adjudged in Castle's Case, 2 Cro. 643.

1 Roll. Abr. [...]51, 455.Suppose the Defendant had given Bond to perform a thing, a discharge by the Act of God, or by the Obligee had been good, but the Obligor should never disable himself; and if it be so in private Contracts, much more in the Case of the King, because our Duty to him is of the highest nature.

2. Therefore the Excommunication can be no excuse to the Defendant, for though he might have been excused if he had been under a legal disability, which he could in no wise prevent; yet here he was able and had time enough, and it was in his power to have discharged himself from this Excommunication, and being bound by his Duty and Allegiance to the King to perform the Office, he ought to qualifie himself for the perform­ance, and either to remove the disability or shew he had not power to do it.

'Tis his obstinacy that disables him, and 'tis absurd to think that this Excommunication which was designed as a punishment should now be an ease to him to excuse him from executing this Office, Moor 121. Lacie's Case.

3. That the Defendant is punishable for this neglect, other­wise the King would lose the effect of his Subjects Service, if it should be in their power to discharge themselves at pleasure; an Act of Parliament cannot, and much less the Defendant him­self by his own act take away his Duty and Service which he oweth to the King: And therefore, though 'tis Enacted, That a Sheriff shall be only for one year, yet it has been adjudged that the King by a Non obstante may dispense with that Sta­tute,Antea. because otherwise he would be deprived of the Service of his Subjects.

If a Sheriff when he is first admitted into his Office refuses to take the Oath of his Office, he is finable, and so he ought here; if any alteration be made by the King of that Oath, his disobedience afterwards is punishable,Cro. Car. 26. though a form of the Oath is prescribed by the Act of Parliament, and there is no other way to punish the Defendant in this Case but by Information, for after the three Months (in case he execute the Office not being qualified) the Act gives the Penalty to the Informer; and if he should not execute it the inconvenience would be great, because 'tis and Office which concerneth the Administration of Iustice, [Page 301] and necessary for the management and collection of the Kings Re­venue.

The Statute extends to Offices of Trust as well as of Pro­fit, and enjoyns the thing to be done, the transgression where­of is an Offence, as well at the Common Law as against the Sta­tute, and so punishable by Information, and therefore they prayed Iudgment against the Defendant.

Sawyer and Levins contra. Viz. They agreed if the Subject be qualified he ought to accept the Office,Ex parte Def. but the Defendant was not so qualified, and therefore to be excused. But before they entred upon the debate whether this was an Offence or not, they took an Exception to the form of the Information.

Viz. That it was not good, because it did not conclude con­tra formam Statuti; for if the Offence be at the Common Law, and a new Penalty is given by the Statute, the Proceedings ought to be either at the Common Law by way of Fine, or upon the Sta­tute for the Penalty; but if the Offence be by the Statute, then it must be laid to be contra formam Statuti. Now if this was any Offence in the Defendant, it was because he did not receive the Sacrament and take the Oath, which is an Offence against the Statute, and therefore ought to conclude contra formam Sta­tuti, which is essential. Then as to the Substance;

1. The Information is insufficient, for there is no Offence at all of which the Common Law doth take notice; and though the Consequences of the thing done may be bad, yet no Man shall be punished for that, because those only aggravate the Of­fence, if any; neither is this Information true, for it saith he refused absque rationabili causa, but here was a reasonable cause: And though it may be objected, that it was only impotentia volun­tatis; and that every Subject being disabled, is to remove that disability to serve the King, this was denied; for a Man who is a Prisoner for Debt is not bound or compellable to be She­riff, neither is a Man bound to purchase Lands to qualifie him­self to be either a Coroner or Iustice of the Peace. By the Sta­tute of 3 Jac. every Recusant is disabled; he may conform, but he is not bound to it, for if he submits to the Pemalty, 'tis as much as is required by Law: 'Tis true, a Subject is bound to serve the King in such capacity as he is in at the time of the Service commanded, but he is not obliged to qualifie him­self to serve in every capacity: Neither doth it appear in this Case, that the Defendant was able to remove this Incapacity, and that should have been shewn on the other side, and all Iudges are to judge upon the Record.

The intent of the Statute is, That if persons will not qua­lifie themselves, they shall not execute any Office, and it was made to keep Roman Catholicks out of Places, but not to force them to accept of Offices of Trust in the Government; and it designs no punishment for quitting, but for executing of a place contrary to the Law; but if this be an Offence, this Informa­tion will not lie; and for that

2. It was argued, That if a thing be either commanded or forbidden by a Statute, the transgression in either Case is an Offence punishable by Information;25 H 6. pl. 9. b. 7 H. 4. 5. but when an Act doth not generally command a thing, but only sub modo, the party of­fending is punishable no otherwise than designed by that Law; as where the Statute of 18 H. 6. cap. 11. prohibits any Man from being a Iustice of the Peace, unless he have 40 l. ꝑ An̄. and the Statute of 5 & 6 E. 6. cap. 16. which makes such Bargains as are therein mentioned about buying of Offices void, if such Office be forfeitable, then an Information will lie; but when 'tis ipso facto void, as in both the former Cases, then 'tis other­wise, because the punishment is executed by the Statute it self; and therefore where the avoidance is made by the Act, there is no need of an Information.

And the Objection of impotentia voluntatis is not material to this purpose, because Symony, buying of Offices, not sub­scribing the 39 Articles, according to the Statute of the Queen; these are all voluntary Acts, yet no Information lies against such Offenders, because the Statutes execute the punishment.

