The Third PART OF Modern Reports, BEING A COLLECTION Of Several SPECIAL CASES IN THE COURT OF King's-Bench: In the last Years of the Reign of King Charles II. In the Reign of King James II. And in the two first Years of his present MAJESTY.  
TOGETHER WITH The Resolutions and Judgements thereupon.  
None of these Cases ever Printed before.  
Indignor quicquam reprehendi, non quia crassè  
Compositum, illepidéve putetur, sed quia nuper.  Hor. Epist. 2.1. 
Carefully Collected by a Learned Hand.  
LONDON, Printed by the Assigns of Rich. and Edw. Atkins Esqrs; for Charles Harper at the Flower de Luce over-against St. Dunstan's Church in Fleetstreet, 1700.   

 helmet over coat of arms with shells 
Mr: Ambrose Holbech of Mollington. in the County of Warwick, 1702    

TO THE PROFESSORS OF THE Common Law OF ENGLAND.  
Gentlemen,  
ALL Human Laws are either Natural or Civil.  
The Law of Nature, which is also the Moral Law, is at all times and in all places the same, and so will always continue.  
By Civil Laws, I mean, such as are established by Human Policy, which with us are either Customs or Statutes; and these have also some resemblance to Natural Laws, because they are for the most part introduced by the concurrent Reason of Men; and Reason is the Law of Nature.  
Customs are made by Time and Usage, and do thereby obtain the force of Laws in particular places and Nations; but no otherwise than upon supposition that they were reasonable at the beginning. To these may be added such Laws which are usually called Responsa Prudentum, which, together with Customs, make a great part of our Municipal Laws.  
And because 'tis impossible that future Evils should be foreseen by the Wisdom of Mankind so as to prevent them; therefore 'tis very reasonable that positive Laws should be instituted by the Legislative Power, which we call Statutes; and those are either Commands or Prohibitions, always enacted upon some present Emergencies, and may be altered or repealed according as the Manners of Men change, or as the Conjuncture of Affairs require for the public Good.  
I do not find this Nation was governed by any settled Laws from the time of William called the Conqueror, till 9 H. 3. but by the irregular Power of the Norman King, and of those who immediately succeeded him.  
'Tis true, he swore to preserve approbatas & antiquas Leges Angliae; but 'tis as true, that the same Force, which compelled our Forefathers to submit, did likewise exact their Obedience to the Customs of Normandy, some of which we retain to this very day.  
It was then a term of Reproach to be called an Englishman, as if that denomination imported to be a Slave. This made the lesser Barons (that is, the Freeholders, or those which had such Lordships which are now called Court-Barons) take up Arms to regain their ancient Rights, and by that means they obtained a Grant of their old Laws from some of those Kings, which was called Magna Charta Libertatum; but living in a tumultuous Age they did never quietly enjoy those Liberties; for notwithstanding that Charter, many Infringements were made upon them, which they continued in Arms to defend, insomuch that in the Seventeenth Year of King John they delivered to that King a Schedule of their ancient Customs in Writing, desiring that he would establish them by another Grant, which was done accordingly.  
But this Charter was as little observed as the former; for the Norman Customs did still interfere with St. Edward's Laws, and the People were miserably divided by those Innovations till Anno 9 H. 3. the Great Charter was established by Authority of Parliament.  
From that time those ancient Laws and Customs were had again in repute, they were revived by that Grant, which was only declaratory of them; and because a more exact Obedience and Conformity might be given to them for the future, therefore did his Successor, the good King Edward I. encourage the Lawyers in his time to reduce them into Order and Writing, which was done accordingly about the middle of his Reign by John Breton, not the Bishop of Hereford, but a Judge of the King's Bench; for, as Mr. Selden has observed, the Bishop of that Name died Anno 3 E. 1. And in that Book which is now called Breton, the Statute of W. 2. is cited, which was made 13 E. 1. and therefore it could not be penned by the Bishop, unless he could quote a Statute which was not made till above ten years after his Death.  
This is one of the first Systems extant of our Laws. 'Tis true, the Book called The Mirror of Justice was written before, but many Additions were made to it in this King's Reign by Andrew Horn, a learned Man in that Age.  
There was likewise a small Tract then written by Sir Ralph Hengham, Lord Chief Justice of the Common Pleas, which only treats of Essoins and Defaults in Writs of Right, Writs of Assize and Dower, and therefore cannot be called a Body of our Laws.  
I must admit that two such Books were written by the Lord Chief Justice Glanvil and Justice Bracton, the one in the Reign of Henry the Second, and the other in the time of Henry the Third, but not one more of that Nature almost in the space of two hundred Years; for I do not think the Book which the Lord Chancellor Fortescue wrote in the Reign of King Henry the Sixth, can be properly called a System of Law: It was published by him for these purposes, first, to obviate the design of two great Favourites, the Dukes of Exeter and Suffolk, who had used some endeavours to introduce the Imperial Law, and therefore he shown the Excellency of the Common Law above that; and in the next place, it was intended to soften the warlike Temper of the young Prince Edward, by inclining him to the Study of those Laws by which he was to govern his People, and to instruct him in some Occurrences therein.  
The Abridgement by Baron Statham and the Year-Books are for the most part made up with Cases then depending in the several Courts at Westminster, and with the Opinions and Resolutions of Judges, which I rather call Responsa Prudentum than Systems of Law.  
The next Attempt in that kind was made by Justice Littleton in the Seventh Year of Edward the Fourth, who hath taught succeeding Ages with great Judgement and Learning in his Profession; but 'tis now two hundred and thirty Years since he wrote, and many alterations have been made in the Law since his time.  
I only mention these things to show the necessity of new Books, and that the old Volumes are not so useful now as formerly, because many of the great Titles, of which they were composed, are now quite disused; they are mentioned by my Lord Hales in his Preface to the Lord Chief Justice rolls Abridgement, which I shall not repeat, and those very Titles make the greatest part of Justice Littleton's Tenors.  