The intent of the Parliament is here declared, the disability of the person makes the Office void; void to all intents, for the Right of Infants or Men in Prison is not saved; so that ad­mitting it to be an Offence, if the Duty be not performed; yet if such a qualification be requisit to make a Man to act in such an Office, or perform such a Duty, if that qualification be wanting, the Party is only punishable by the loss of the Office.

The Act doth not distinguish between Offices of Trust and Profit: And as to the other Objection, viz. That 'tis in the power of the Defendant to qualifie himself, the same might as well be objected against all the Popish Recusants, upon the Statute of 3 Jac. and if a Statute doth disable persons or abridge the King of their Services, there is no injury done, because the King him­self is party to the Act; but if mischiefs were never so great, since they are introduced by a Law, they cannot be avoided till that Law is changed.

3. But admitting the Information to be good, and that this is an Offence for which it will lie, yet the Excommunication is a [Page 303] sufficient excuse; it appears by the Verdict that the Defendant was absolutely disabled to be Sheriff, for if he is to take the Oath and receive the Sacrament in order to it, if he cannot be admitted to the Sacrament, as being under the Sentence of Ex­communication, that is an excuse.

The Defendant is only argued into a Guilt, for the Iury have not found any; they do not say, that it was in his power to yield Obedience, or that he might have enabled himself; they only find his incapacity, and though it was a voluntary Act, which was the cause of his disability, yet in such Cases the Law doth not look to Causes so remote. If a Man be in Prison for Debt it is his own Act for contracting it and not paying, but yet an Outlary a­gainst him whilst in Prison shall be reversed, because the imme­diate Cause, viz. the Imprisonment; and the Iudgment was in invitum, and the Law looks no farther; and so Iudgment was prayed for the Defendant.

But the Court were all of Opinion, that this Information would lye, and that the Defendant was punishable for not re­moving the disability, it being in his power to get himself ab­solved from the Excommunication: And so Iudgment was given against him, and a Writ of Error brought, &c.

Godfrey versus Godfrey. In Communi Banco. Intrat' Hill. ult. Rot. 321.

DEBT upon a Bond for performance of an Award,Award of a lesser Sum in satisfacti­on of a greater, and good. in which the Arbitrators had taken notice of 72 l. in controversie, and had awarded 50 l. in satisfaction: The Defendant pleads Nullum fece­runt Arbitrium; the Plaintiff replies an Award, and sets it forth and assigns a Breach, to which the Defendant demurred, because it appeared by the Award that 72 l. was in controversie for Rent due, and that 50 l. was awarded in full satisfaction of 72 l. and general Releases to be given; but it did not appear that any other Matter was in Controversie between the Parties though the Submission was general; and Arbitrators may reduce incertain things to a certainty, but they cannot make a Debt certain to be less, except there were other differences for which likewise this Release was to be given, 10 H. 7. 4.

But the whole Court were of Opinion that the Award was good,Curia. for that the Arbitrators might consider other Matters between the [Page 304] Parties; neither did it appear by the Award that the 72 l. was due, but in demand only; and 'tis unreasonable for him to find fault with his own case; for he alledges that he ought to pay 72 l. and complains, because the other Party is contented with 50 l. and demands no more. Iudgment for the Plaintiff.

Wright versus Bull.

Condition where 'tis disjunctive 'tis in the Election of the Party to have ei­ther.DEBT upon a Bond for payment of 40 l. The Condition whereof was, That if the Defendant should work out the said 40 l. at the usual Prices in packing, when the Plaintiff should have occasion for himself or his Friends to imploy him therein, or otherwise shall pay the 40 l. then the Bond to be void.

The Defendant pleads, that he was always ready to have wrought out the 40 l. but that the Plaintiff did never imploy him; and upon Demurrer the Plea was held ill, because the Defendant did not averr, that the Plaintiff had any occasion to make use of him; and for that it was at his Election either to have Work or Mony,Basket and Basket, Antea. and not having imployed him, but brought his Action, that is a request in Law; and so he hath determined his Election to have the Mony; and Iudgment was accordingly given for the Plaintiff.

Blackbourn versus Conset.

Place, where it shall be in­tended tho' not laid in the Plead­ing.IN Replevin, the Avowant pleads an Execution taken out, and that a Term for years was extended, and an Assign­ment thereof made by the Sheriff, but alledges no place where the Assignment was made: But upon Demurrer it was held good, for it shall be intended to be assigned where the Land doth lie.

Hall versus Carter.

Bond to render him­self a Priso­ner, good.IN an Action of Debt upon a Bond, the Defendant craves Oyer of the Condition, which was, That if another person (who was arrested at the Suit of the Plaintiff, (and for whom the Defendant was now bound) should give such Security as the Plaintiff should approve of for the payment of 90 l. to him,Sid. 132. pl. 4. or should render his Body to Prison at the return of the Writ, then the Obligation to be void.

The Defendant pleads the Statute of 23. H. 6. cap. 10. That this Bond was given pro easimento & favore; And this Case com­ing to be argued upon a Demurrer, the question was, whether such Bond be within the Statute or not: And the Court were of Opinion that it was not.

If the Sheriff takes Bond in another Man's name, to elude the Statute, such Bond is void; but the Plaintiff may give directions to the Officer to take such Bond as this to himself; 'tis only an expedient to prevent a new Arrest, and the Agreement of the Plaintiff makes it good.

If a Capias be taken out against the Defendant, and a third person gives the Plaintiff a Bond, that the Defendant shall pay the Mony, or render himself at the Return of the Writ; 'tis a good Bond, and not within the Statute, because 'tis not by the direction of the Officer, but by the agreement of the Plain­tiff; and there is no Law that makes the Agreement of the Par­ties void; and if the Bond was not taken by such Agreement, it might have been traversed.

But Iustice Atkyns doubted, because a Bond to render him­self a Prisoner is void, Bewfages's Case, 10 Co. But if it had been to pay the Mony, or appear at the Return of the Writ, it had been good: But notwithstanding Iudgment was given for the Plaintiff.

Shaxton versus Shaxton.

THE Condition of a Bond was,Non damni­ficatus not a good Plea, where the person and Lands are to be in­dempnifi­ed Antea. That the Defendant should save harmless Thomas Shaxton, and the Mortgaged Pre­misses, and should pay the Interest for the prinicipal Sum.

The Defendant pleads, that Thomas Shaxton non fuit damni­ficatus, for that the Defendant had paid the 120 l. principal mony, with all the arrears of Interest due at such a day: And upon a De­murrer this was held no good Plea; because the first matter non damnificatus goes to the Person and not to the Premisses: And so Iudgment was given for the Plaintiff.

Anonymus.

After ac­quittal for a Common Trespass, an Action on the Case will not lie. Sid. 465, 466. Antea.THE Defendant was Indicted for a Common Trespass, and Acquitted; and now was Plaintiff in an Action on the Case against the Prosecutor: And by the Opinion of the Chief Iustice the Action will lie for the Charges and Expences in de­fending the prosecution, which the acquittal proves to be false, and the Indicting him proves to be malicious; for if he had in­tended any thing for his own benefit or recompence, he might have brought a civil Action, and then if he had been found Not Guilty, he would have had his Costs allowed.

Though the prosecution be for a Trespass, for which there is a probable cause, yet after Acquittal it shall be accounted ma­licious; the Difference only is where the Indictment is for a Criminal matter, but where 'tis for such a thing for which a Civil Action will lie, the Party can have no reason to prosecute an Indictment, it is only to put the Defendant to charges, and make to him pay Fees to the Clerk of the Assises.

Penrice and Wynn's Case.

Habeas Cor­pus may be granted in Civil mat­ters.SErjeant Maynard moved for a Habeas Corpus for them, being committed to the Poultry Compter by the Commissioners of Bankrupts, for refusing to be examined and sworn touch­ing their Knowledge of the Bankrups Estate: The Process against them in this Court, was an Attachment of Priviledge, which was a Civil Plea, and of which the Court had Iurisdicti­on, and therefore the Habeas Corpus must be granted. And the Chief Iustice said, that it might be without motion, because all the Habeas Corpus's in that Court were ad faciendum & recipiend and they issue of course;Antea. but in the Kings-Bench they are ad subji­ciendum which are in Criminal Causes, and not to be granted without motion. Then the Serjeant moved that the Sheriff might Return his Writ, which was done, and being filed, he took Ex­ceptions to the Return, by which the ground of the Commitment appeared to be by virtue of a Warrant under the Hands and Seals of the Commissioners, &c. which he said was ill for want of an Averment of their refusal to come and be sworn; for it did not appear that they did refuse, and they ought not to be committed without refusing, so that should have been positively averred, viz. That they did refuse and still do; for if they are [Page 307] willing at any time, they ought to be discharged, and so they were, but were ordered to put in Bail upon the Attachment.

Abbot versus Rugeley.

THE Plaintiff declared in an Action of Assault and Batte­ry, to which the Defendant pleaded non cul, Plea puis darrein con­tinuance must be certified as part of the Record of Nisi prius. and at the Assises a Plea was put in puis darrein continuance, and a De­murrer thereunto. The Court were clear of Opinion, That if the Plea had been issuable, it could not have been then tried, neither could the Demurrer be there argued, but must be certi­fied up hither by the Iudge of Assise, as part of the Record of Nisi prius, Yelv. 180. Hawkins versus Moor.

Ballard versus Oddey.

It was ruled in this Case,The Con­tract it self must be U­surious to make it void. 1 Sand. 295. Mod. Rep. 69. That to avoid a Security by reason of Vsury, the Contract it self must be usurious, for if the Party takes afterwards more than is allowed, that will not make it so; so that if the Agreement of the Parties be honest, but made otherwise by the mistake of a Scrivener; yet 'tis not Vsury: As if a Mortgage be for 100 l. with a Proviso to be void on payment of 106 l. at the end of one year, and no Cove­nant for the Mortgagor to take the Profits till default be made in paiment; so that in strictness the Mortgagee is intituled both to the Interest and the Profits, yet if this was not express'd, the Agreement is not Vsury.

DE Term. Sanctae Trin. Anno 30 Car. II. in Communi Banco.

The Case of one Randal and his Wife, an Admi­nistrator, &c.

Judgment may be a­voided without a Writ of Error by a Plea, where the Party is a Stranger to it.DEBT upon a Bond against the Defendant as Admi­nistrator: They plead a Iudgment recovered against the Intestate in Hillary Term 26 & 27 Car. 2. and that they had not Assets ultra. The Plaintiff replies that there was an Action against the Intestate, but that he dyed before Iudgment, and that after his death Iudgment was obtained, and kept on foot per fraudem.

The Defendant traversed the Fraud, but did not answer the death of the Intestate; and upon a Demurrer it was said for the Plaintiff, that the Iudgment was ill, and that he being a Stran­ger to it could neither bring a Writ of Error or Deceit, and had no other way to avoid it, but by Plea; and that 'tis put as a Rule, That where Iudgment may be reversed by a Writ of Error, the Party shall not be admitted to do it by Plea; but a Stranger to it must avoid it by Plea, because he is no Party to the Iudgment; as if a Scire Facias be brought against the Bail 'tis a good Plea for them to say, that the Principal was dead before Iudgment given by way of excusing themselves to bring in the Body; but 'tis not good to avoid the Iudgment, because 'tis against the Record,Cro. Eliz. 199. which must be avoided by Writ of Error, 1 Roll. Abr. 449, 742.