But amongst all the Old Tenors and Customs I admire that of Burrough English should still remain amongst us; 'tis a Custom contrary to the positive Laws of God, and which inverts the very order of Nature; it was introduced amongst us in a barbarous Age, and by a very wicked and adulterous practice after this manner, viz.  
The Lords of certain Lands which were held of them in Villeinage did usually lie with their Tenants Wives the first Night after Marriage; this Usage was continued after those very Lands were purchased by Freemen, who in time obtained this Custom on purpose that their eldest Sons (who might be their Lord's Bastards) should be incapable to inherit their Estates.  
I could never yet find any tolerable reason for the support or continuance of this Custom; but the Reason of it, which was given by a learned Lawyer, is because the youngest is least able to defend himself; certainly he could never mean Ability of Body, because 'tis frequently seen that the youngest Son is the Champion of the Family; and if he intended Ability in Estate, I would fain know what the elder Brother hath to defend himself, when by this unnatural Custom the youngest is entitled to the whole.  
I am not setting up for a Reformer of the Law or the Abuses of it; 'tis not a work for a single person, but rather for a Committee of able and skilful Men of that Profession appointed by the Government.  
Neither will I object against the Practice of it as heretofore in the year 1654. it hath been done, viz. That great part consists in known and apparent Untruths; That a Common Recovery ought not to be suffered in a Christian Nation, because 'tis Fictio Juris, which is an abuse of the Law; That when 'tis suffered at the Bar by the Tenant and Demandant, there is scarce a true word in all the Colloquium amongst the Sergeants, and that therefore an Estate Tail may more righteously be discontinued by a Feoffment with Livery than by the Statute de Donis.  
This was the Language of those times: They found fault likewise with that wicked Process of Latitat, that it was framed upon a supposed Falsehood by suggesting of a Bill of Middlesex sued out which is never actually done; and that the Defendant could not be taken there, because he is skulking about in another County, which is seldom or never true, and presently afterwards he is in Custodia Marescalli, which is as false as the rest; and that John Do and Richard Roe are Pledges de Prosequendo, when there are no such Men in Nature; these things and many more I could name of the like Nature, I esteem as trivial Matters, for no Injury is done to any Body by such Formalities.  
But when there is danger of Corruption in that which was originally intended for the great preservative of our Liberties, I mean in Trials by ordinary Juries, it may be worth a great deal of Pains and Study to propose some effectual means to prevent it, which is the chief end of this Preface, that you may at some time employ your Thoughts in so useful a piece of Service to your Country.  
I shall only give you a short History of such Trials, which is as followeth, viz.  
There are Opinions, that such Trials were had in this Nation by a Jury of Twelve Men long before the time of the English Saxons, though the Writers in those Ages give no account of this Matter.  
This is collected from that great esteem the Chaldeans had for the number 12. because of so many Signs in the Zodiac, those People applying themselves chief to the Study of Astrology.  
That from them this Number came to the Egyptians, and so to Greece, where Mars himself was tried for a Murder, by a Jury of that Number, and acquitted by an equality of Votes, which is the first Trial mentioned in History by a Jury of Twelve.  
That the Greeks frequenting this Island, to export our Tin, became acquainted with the Natives, and in process of time cohabited with them, who being a more polite People did introduce this way of Trials here; and 'tis very probable that some of our Customs came from them, because some of our Law-Terms, as Chirographer, Protonotary, and many more are derived from their Language.  
After the Conquest of Greece by the Romans, new Laws were instituted by them to govern this Nation, which was then a Province to the Conquerors; and though such Trials were then disused, yet they had that Number in several subordinate forms of their Administration.  
Afterwards when that great Empire declined, when the Britain's were forsaken by them, and left to the Depredations of the Pagan Saxons, than were other Trials introduced by that barbarous People, which was by Battle in doubtful cases, and when that could not be joined, than Purgations by Ordeal were allowed; Trials very agreeable to the uncultivated Temper of those People.  
Thus it continued till about two hundred years before the Norman Conquest; and than Ethelbert an English Saxon King received Christianity, and by his Example the Dispositions of the People were qualified into a more civil and peaceable deportment; then were those Trials for the most part laid aside, and that good King being at Wantage, (now a Market-Town in Berk-shire,) did there by the Advice of his Council ordain that Trials should be had by Juries consisting of twelve Men, which Law doth still continue.  
But notwithstanding such were then and are still the best and most effectual Methods to discover the Truth, yet Ordeals were used here for above one hundred and fifty years after the Conquest; and then about the beginning of the Reign of H. 3. were abolished by Act of Parliament.  
But Combats continued here till 6 Car. 1. so difficult are the English to part with any ancient Usage of their Ancestors, though in no wise suitable to them who live in a more polite and learned Age.  
Juries being thus confined to the Number 12. it was afterwards enacted by the Statute of 2. H. 5. That all Jurors returned for Trials of Issues, etc. should have 40 s. per annum.  
This Law continued for the space of an hundred and ninety years, or thereabouts, and then the Wisdom of the Nation considering that to be a very mean Estate for the support of a Juryman, a farther Provision was made by a Statute Anno 27 Eliz. That such Jurors should have 4 l. per Annum.  