The Court were of Opinion, that the Plaintiff might avoid the Iudgment without a Writ of Error, especially in this Case, where 'tis not only erroneous, but void.

Hill versus Thorn.

IN an Arbitrament it was held by the Court,Rules in an Award. that if two things be awarded, the one within, and the other not within the Sub­mission; the later is void, and the breach must be assigned only upon the first.

2. If there be a Submission of a particular difference, and there are other things in Controversie, if in such Case a ge­neral Release is awarded 'tis ill, and it must be shewed on the other side to avoid the Award for that cause.

3. If the Submission be of all differences till the 10th day of May, 1 Sand. 33. and a Release awarded to be given of all differences till the 20th day of May, if there be no differences between those two days the Award is good; if any, it must be shewed in Pleading,1 Roll. Abr. 257. other­wise the Court will never intend it.

4.Smith and Shelbury, An­tea. That reciprocal Covenants cannot be pleaded in barr of another, and that in the assigning of a Breach of Covenant 'tis not necessary to averr performance on the Plaintiffs side.

Staples versus Alden.

DEBT upon a Bond conditioned to deliver forty pair of Shooes within a Month at Holborn-Bridge to Henry Knight a Common Carrier to G. for the use of the Obligee.Tender of Goods to the Man shall be a Tender to the Master.

The Defendant pleaded, that in all that space of a Month Henry Knight did not come to London, but that such a day at Holborn-Bridge he delivered forty pair of Shooes to A. G. the Carriers Porter: To this Plea the Plaintiff demurred; for that the Condition being to do something to a Stranger, the Defendant at his peril ought to perform it;33 H. 6. 13. 4 H. 7. 4. like the Case where the Action of Debt was brought upon a Bond conditioned, that the Defendant should give such a Release as the Iudge of the Pre­rogative Court should think fit; the Defendant pleaded that the Iudge did not appoint any Release, and it was adjudged no good Plea, because the Obligation is on his part, and he ought to tender a Release to the Iudge, Cro. Eliz. 716.

But on the other side it was said, that a delivery to the Ser­vant is a delivery to the Master himself; and if parcels of Goods are delivered to the Porter and lost, an Action lies against the Master.

Curia.The Court (absente North Chief Iustice) held the Plea to be good, and that such a Construction was to be made as was ac­cording to the intent of the Parties, and that a delivery to the Man was a delivery to the Master; whereupon Iudgment was given for the Defendant.

Gillmore versus Executor of Shooter. In Banco Regis.

A new Act shall not take away an Action to which the Plain­tiff was en­tituled at the Com­mencement of the Act. INdebitatus Assumpsit. There was a Treaty of Marriage between the Plaintiff, who was of kin to the Testator, and the Daughter of one Harris, with whom he afterwards had 2000 l. as the Marriage Portion; and Mr. Shooter in his Life time promised to give the Plaintiff as much, or to leave him worth so much by his Will.

This Promise was made before the 24th day of June, be­fore this Action brought; the Marriage took effect, Harris paid the 2000 l. and Shooter dyed in September following, having made no payment of the Mony, or any Provision for the Plaintiff by his Will.

This Action was commenced after Shooter's death, and upon the Tryal a Special Verdict was found upon the Act of Frauds and Perjuries, 29 Car. 2. c. 29 Car. 2. which Enacts, That from and after the 24th day of June in the year 1677. no Action shall be brought to charge any person upon any Agreement made in consideration of Marriage, &c. unless such Agreement be in Writing, &c. And that this was a bare Promise without Writing.

And by Wyld and Jones (absente Twisden) Iudgment was given for the Plaintiff; for it could not be presumed that the Act had a retrospect to take away an Action to which the Plain­tiff was then intituled: For if a Will had been made before the 24th day of June, and the Testator had dyed afterwards, yet the Will had been good though it had not been in pursuance of the Statute.

Aster versus Mazeen. In C. B.

IN Covenant,Breach as­signed did relate to three Co­venants, the Declarati­on con­cludes & sic fregit Conventio­nem, and good. the Plaintiff declared upon an Indenture in which the Defendant had covenanted that he was seised in Fee, &c. and would free the Premisses from all Incumbrances, in which there was also another Covenant for quiet Enjoyment; and the Breach assigned was upon an Entry, and Eviction by ano­ther, and concludes & sic Coventionem suam praedictam fregit, in the singular Number.

And upon a Demurrer to the Declaration Maynard Serjeant said, That the Breach did relate to all the three Covenants, and therefore the Conclusion was ill, because he did not shew what Covenant in particular, and if he should obtain a Iudgment upon such a Declaration, the Recovery could not be pleaed in Barr to another Action brought upon one of the other Covenants.

But Conyers for the Plaintiff said, that Conventio is Nomen collectivum, and if twenty Breaches had been assigned he still counts de placito quod teneat ei Conventionem inter eos fact': And of that Opinion was the Court; and that the Breach being of all three Covenants, the Recovery in one would be a good Barr in any Action afterwards to be brought upon either of those Covenants.

Parrington versus Lee.

INdebitatus Assumpsit, Limitation of perso­nal Actions only ex­tends to ac­compt be­tween Mer­chants. Mod. Rep. 268. 2 Sand. 125, 127. Pl. Com. 54. for Mony had and received to the use of the Plaintiff, a quantum meruit for Wares sold, and an Insimul computasset, &c.