And thus the Law stood for above an hundred years, in all which time this Kingdom hath been growing in Riches, its Trade is now extended to most parts of the World; and as that hath been enlarged, so the Price of our Lands, the Value of our Rents, of our natural Commodities, and of all our Manufactures have wonderfully increased, so that a Man of 4 l. per Annum is now in so mean a condition of life that he is no longer to be entrusted with the Trial of an ordinary Cause, and therefore by the Statute of 4 & 5 Willielmi & Mariae such Jurors are to have 10 l. per Annum.  
Now upon a moderate computation of the price of Provisions and other Necessaries in 2 H. 5. and how they increased in Value from that time till the Queen's Reign, it may be reasonably affirmed that 40 s. per Annum about the time when that King lived, would bear an equal proportion to 40 l. a year in her Reign; and if so, it may as reasonably be said, that 4 l. per Annum in her days would almost bear the like proportion to 80 l. per annum now, because of the vast increase of Riches by Commerce, and otherwise, in this last Age; and such an Estate doth now qualify a Man to be of the Grand Jury.  
The 40 s. per annum in King H's. Reign was esteemed a sufficient Estate to supply all the common Necessities of Life, Wheat being then sold for 12 d. per Quarter, and good Gascoign Wine for 40 s. per Tun. It was an Age when 20 Marks per Annum was a very good Allowance to maintain a Student at the Inns of Court, but too great a Charge for a Commoner to bear; and therefore the Lord Chancellor Fortescue tells us, that none but the Sons of Noblemen in Hospitiis illis Leges addiscebant.  
The Jurors in those days were all Knights, but are now mean and illiterate persons; for 'tis a very poor Estate which qualifies them for that Service. How can Matters of Fact, which often require great Examination, be tried by Men of such narrow Capacities, which are generally found amongst Men of 10 l. per Annum, for so it will be so long as the Degrees of Fortune make such a vast inequality amongst us.  
Experience teacheth us, that Men of such low Fortunes, and whose Education is generally amongst the Beasts of the Blow, have not the same sense of Honour and Virtue with Men of more elevated Qualities and Conversation; there must be danger of Subornation and Perjury among such Jurors: And what will the villainous Judgement in Attaint signify? I mean in respect to their Estates, viz. That their Goods be confiscate, their Lands and Possessions seized into the King's Hands, their Houses demolished, their Woods felled, and their Meadows ploughed: This is a very dreadful Sentence to a Man of a good Estate, which by the very Form of this old Judgement every Juror was supposed to have; but 'tis an empty sound to a Man of 10 l. per Annum, who cannot have all those Possessions, and but a very small proportion of either.  
It may be therefore thought necessary, that a farther Provision be made that none should be impanelled to try such Issues, but Men of 40 l. per Annum, or at least such as like the Jurors in Attaint, qui multa majora habent Patrimonia, than what will qualify a Petty Juror at this day.  
Gentlemen,  
The following Collection is the Product of your Labours: It was borrowed from you at the Bar, and 'tis but just to restore it.  
I know Men have generally very faint Inclinations to approve any Writings beside their own, and seldom declare in favour of a Book till they hear what success it has in the World; and even then are biased by the Multitude, who very often condemn without reading, or read without Understanding.  
I have heard it often objected (though I am still to learn upon what account) that we have too many Printed Books of the Law already, and that it was more certain and intelligible when fewer Volumes of it were published.  
I must confess some of the late Reports are collected with very little Judgement.  
But still there is a necessity of new Books, tho' not of such; for I would feign know how any Lawyer can now be able to advise his Client with the help and direction only of the Old Books? 'Tis true, we have but few of them, but 'tis because in former Ages all Causes (where the thing in demand did not exceed 40 s.) were tried either in the County Court, in the Hundred Court or in the Court Baron of the Manor: In those days the great Courts of Record at Westminster were not so full of Suitors as now.  
When Bracton wrote, the Justices in Eyre (who had the same Power with our Justices of Assize) went their Circuits but once in seven years; and a long time afterwards, even in the Reign of King Henry the Eighth, the Judges would often rise from the Bench in Termtime without hearing a Motion, or trying of a Cause; and I think the Practice did not much increase till this last Age; for Anno 10 Eliz. there was but one Sergeant at the Common-Pleas Bar for a whole Term together, and that was Sergeant Bendloes; and I do not read that he had any Business there; Nay at that time the Court of Chancery had no greater share of Practice than the Courts of the Common Law; for in the two and twentieth Year of King Henry the Eighth, Sir Thomas Moor being then Lord Chancellor, did usually read all the Bills, which were exhibited into that Court; but Business is now so much increased, that all the Council can scarce find time enough to read the Briefs of such Bills which are filled every Term.  
But the Law hath now its Residence in Westminster-Hall, most Causes of Value are there determined, and the great Number of Country Attorneys in our days, who (according to my Lord Coke's Opinion) by daily multiplying Suits have so wonderfully increased the Business of those Courts, that it seems very necessary that the judicial determinations there should by new Books be transmitted to future Ages.  
And though some Cases in this Collection, which were adjudged in the late Reign, may not have the Authority of Precedents, because they taste a little of the Times wherein the Administration of Justice was not so nicely regarded, as the Dispensation of such things which were then thought Political Rights, yet the Reader will find some good Arguments of Learned Men then at the Bar who endeavoured to support our sinking Laws.  
I do acknowledge, that if Men were just, honest and impartial to themselves and others, there would be no occasion for Books of this nature; and because they are not so, I will not make an Apology for the Publishing of this. I think the Book, (being done with so much Care) may be of good use to the Professors of the Law; but submit it to your Judgements. I confess, I am led by my Profession to Affairs of this nature, though my Circumstances disengage me from the suspicion of being an Author.  
Vale.   