The Defendant pleads the Statute of Limitations (viz.) non as­sumpsit infra sex annos: The Plaintiff replyed, that this Action was grounded on the Trade of Merchants, and brought against the Defendant as his Factor, &c. The Defendant rejoyns that this was not an Action of Accompt; and the Plaintiff demurred, for that this Statute was made in restraint of the Common Law, and therefore is not to be favoured or extended by Equity, but to be taken strictly; and that if a Man hath a double re­medy he may take which he pleaseth; and here the Plaintiff might have brought an Action of Accompt, or an Action on the Case grounded on an Accompt.

But Baldwyn Serjeant insisted that the Declaration was not full enough, for the Plaintiff ought to set forth, that the Action did concern Merchants Accompts, and that the Replication did not help it.

The Court were of another Opinion; for that it need not be so set forth in the Declaration, because he could not tell what the Defendant would plead, so that supposing him to be within the Saving of the Act his Replication is good; and 'tis the usual way of Pleading, and no departure, because the Plea of the Defendant gives him occasion thus to reply. But the Saving extends only to Accompts between Merchants their Factors and Servants; and an Action on the Case will not lie against a Bay­liff or Factor where Allowances and Deductions are to be made, unless the Accompt be adjusted and stated, as it was resolved in Sir Paul Neals Case against his Bayliff.

Where the Accompt is once stated, as it was here, the Plain­tiff must bring his Action within six years; but if it be adjusted and a following Accompt is added, in such case the Plaintiff shall not be barred by the Statute,Mod. Rep. 71. because 'tis a running Accompt; but if he should not be barred here, then the Exception would ex­tend to all Actions between Merchants and their Factors, as well as to Actions of Accompt which was never intended, and there­fore this Plea is good, and the Saving extends only to Actions of Accompt; whereupon Iudgment was given for the Defen­dant.

Astry versus Ballard. In Banco Regis.

Principals in Executi­on the Bail are lyable. 1 Ventris 315THE Defendant became Bail for six persons, against whom the Plaintiff got a Iudgment, and two were put in Execu­tion; the Plaintiff afterwards brought a Scire Facias against the Bail, who pleaded that two of the Principals were taken in Exe­cution before the Scire Facias brought, and whether the Bail was not discharged thereby was now the Question?

It was agreed, that if five had surrendred themselves after Iudgment,2 Cro. 320. 1 Roll. 897. yet the Bail had been lyable; but are not so if the Plaintiff (as in this Case) hath once made his Election by suing out Execution against the Principals, and thereupon two are taken and in Custody. Before the Return of the second Scire Facias they have Liberty by the Law to bring in the Principals; but the Plaintiff having taken out Execution he hath made it [Page 313] now impossible for the Bail to bring them in to render them­selves.

But Sypmson argued that the Bail was not discharged; for he ought to bring in the other four or else he hath not performed his Recognizance; and so it was adjudged by the Court,Sid. 107. for the Law expects a compleat satisfaction: The like Resolution was in this Court between Orlibear and Norris.

Steed versus Perryer.

IN a Special Verdict in Ejectment the Case was this,Republica­tion makes it a new Will. viz. Robert Perryer being seised in Fee of the Lands in question, had Issue two Sons, William his eldest, and Robert his youngest Son, and being so seised he devises these Lands to his youngest Son Robert and his Heirs.

Robert the Devisee dies in the Life time of his Father,Jones 135. 1 Ventris 341 Mod. Rep. 267. and leaves Issue a Son named Robert, who had a Legacy devised to him by the same Will.

The Grandfather afterwards annexed a Codicil to his Will, (which was agreed to be a Republication) and then he expresly publishes the Will de novo, and declared that his Grandson Robert should have the Land as his Son Robert should have enjoyed it had he lived.

And whether the Grandson, or the Heir at Law, had the better Title was the Question?

Pemberton and Maynard Serjeants argued for the Title of the Plaintiff (who was Heir at Law) That if a Devise be to S. and his Heirs, if S. dye living the Devisor, the Heir shall take nothing, because no Estate vested in his Ancestor; so if a De­vise be to the Heirs of S. after his decease, the Heir shall take by Purchase, for he cannot take as Heir for the Reason afore­said.

By the death of Robert the Son, the Devise to him and his Heirs was void, and the annexing a Codicile and Republication of the Will cannot make that good which was void before; if it cannot make it good, then the Heir cannot take by Purchase, and by descent he cannot take, for his Ancestor had no Estate, and therefore he shall have none.

Besides, this is not a good Will within the Statute, which requires it to be in Writing: Now the Devise by the written [Page 314] Will was to the Son, and the Republication to the Grandson was by Words and not in Writing; so that if he cannot take by the Words of the Will he is remediless, and that he cannot take as Heir, because his Ancestor dyed in the Life time of the Testator, Moor 353. Cro. Eliz. 243.

Cro. Eliz. 422. Moor 353, 404. Skipwith and Barrel on the other side, That the new Publi­cation makes it good, for it makes a new Will in Writing, and it shall take according to the Publication which makes it have the effect of a new Will. 'Tis true, Deeds shall not be extended father than the intent and meaning of the Parties at the time of the Delivery, but Wills are to be expounded by ano­ther Rule; therefore though by the death of the Son the Will was void, yet by the Republication it hath a new Life, 1 Roll. Abr. 618. 5 Co. 68. 8 Co. 125.

The Chief Justice, Wyndham and Atkins Iustices were of Opi­nion for the Grandson against the Heir at Law, viz. That the Republication made it a new Will, and the Grandson should take by the Name of Son: And Iustice Atkins relied on the Case of Brett and Rigden in the Commentaries, where new purchased Lands passed by a Republication; but a Writ of Error being brought upon this Iudgment in the Kings Bench, it was reversed.

Anonymus. In Banco Regis.

MR. Sanders moved for a Prohibition to the Spiritual Court in the Case of the Children of one Collet and Mary his Wife, to stay Proceedings there upon a Libel against them; that the said Collet had married Anne, the Sister of the said Mary. They both appear and confess the Matter, upon which a Sentence of Divorce was to pass, whereas in truth Collet was never married to Ann, but it was a contrivance between him and his Wife to get themselves divorced, and the Marriage decla­red void ab initio to defeat their Children of an Estate settled up­on them in Marriage with Remainders over, by bastardizing them after they had been married and lived together 16 years. The Reason why a Prohibition was prayed was, because Mar­riage or no Marriage was to be tried in pais, for that the Inheritance and Freehold of Land were concerned in this Case.

The Court directed that they should suggest this Matter,Curia. and that it was a Contrivance to obtain a Sentence of Divorce to defeat them of their Estate entailed on them, and then to move for a Prohibition.

Smallwood versus Brickhouse.

THE Suggestion was,Spiritual Courts are proper to determine where a person is capable of making a Will. Godolph. 276. that B. being under the Age of sixteen years had made a Will, and that the Prerogative Court proceeded to the proof of it; whereas by the Common Law a person is not capable till 17 years; and therefore a Prohibition was prayed.

And that the Common Law hath determined the time my Lord Coke's Comment upon Littleton was cited, 1 Inst. 89. b. where 'tis said, That at 18 years of Age he may make his Testament and constitute Executors; and the Age of a person is triable also in pais.

But the Court said,Curia. that the Proof of Wills and the Validity of them doth belong to the Ecclesiastical Court; and if they ad­judge a person capable, the Court will not intermeddle, for 'tis within their Iurisdiction to adjudge when a person is of Age to make a Will; and sometimes they allow Wills made by persons of 14 years of Age, and the Common Law hath appointed no time, it depends wholly on the Spiritual Law; and therefore a Prohibition was denied

Joan Bailies Case.

NOTA. One Joan Bayly being in Execution,Admini­stration was com­mitted to the Debtor in Execu­tion. the Plaintiff dyed intestate, and the Right of Administration came to her, and a Motion was made for a Habeas Corpus to bring her from the Compter into this Court; for that having administred to her Creditor she might be discharged; but it was denyed, for she could not be thus discharged, because non constat de persona; neither can she give a Warrant of Attorny to acknowledge satis­faction, therefore let her renounce the Administration and get it granted to another, and then she may be discharged by a Letter of Attorny from such Administrator.

Anonymus.

Mandamus. MAndamus to swear one who was elected to be one of the Eight Men of Ashburn Court; it was denyed, because it is incertain; for it ought specially to be inserted what the Office is, and what is the place of one of the Eight Men of Ashburn Court, that it may appear to the Court to be such a place for which a Man­damus doth lye; and though such a Writ hath been granted for one of the approved Men of Guilford, yet it was specially set forth what his Office was.

Birch versus Lingen. Trin. 34 Car. 2. in B. R.

Disconti­nuance where a­mendable.JVdgment was obtained upon a Bond 25 years since, and in one of the Continuances from one Term to another there was a blank. The Executors of the Defendant now brought a Writ of Error; and the Plaintiff in the Action got a Rule to amend and insert the Continuance, suggesting to the Court, that it was a Iudgment of a few Terms, and so aided by the Statute of 16 & 17 Car. 2. cap. 8.

Hughes Abr. tit. Costs 480. 2 Sand. 289. Moor 710. Cro. Eliz. 320, 489, 553, 619. Cro. Jac. 211, 353, 528.Vpon this Rule the Plaintiff fills up the Blank, and the Re­cord was certified so filled up into the Exchequer-Chamber.

And Mr. Pollexfen moved for the Defendant, that the Record might stand as it did at first, and that the Rule was got by a trick and on a false Suggestion, it being a Iudgment before the Restoration of this King, and a Discontinuance not amendable, for 'tis the Act of the Court; and for an Authority in the Point the Case of Friend and Baker was cited, where after a Record certified,Stiles 339. a Motion was made to amend it, because day was given over to the Parties from Easter to Michaelmas-Term, and so Trinity-Term left out, where by the Opinion of Roll Chief Iustice, that the giving of a day more than is necessary is no Dis­continuance; but where a day is wanting, 'tis otherwise.

But Sanders for the Plaintiff said, that this was only a Mispri­sion of the Clerk and no Discontinuance, but amendable: The Clerks commonly leave Blanks in the Venires, and if they neg­lect to fill them up 'tis only a Misprision and amendable by the Court; and the Record being now filled up by the Rule of the Court, ought not to be razed to make an Error.

The Chief Iustice was of Opinion, That this was not a discontinuance, but an insufficient continuance, and an omission of the Clerk only, who if he had filled up this Blank himself without Rule, it could not afterwards be set aside.

But Iustice Jones was of another Opinion, That it was such a misprision of the Clerk, as was not amendable by the Statute of H. 6. since it was not the same Term, and all the Proceedings being in the Breast of the Court only during the Term, it ought not to be altered, but left in Blank as it was; for where Iudgment is entred for the Plaintiff, the Court may upon just cause alter it the same Term for the Defendant, but not of another Term, the whole Term being but one day in Law: And though the Writ of Error be re­turned into the Exchequer, that will make no alteration, for the Record it self remains still here, and 'tis only a Transcript that is removed thither. Sed Adjornatur.