A TABLE OF THE CASES Contained in the THIRD PART OF Modern Reports.  

A.  
ALdridge versus Duke, 110  
Ashcomb versus Inhabitants Hundred the Eltham, 287  
Airs versus Huntingdon, 251   

B.  
BAxter's Case, 68  
Baldwyn versus Flower, 120  
Ball versus Cock, 140  
Barker Mil ', versus Damer, 336  
Barnes versus Eggard, 39  
Beak versus Tyrrwhite, 194  
Banson versus Offley, 121  
Bishops, their Case, 212  
Bisse versus Harcoutt, 281  
Blaxton versus Stone, 123  
boil versus boil, 164  
Boson versus Sandford, 321  
Bowyer versus Lenthal, 190  
Bradburn versus Kennerdale, 318  
Brazen versus Deane, 39  
Brett versus Whitchott, 96  
Bridgham versus Frontee, 94  
Broad versus Piper, 268  
Burghs Case, 67   

C.  
CAlthrop versus Axtel, 168  
Capel versus Saltonstal, 249  
Carter versus Dowrish, 226  
Chapman versus Lamphire, 155  
Clarke versus Hoskins, 79  
Claxton versus Swift, 86  
Coghil versus Freelove, 325  
Cole versus Knight, 277  
Cross versus Garnett, 261   

D.  
DAvies Case, 246  
Dawling versus Venman, 108  
Dixon versus Robinson, 107  
Dobson versus Thornigrove, 112  
Do versus Dawson, 274  
Dorrington versus Edwin, 56   

E.  
ECcleston versus Speke, 258  
Evans versus Crocker, 198   

F.  
FItzgerald versus Villiers, 236  
Fisher versus Wrenn, 250  
Franshaw versus Bradshaw, 235  
Friend versus Bouchier, 81   

G.  
GRandison Lord, versus Countess of Dover, 23  
Grantham, Mil ', his Case, 120  
Godfrey versus Eversden, 264  
Gold versus Strode, 324  
Goring versus Deering, 156   

H.  
HAcket versus Herne, 134  
Hall versus Wybank, 311  
Hamson Serjeant, his Case, 89  
Hanchet versus Thelwell, 104  
Harman versus Harman, 115  
Harrison versus Austin, 237  
Harrison versus Heyward, 295  
Hebblethwait versus Palms, 48  
Hexam versus Coniers, 238  
Heyward versus Guppee, 191  
Hicks versus Gore, 84  
Hyley versus Hyley 228  
Hinton versus Roffey, 35  
Hitchins versus Bassett, 203  
Hobbs, qui tam, versus Young, 313  
Hoile versus Clerke, 218  
Holcomb versus Petit, 113  
Holloway's Case, 42  
Horner's Company versus Barlow, 158   

I.  
JAckson versus Warren, 78  
Jefferies Mil ', versus Watkyns, 161  
Jennings versus Hankeys, 114  
joiner versus Pritchard, 103   

K.  
KEllow versus Rowden, 253  
King versus Dilliston, 221  
Knight versus Cole, 277  
Knight Mil ' Case, 117  
Kingston versus Herbert. 119  
The King against Ayloffe, 72  
The King against Armstrong Mil '. 47  
The King against Atkyns Mil '. 3  
The King against Barns, 42  
The King against Baxter, 68  
The King against Beale, 124  
The King against Bunny, 238  
The King against Coney & al'. 37  
The King against Colson & al'. 72  
The King against Dangerfield, 68  
The King against Derby, 139  
The King against Fairfax, 269  
The King against G—l. 97  
The King against Griffith, 201  
The King against Grimes & al'. 220  
The King against Hethersel, 80  
The King against Hinton & al'. 122  
The King against Hockenhal, 167  
The King against Inhabitants of Malden,  
The King against Johnson, 241  
The King against Kingsmill, 199  
The King against Lenthal, 143  
The King against Marsh & al'. 66  
The King against Plowright & al'. 94  
The King against Rosewell, 52  
The King against Saloway, 100  
The King against Sellars, 167  
The King against Silcox, 280  
The King against Sparks, 78  
The King against Warden of the Fleet, 335   

L.  
LAngford versus Webber, 132  
Lambert versus Thurston, 275  
Lea versus Libb, 262  
Leigh's Case, 332  
Letchmere versus Thorowgood, 236  
Lidcott versus Willows, 229  
Lock versus Norborne, 141  
Lutwich versus Piggot, 268   

M.  
MAcklesfield Earl, 41  
Malloon versus Fitzgerald, 28  
Marsh versus Cutler, 41  
Mason versus Beldham, 73  
Mather versus Mills, 252  
Matthews versus Cary, 137  
Mayor and Cominalty of Norwich versus Johnson, 90  
Merchants Adventurers versus Rebow, 126  
Mordant versus Thorold, 281  
Moss versus Archer, 135   

N.  
NEwton & al' versus Stubbs, 71  
Newton Mil ' versus Creswick, 165  
Newton versus Trigg, 327  
Norwich Mayor, etc. versus Johnson, 90   

O.  
OBrian versus Ram, 170  
Okel versus Hodgkinson, 99  
Osborn versus Steward, 230   

P.  
Pain versus Partridge, 289  
Palmer versus Allicock, 58  
Panton versus Earl of Bath, 227  
Parkinson's Case, 265  
Pawley versus Ludlow, 87  
Peak versus Mather, 103  
Perkins versus Titus, 132  
Pitt versus Brereton, 70  
Plymouth Countess versus Throgmorton, 153  
Pool versus Trumbull, 56  
Price versus Davies, 152  
Prince's Case, 295  
Proctor versus Burdet, 69  
Prodgers versus Frazier, 43  
Proud versus Piper, 268  
Prowse versus Wilcox, 163  
Put versus Rawsterne, 1   

R.  
REves versus Phelpes, 264  
Reeves versus Winnington, 45  
Roberts versus Pain, 67  
Rodney versus Strode, 101  
Roe versus Clargis Mil '. 26  
Rowsby versus Manning, 330   

S.  
SAvier versus Lenthall, 273  
Shipley versus Chappel, 232  
Shotter versus Friend, 283  
Shuttleworth versus Garnat, 239  
Smith versus Goodier 36  
Smith versus Peirce, 195   

T.  
Tailor versus Brindley, 136  
Thirsby versus Helbott, 272  
Thompson versus Leach, 296  
Idem versus Eundem, 301  
Tippet versus Hawkey, 263   

U.  
UPton versus Dawkin, 97   

W.  
WHitehal versus Squire, 276  
Wytham Mil ' versus Dutton Mil '. 159  
Woodward's Case, 211   

Y.  
YArmouth Earl versus Dorrell, 75  
Young versus Inhabitants of Tottenham, 258    

DE Term. Sancti Mich. Anno 34 Car. II. in Banco Regis, 1682.  