Anonymus.

TRespass for breaking of his Close. The Defendants plead,Power where 'tis coupled with an In­terest is as­signable. That the place where were, &c. the Lands of one Martin, who made a Lease thereof to the Plaintiff, and did thereby except the Trees growing on the same: In which Lease the Plaintiff did Covenant with the said Martin, his Heirs and As­signs, that he and they from time to time, during the said Lease, should have liberty and full power to Fell the said Trees, and root them up, repairing the Hedges where they did grow. That the said Martin granted some of the Trees to the Defendant, by virtue whereof he and the rest of his Servants did cut them down, which is the same breaking of the Close of which the Plaintiff complains: To which Plea Mr. Pollexfen did demurr for the Insufficiency, because the Defendant did not shew, that upon cutting down the Trees he did repair the Hedges, as by the Agreement ought to have been done; for this being a limited and qualified power ought to be set forth at large; and that it was a power only annexed to the Reversion and not assignable to any one else, and so the Defendant hath wholly failed in his Plea; he might have justified under Martin, but not in any of their own Rights.

But the Court were of Opinion, That an Action doth lie in this Case, both against the Lessor and his Assignee, acting under his Power; and they agreed that a bare power was not as­signable; but where 'tis coupled with an Interest, it may be as­signed, and here was an Interest annexed to the power; for the Lessor might sever the Trees from the Reversion. Whereup­on Iudgment was given for the Defendant.

Scoble versus Skelton.

Presciption must be al­ledged with a Seisin in Fee.THE Plaintiff declared, That he was seised of a Tenement called East, and the Defendant of another Tenement called West Travallock; and that he and all those whose Estate he had, did use to fetch Pot Water from the Defendants Close, &c. Issue was taken upon this Prescription, and a Verdict for the Plaintiff; and Mr. Pollexfen moved in Arrest of Iudgment, That the Declaration did set forth generally that he was sei­sed, and it did not appear it was in Fee; for if it be for Life only, then the Action doth not lie, because a Prescription can­not be annexed to an Estate for Life.

Tremain insisted, that the Declaration was sufficient, and cer­tain enough, for when the Plaintiff doth alledge that he was seised generally, it shall be intended a seisin in Fee; especially after Verdict.

But the Court held the Declaration to be defective in Sub­stance, because a Prescription cannot be annexed to any thing but an Estate in Fee, and therefore 'tis not helped after Ver­dict. The Iudgment was reversed.

Putt versus Roster.

A Recove­ry in Tres­pass, good Plea in bar to an Action of Trover.TRespass for taking of his Cattle: The Defendant justifies for a Herriot, and upon a Demurrer had Iudgment.

The Plaintiff did afterwards bring an Action of Trover and Conversion for the same Cattle, and the Defendant pleaded the former Iudgment in Trespass, in barr to this Action of Trover, and the Plaintiff demurred.

Serjeant Maynard argued, That the Plea was not good, be­cause Trespass and Trover are distinct Actions, and one may be where the other is not; as, if an Infant give Goods to one, an Action of Trover doth lie to recover them, but Trespass will not: So if Goods be delivered to another, and he refuse to de­liver them upon demand, Trover, but not Trespass will lie; and therefore these being different Actions, a Recovery in one shall be no barr to the other.

A Formedon brought in the Descender, and Iudgment thereon, is not pleadable in barr to a Formedon in Remainder.

There is a great difference between a barr to the Action,5 Co. 33.6 Co. 37. a. Cro. El. 667. Eo. Entr. 38. b. 2 Cro. 15. pl. 20. Antea. and to the Right; as where an Administrator sues, not knowing that he was made Executor, and Iudgment against him; and he afterwards proved the Will, and brought an Action as Executor; the former Iudgment had against him as Administrator shall not be a barr to this new Action, because 'tis not a barr to the Right, for by misconceiving his Action the former abated.

But Mr. Holt argued, That these were Actions of the same nature, and therfore a Iudgment in one was a good Plea in barr to the other; Trespass or Trover lies for taking or carry­ing away the Goods of another, and when he hath made his Election which to bring, a Recovery there shall be a perpetual barr to the other.

In an Appeal of Mayhem, 4 Co. 39. the Defendant pleaded a former Recovery in an Action of Assault and Battery, and held good; though one is of a higher nature than the other.

But the Court were of Opinion,Curia. Rose and Stan­den, Antea. That an Action of Trover doth lie where a Trespass doth not, and if the Plaintiff hath mistaken his Action, that shall be no barr to him.

As to the Case put of the Mayhem, Rozal and Lampen, An­tea. that doth not agree with this, because there can be no Mayhem without an Assault, but there may by a Trover without a Trespass; and though the Ap­peal of Mayhem be of a higher nature than the Assault, because it doth suppose quod felonice Mayhemiavit, yet the Plaintiff can only recover damages in both.

If a Man bring Trespass for the taking of a Horse, and is barred in that Action, yet if he can get the Horse in his possession, the Defendant in the Trespass can have no Remedy, because notwith­standing such Recovery the Property is still in the Plaintiff.

The Defendant in this Case hath justified the taking of the Cattle for a Herriot, and by the Demurrer the justification is [Page 320] confessed to be true in fact; now by the taking for a Herriot, the property of the Goods was altered; and wherever the Proper­ty is determined in Trespass, an Action of Trover will never lie for the same, but 'tis a good Plea in barr; and so it was adjudged here.

James versus Trollop.