Sir Francis Pemberton Chief Justice.  
Sir Thomas Jones, Justices.  
Sir William Dolben, Justices.  
Sir Thomas Raymond, Justices.   

Put versus Rawstern Mil '.  
AN Action of Trespass was formerly brought for taking of Goods, etc. and upon Not-guilty pleaded, 
Trespass is no Bar to Trover for the same Goods. Raymond 472  the Defendant had a Verdict.  
The same Plaintiff now brought Trover against the same Defendant for those Goods.  
The Defendant pleads in Barr the judgement in the former Action of Trespass, and upon a Demurrer, the Question was;  
Whether a judgement in Trespass vi & armis may be pleaded in Bar to an Action of Trover for the same Goods?  
This Case was argued by Mr. Saunders for the Plaintiff; and by Mr. Pollexfen for the Defendant.  
And to prove that it was no Bar, 
Lacon versus Bernard. Cro. Car. 35. Hutt. 81. Styles 202.  a Case was cited to be adjudged in the Common Pleas in the 20th year of King James, which was an Action of Trover and Conversion of one hundred Sheep: The Defendant pleaded a former judgement in Trespass brought against him, quare cepit & abduxit those Sheep, and that the Plaintiff in that Action recovered 2 d. damages, and that both Actions were for the same thing.  
The Plaintiff replied, that the two pence damages were recovered for the chase, and not for the value of the Cattle; and upon a Demurrer had judgement: For the smallness of the damages implies it was for the chase, and it shall therefore be intended that he had his Cattle again, and that the Conversion was afterwards.  
My Lord Coke in Ferrer's Case tells us, 
Ferrer 's Case, 6 Co. 7. Cro. Eliz. 676. Co. Ent. 39 Cro. Jac. 15.  that a Recovery by Verdict, Confession, or upon a Demurrer in a personal Action is a good Bar to an Action of the like nature, and for the same thing; but that must be understood where the same Evidence will maintain both the Actions.  
justice Croke reports the same Case to be ended by Arbitration; but that it was the Opinion of my Lord Anderson and justice Glanvil, that Trover and Trespass are Actions of different natures, and one may be brought where the other cannot be maintained; as upon a demand and denial Trover will lie, but not Trespass vi & armis, because the taking was not tortuous.  
And therefore it may be well intended that when the Plaintiff brought Trespass he was mistaken in that Action, and being in the wrong, was barred; but that will be no Bar where a right Action is brought; as if I deliver a Bond to another for advice, who refusing to redeliver it, I bring an Action of Trespass and am barred either by Verdict or Demurrer, yet I may bring Detinue.  
Trespass and Detinue are not the same Actions, 
Pro Def.  and therefore a judgement in one shall be no bar to the other; but where two Actions are brought for one thing to be recovered, in such case a Recovery in one shall be a bar to the other.  
There is no substantial difference between Trespass and Trover; for the disposing of the Goods in the one case is the same with the Conversion in the other; the taking vi & armis and likewise the Conversion are both tortuous, and therefore either Action may be well brought.  
But for the Reasons given by the Plaintiffs Council, he had judgement by the Opinion of the Chief justice and the other two judges, Jones and Raymond; of which justice Dolben did very much doubt.   

Dominus Rex versus Sir Robert Atkins Knight of the Bath & al'.  
AN Indictment was found at the Quarter Sessions held for the County of the City of Bristol, 4 Octob. 33 Car. 2. 
The County of the City of Bristol●  against Sir Robert Atkins Knight of the Bath, and Recorder and Senior Alderman of the said City, Sir John Knight Alderman, John Lawford Alderman and Joseph Creswick Alderman, setting forth,  
1. That King Henry the VII th'. by his Charter dated 17 Decemb. 15 Regni sui, granted to the Mayor and Commonalty of the Town of Bristol (the now City of Bristol being then a Town) and to their Successors, That if any shall procure, abett or maintain any Debate and Discord upon the Election of the Mayor, or other Minister, he shall be punished instantly by the Mayor and two Aldermen, to be chosen and named by the Mayor, after the quantity and quality of his offence according to the Laws and Custom of the Realm.  
2. That according to the Privileges granted by Queen Elizabeth to the Mayor and Commonalty of the said City, and their Successors, by Charter dated 28 June 23d of her Reign: After which time (as the Indictment sets forth) the said Town was made a City) there have been, or aught to have been, from the time of the making the said Charter, twelve Aldermen, whereof the Recorder was to be, and now is, one.  
3. That according to the Privileges, so as aforesaid granted, by all the time aforesaid (which is from the time of the Charter) after the death of every Alderman, the Mayor and the rest of the surviving Aldermen, & eorum major pars ad summonitionem of the said Mayor, being called together, have accustomed to choose another person of the circumspect Citizens to be an Alderman in the place of him so deceased; and the Mayor and Aldermen (by the same Privileges so granted) have been, and aught to be, justices of the Peace for the said City.  
4. That continually after the time of the said Charter of Queen Elizabeth, the Recorder, and the rest of the Aldermen, were and aught to be of the Privy Council, (de privato Concilio) of the Mayor in particular Cases concerning the Government of the City, whensoever the Mayor shall call them together.  
And such Privy Council (by all the time aforesaid) which still is from the said Charter of Queen Elizabeth) have not accustomed, nor ought not to be called together to transact any Business belonging to that Council, unless by the Summons and in the presence of the Mayor.  
That after the death of one Sir John Lloyd, being at his death an Alderman of the said City, the said Sir Robert Atkins, then being Recorder, Sir John Knight, John Lawford Esquire, and Joseph Creswick being all Aldermen then of the City, and free Burgesses of the City, to make debate and discord upon the Election of an Alderman in the place of the Alderman so dead, 8 March, 33 Car. 2. in the Parish and Ward of St. Andrew within the said City, did conspire to hold a Privy Council of the Aldermen of the said City, and therein to choose an Alderman sine summonitione & in absentia & contra voluntatem Richardi Hart Militis, then being Mayor of the City. And in pursuance of their said wicked Conspiracy, the day and year aforesaid, entered by force and arms into the Tolzey, and in the Chamber of the Council of the Mayor and Commonalty of the said City, commonly called The Council House, and there riotously, etc. did assemble, and the same day and year they the said four Aldermen una cum aliis Aldermannis, (which must be two more Aldermen at the least, which makes six, (and there were but five more in all then in being taking the Mayor in) the said rest of the Aldermen, not knowing their purposes, held a Privy Council of Aldermen, and then and there as much as in them lay, chose Thomas Day for an Alderman in the place of Sir John Lloyd, sine aliqua summonitione per praedictum Richardum Hart then Mayor, to meet, and in his absence, and against his Will.  
And they farther caused to be entered in the Common Council-Book the said Election, as an Order of the Privy Council; in which Book the Acts of the Mayor and Aldermen in their Privy Council are commonly written; from whence great Discord hath risen, etc.  
Which Indictment was tried at the Assizes at Bristol by Nisi Prius, and the Defendants found guilty; and thereupon Sir Robert Atkins, one of the Defendants (having then lately, before this Case, been one of the Judges of the Common Pleas, but then discharged of his Place after eight years sitting there secure) came into the Court of King's Bench, and in Arrest of judgement argued his own Case, not as Council, nor at the Bar, but in the Court in his Cloak, having a Chair set for him by the Order of the Lord Chief justice, and said as followeth;  
1. The Indictment in the first place mentions the Letters Patents of King H. 7. made to the Mayor and Commonalty of Bristol, that the Mayor with two Aldermen (such as he should choose) should by their discretions, according to Law, punish such as should make debate and discord at the Elections of Officers.  
They have not pursued this course against us, but gone the ordinary way of Indictment, and therefore I shall not need to speak to it.  
2. The Indictment in the next place proceeds to mention Letters Patents of Queen Elizabeth, granted to the Mayor and Commonalty in the 23d. year of her Reign, which provides, that there shall be twelve Aldermen, and how upon the death or removal of an Alderman, a new one should be chosen, that is, by the Mayor and the surviving Aldermen, and the greater number of them, being called together (as the Indictment suggests) by the Summons of the Mayor.  
The whole Indictment and the Offence, we are charged with being grounded upon these Letters Patents, I shall apply myself to speak to it; for our Crime is in the undue electing of an Alderman, namely not being summoned together for that purpose by the Mayor, and doing it in his absence.  
I must desire the Court to observe in what manner the mention of these Letters Patents is introduced.  
The Matter and Question before us is concerning the Election of an Alderman for the City of Bristol, which concerns the very being, and succession, and continuance of the Corporation: Nothing can more nearly concern it.  
The defects I observe in the frame of this Indictment are these:  
1. It does not so much as say or allege, that Bristol is antiqua Villa, or antiqua Civitas, or that there was, or yet is, any Corporation at all there, nor what it does consist of (if there be any) nor by what name they are called; whether there ought to be a Mayor or not; whether their Corporation be by Charter, or Prescription.  
And this Court cannot judicially take notice that there is any Corporation there, or what it is, unless it had been shown.  
Now if there be no Corporation, and no Mayor of right, than our meeting to choose an Alderman without his Summons, and in his absence, is no undue nor irregular Proceeding: It cannot appear to the Court whether the Mayor's Summons and presence at the Election be necessary or not.  
Now in all legal Proceed that any way concern a Corporation, it is constantly averred and alleged that there is a Corporation, and what it is, and how erected; and the least that can be in any Case is, to say that it is antiqua Villa or antiqua Civitas, where the Corporation extends to a Town or City which make any Prescription, or set forth any Custom.  
Thus we find it in the Case of the City of York, Dyer 279. plac ' 10. in the Case of a Custom of Foreign bought and Foreign sold, They Prescribe in being a Corporation. So in Latches Rep. 229. Harris' Case.  