Prescripti­on for a Mo­dus good.ERror of a Iudgment in the Common-Pleas on an Action upon a Prohibition, where the Plaintiff did suggest, That William late Prior of Norbury in Staffordshire, was seised of the said Mannor and of the Tythes thereof simul & semel, as of a portion of Tythes, &c.

That the said Prior 25 H. 1. granted the said Mannor and Tythes to William Fitzherbert and his Heirs, rendring Rent: That the said Fitzherbert did Enter and was seised, and held it discharged of Tythes; that his Heirs afterwards granted two Hides of Land, part of the said Mannor, to S. with the Tythes, at 5 s. Rent; and so draws down a Title by Descent for 300 years to F. who being seised devised the same to Dorothy James, (under whom the Plaintiff in the Prohibition claimed) and then concludes, That Fitzherbert and all those whose Estate, &c. did pay the said Rent to the said Prior, which since the Dissoluti­on was paid to the King and his Assigns, in discharge of all Tythes, &c.

The Defendant having craved Oyer of the Deed demurred to the Suggestion; and Iudgment was given for the Plaintiff in the Common-Pleas.

And it was now said for the Plaintiff in the Errors, That it doth not appear by the Pleadings whether the Plaintiff in the Prohibition would discharge himself by a Praescription in non decimando, or in modo decimandi; for the Grant from the Pri­or being the foundation of his Title, he could not thereby be discharged, because a Deed before Memory cannot be pleaded, unless it hath been allowed in a Court of Eyre, or some Court of Record since Memory; and this Deed being dated in the Reign of King Henry the I. which was 65 years before the time of Memory by the Common Law, that beginning in the Reign of Richard the I. whatever is before that time cannot be tried by Law; if it had been allowed in Eyre, or in some of the Courts of Record, it may be pleaded, but no usage in pais can confirm it.

But supposing the Deed to be good, the Plaintiff hath alledged a Grant of a portion of Tythes which he cannot have; for at the Common Law a Lay-man was not capable of Tythes in prender, for no one had capacity to take or receive them,Jones 369. 2 Co. 49. save only spiritual persons, for which Reasons a Lay-man could not prescribe in non decimando, but in modo decimandi he might, because there is still an annual recompence in satisfaction thereof.

2. 'Tis not alledged, that the place where, &c. was parcel of the Demesus of the Mannor, therefore for what appears it might have been always in Tenancy; and though a Prescription to a modus by the Lord, for himself and all his Tenants is good,Cro. Eliz. 599. because it might have a lawful beginning, for the Lands at first might be all in his Hands before it was a Mannor, and so much paid for the Tythes thereof, yet such a Prescription by a Tenant is not good.

3. He hath alledged payment to the Prior, and afterwards to the King, and so would infer a Modus, to which he hath not po­sitively prescribed, but by an old Deed upon payment of 5 s. to all those whose Estates, &c. And this will not do, for unless the Modus doth go to the person who by Law ought to have Tythes, or unless it be for his benefit, 'tis not good; as where it was alledged that he ought to be discharged, because time out of memory he employed all the profits of the Land for the Re­pairs of the Body of the Church, and to find necessaries, &c. this was not a good Modus, 1 Roll. Abr. 649 placito 8. because 'tis no recompence for the Parson.

But it was said by Saunders for the Plaintiff in the Prohi­bition, That by the Suggestion there was a good Title alledg­ed to be discharged of Tythes; for 'tis set forth that the Prior had a portion of Tythes, and the Lands simul & semel, and be­ing a Corporation they might prescribe for Tythes in prender, and the Tythes being well in them, they may well grant it to Fitz­herbert paying 5 s. and constant payment being alledged ever since, 'tis a good Title.

As to the Deed, tis true, 'tis dated before the time of Me­mory; but yet 'tis pleadable because 'tis a private Deed, and so need not be allowed in Eyre or in Courts of Record; for such as are not to be pleaded unless allowed there, are only Grants of Franchises and Liberties from the King, but the con­fession of the Deed to be beyond Memory, and the constant pay­ment of 5 s. is a sufficient title to the Plaintiff if the Deed is not pleadable, and if it is, then 'tis a good discharge that way.

And as to the Objection, that the Modus is payable to a wrong person; there are many such which are not paid to the Parson of the Parish, but to Lay-men: But in this Case it doth appear that there was a Modus in the Prior, which being received till it came to the Crown, 'tis good although now paid to others; so that for that reason the Spiritual Court ought to be prohibited, and of that Opinion was all the Court; for if a Modus be paya­ble to him, who hath the Right of the Tythes, though it be not to the Parson of the Parish, 'tis well enough, especially where the Plaintiff (as here) alledgeth it to be Portio Decimarum belong­ing to the Prior, so that it cannot be said that the Parson hath not quid pro quo; for he had nothing at first.

This Composition was made with the Prior, and the Plain­tiff is only to shew payment to him, and to those who have his Right.

And as to the date of the Deed, 'tis pleadable though time out of memory, because 'tis a private Deed; but Grants of Fran­chises and Liberties must be allowed in Eyre; and so is my Lord Rolls to be understood in his Abridgment; Whereupon Iudg­ment was affirmed.

FINIS.

A TABLE of the Principal Matters contained in these REPORTS.

A.
  • Abatement.
    • WHERE it shall be taken in Barr, 64, 65
  • Action on the Case.
    • Where two matters are laid in two Counties, the Action may be brought in either by Pleading, 23
    • Process is directed to six Coroners, one of them commits a Tort, the Action lies against all of them, 23, 24
    • It lies for an Acquittal upon an In­dictment for a Trespass, 52, 306
    • It lies for these Words, viz. I dealt not so unkindly with you, when you stole my Corn, 58
    • <