In James Bagg's Case, 11 Co. f. 94. A Case of a Writ of Restitution to Restore a Capital Burgess to his Place and Office of a Capital Burgess in Plymouth; the Writ was directed to the Mayor and Commonalty of Plymouth; the very Words of the Writ suppose a Corporation, and show what their Name is.  
The Return thereupon by the Mayor and Commonalty is,  
That Queen Elizabeth granted to the Mayor and Commonalty, that the Mayor and Recorder should be justices of the Peace, and that James Baggs was a Capital Burgess, and did misdemean himself towards the Mayor, and thereupon he was disfranchised.  
In the printed Margin of that Case, (which I suppose is my Lord Coke own Opinion) it is said, That in their Return they first ought to prescribe, That there hath been a Corporation of a Mayor and Commonalty time out of the Memory of Man; and not to begin with the mention of a Grant made to a Coporation, as the Indictment does in our Case; and not show the Original and Erection of it, either by Prescription or Charter. And Mr. Trotman (a Learned Man) in his abridging of James Bagg's Case bids his Reader observe this Marginal Note.  
Yet in that Case the Return was but in answer to the Writ of Restitution, which Writ itself admitted there was a Corporation, and directs the Writ to them by Name; yet by the Opinion there, it was a defect in the Return not to show that they were by Prescription.  
And if it be necessary upon a Return of a Writ of Restitution to set forth how they came to be incorporated; to which Return there can be no Traverse taken, nor no pleading to it, as has been held by some; how much more in such a Case as ours of an Indictment, which must be traversed and pleaded to, and therefore aught to be more exact.  
That was in a Case of removing of a chief Member (a Capital Burgess of a Corporation; ours is in a Case of the choosing in of a chief Member (an Alderman) into a Corporation; so that ours is much resembling that Case in that respect.  
2. Another thing wherein the Indictment is faulty, is this, viz. In the manner of introducing the mention of these Letters Patents of Queen Elizabeth, upon which the Indictment is grounded, and upon the Construction of which the Case depends.  
The Indictment does not say positively and directly that Queen Elizabeth made or granted any Letters Patents to the Mayor and Commonalty of Bristol, That there should be twelve Aldermen, and for the appointing how they should be chosen; (upon which our Case arises) nor does it so much as say (continetur) which would not have been enough neither, but it introduces the mention of those Letters Patents not otherwise than by these Words, viz. Secundum Privilegia concessa per Literas Patentes, etc. There were or aught to be twelve Aldermen, Et secundum eadem Privilegia sic ut praefertur concessa per totum tempus praedictum after the death of an Alderman, the Mayor and the surviving Aldermen & eorum major pars ad summonitionem ejusdem Majoris convocati eligerunt & eligere consueverunt, etc.  
Now this is no positive and direct showing that there ought to be any Aldermen, nor how they should be chosen; but it is no more than the Opinion and Conceit of the jury that found the Indictment upon their perusal of the Letters Patents, which were produced in Evidence to them; the jury take it by way of Collection out of a Record, of which they are no proper judges.  
And this being in an Indictment which is the King's Declaration, and aught to be very exact and certain, and which is in a criminal proceeding to which the Parties must plead, and if convict, are liable to Fine and Imprisonment; the Law is more curious in this, than where Parties do agree civiliter.  
That all Criminal Proceed must be very exact and certain, is proved by this, (viz.) None of the Statutes of Jeofails would ever help them but by express Words except and exclude them from the benefit of them.  
It is said in Long's Case, 5 Co. 120, 121. That, If in Declarations between Party and Party for Lands or Goods, there must be great certainty expressed a fortiore, says that Case, must it be so in Indictments, which are the King's Counts or Declarations to which the Party shall answer, they ought to be full and not taken by Intendment, or to be by way of Argument; so it is held in Leeches Case, Cro. Jac. 167. and in Sir William Fitz-Williams's Case, Cro. Jac. 19, 20.  
Object. If it be objected, That the Indictment is but the finding of a jury, who are the Lay-gentz (as we call them) and they know not the forms of Law.  
Answ. The Fact indeed is found by the jury, but the constant course is to have the jury consent to mend the Form, and the King's Council are addised-with in the drawing of it, and after 'tis found; and sometimes the judges peruse it.  
The Indictment proceeds on and says, That continually after that time (which must refer to the date of the Letters Patents of Queen Elizabeth) the Recorder and the rest of the Aldermen were and aught to be de privato Concilio.  
(I have been Recorder there above these one and twenty years and never knew myself to be a Privy Councillor till now.)  
But the Indictment (unhappily) says de privato Concilio Majoris; there the Word Majoris (as big as it is) is but Terminus diminuens, it makes us but Privy Councillors to the Mayor. But this is a mistake too; for the Recorder and Aldermen are not a Privy Council to the Mayor, but the Mayor and they are a Council to the City. The like to this too appears in the printed Margin of James Baggs' Case.  
The Clerk who drew this Indictment, or the Council, who ever it was, thought they could not exalt the Mayor of Bristol high enough, unless they made him a Prince and furnished him with a Privy Council, and to fill the Kingdom again with a great many Reguli or petty Kings, as it was amongst the Britons before the coming of the Romans.  
It is part of the Misdemeanour charged upon James Baggs, that he did Ironically say to the Mayor of Plymouth, You are some Prince are you not? Now to say it to a Mayor in good earnest, as this Indictment does, I take to be much worse.  
3. The Indictment having made the Recorder and Aldermen to be of Mr. Mayor's Privy Council, it goes on, and lays it down for Law or Usage, That by all the time aforesaid (which is still from the date of the Patent of Queen Elizabeth) such Privy Council have not accustomed, nor ought not to be called together, to transact any Business that belongs to the Council (we must suppose the choosing an Alderman is such Business) unless by the Summons and in the presence of the Mayor.  
But upon what ground does the Indictment lay this down for a Rule? Is it because the Letters Patents so direct? If so, I agree it is a clear Case, for the Letters Patents that create a Corporation may mould and frame, and form its own Creature as it pleases.  
But then the Indictment ought to have alleged it positively, that the Letters Patents do so provide, which it does not; but the Indictment speaks it by a kind of implication and uncertainty, but not positively, nor directly: It says, that continually after the time of the Charter, they have not accustomed to meet without the Mayor's Summons, and in his presence.  
It may be they rely upon the Usage and Custom for it. This can be no legal Custom nor Prescription, for we know the Head and Original of it, which is but from the 23th year of Queen Elizabeth: so that 'tis not like the River Nile.  
If they say the Usage shall interpret the Charter.  
I answer. Usage may expound very ancient Charters, where the words are obsolete and obscure, and may bear several senses; but this Charter has not so much as ambiguous Words, nor any thing that can hear such a Construction.  
But at last we shall be told, That the Common Law does operate with the Charter, and requires the Mayor's Summons and Presence to the choice of an Alderman, and also in all such like Cases.  
This is now the only Point to be spoken to, and I shall apply myself to it.  
I think it will be granted, That the Mayor has no Negative Voice in the Election of an Alderman (as great a Prince, and as absolute as the Indictment will make him;) he has but one single Voice, and if the majority of the Votes be against his Vote, the majority must carry it against the Mayor.  
The Words of the Charter do no more require the Mayor's Summons and Presence than it does that of the signior Alderman.  
The Mayor is named in the Grant, out of necessity, it being part of the name of the Corporation to whom the Grant must be made. He is named out of Conformity too, he many times being none of the Aldermen, and therefore could not be included in the naming of Aldermen, but must therefore be named by himself. And besides, I agree it is due to him out of Reverence. They usually say, He represents the King, but that is but a Notion, and a Compliment to him; he has no more power than an Alderman, who is a justice, and a judge of the Goal-Delivery as well as the Mayor.  
If the Charter had intended, That there can be no choosing of an Alderman, but by the Summons of the Mayor, and in his presence, it would surely have made him of the Quorum, in that Clause that provides for the Election of an Alderman; but that it does not: The only Quorum is not of the sort of Persons, but of the majority of the Electors, Major pars eorum (having mentioned before, the Mayor and Aldermen.)  
Nay, there is something to be observed out of the Charter itself, which proves that the Queen intended no such thing; and that is, there are other Clauses in the same Charter to other purposes, that do expressly appoint Quorums, and the Mayor and Recorder are made to be of the Quorum, which proves, That where it is not so expressed, the Mayor himself is not of the Quorum; and this indeed led us to that Opinion and Construction, that we proceeded to make our Election upon it: A Charter in one Clause of it, is best Expounded from other Clauses in the same Charter.  
In the Clause that gives them power of Gaol-Delivery, the Mayor and Recorder are both of the Quorum.  
So in the Swearing of a New Alderman, it is expressly provided, that it shall be done before the Mayor and Recorder both.  
In the Clause that gives them power to Try Felons, and to keep a Sessions of the Peace, it appears by the express Words That it may be done in the Mayor's absence, and without him; for there the Quorum for that purpose is, The Mayor and Recorder, or one of them. So that a Sessions may be held without the Mayor; yet I would never do it if I could prevail with the Mayor to join with us, as we earnestly endeavoured time after time to do in the Case before you, for the choosing of an Alderman, but he utterly refused us, at four several times, at some good distance of time.  
Object. If it be said, That the power to elect an Alderman is given to the Mayor and Aldermen, or the major part of them; and so the Mayor by himself is particularly and expressly named by the Name of his Office; and therefore is of the Quorum without any other express making of a Quorum.  
Resp. This I have already spoken to, (viz.) upon what account he is so named, and it could not be otherwise.  
But that this does not so make him of the Quorum in it, is manifest by this, that those other Clauses where there are express Quorums of persons, tho' the Mayor be there likewise mentioned in the beginning of the Clauses, yet he is repeated over again, when they come to make him of the Quorum: This shows the naming him before by his Office did not do it, if it did, the naming of him again in the Quorum, will be a Tautology, and a vain Repetition.  
But perhaps it will be said, It belongs to the Office of a Mayor at the Common Law, to summon the Corporation (and amongst the rest the Aldermen) when he sees there is occasion, and he must as Mayor be present among them, or nothing can be done.  
Let us examine the truth of this.  
Those that advised the Indictment were not of this Opinion; and I heard it was said at the Trial, that it was drawn with good advice; for the Indictment itself challenges this Right, to the Mayor upon another ground.  
It would intimate as if the Words of the Charter gave it him, as I have already observed; which says, that secundum privilegia concessa est: therefore they thought it was not his due at the Common Law.  
1. For his Name of Mayor, that imports no such thing: He is Major, that is, the Greater, the more Eminent; this notes his pre-eminence in Respect and Reverence, but gives him little more of power than what the rest of the Aldermen have.  
The like Office among the old Romans was the Praetor, which (as Minsheu says) comes from praeitor, a praeeundo, he does praeire, or praecedere, or praesidere. He goes first, and sits uppermost, but it gives him no more power. But the Mayor in our Case would neither lead nor drive.  
But if there can be no Election of an Alderman without his Summons and Presence, and if he be wilful (as the Mayor in our Case was) he is not only Major Maximus, but Dominus fac totum (as the vulgar Saying is) or Dominus faciens totum.  
The twelve Aldermen without him, will be but so many Ciphers; the Mayor will be the Great Figure, and the Aldermen will signify only in conjunction with him. We may then say of every Alderman, as the one Grecian Captain said of the other of Ulysses, Nihil est Diomede remoto.  
Mr. Mayor will be that which the Logicians call Causa sine qua non quae per se nihil facit, sed tantum esse aliquid sine qua Reliquae causae non faciunt. So much for his Name and Title.  
Then for the Office itself. That does not require his Summons nor Presence in all the meetings of the Aldermen; for the Business of the Corporation, it is not incident nor essential to his Office of Mayor by the Common Law.  
The Common Law looks upon him as the Head or Chief of a Corporation; but he is no Officer of the Common Law, to whom the Common-Law limits or prescribes any Duty, as it does to a judge, a Sheriff, a Conservator of the Peace, a Coroner or a Constable: These are all Officers at the Common Law, and the Common-Law instructs them in their Power and Duty.  
But the Mayor being the Head of a Corporation, and a Corporation having its essence by Charter or Prescription (which presupposes a Charter) he has no power but what the Charter expressly gives him. The Common Law takes no farther notice of him.  
Let us examine the Ground and Nature of a Corporation, and there we shall find the true Nature and Office of a Mayor, or any other Head, (for 'tis all one.)  
The true Ground and Original of Corporations in Cities and great Towns, is this: Those are generally the Staples of Trade and Merchandise; and Trade (as is said in the Case of the City of London, 8 Co. 125. a.) cannot be maintained without Order and Government. And therefore the King, for the Public Good, may exect Gildam Mercatoriam, a Fraternity or Society, or Incorporation of Merchants, to the end that good Order and Rule shall be by them observed, for the Increase and Advancement of Trade and Merchandizing.  
Suppose the King should by his Charter Encorporate a Town, by the Name of Mayor and twelve Aldermen, and should not set out their Duty and Office.  
What power would the Law give them in that Case? They would have no power as Conservators of the Peace, or as justices of the Peace: They could neither Fine or Imprison. If they should take upon them to meddle in these matters, without express power given them by the words of the Charter, It would be Suitor ultra Crepidam.  
Therefore Charters usually add these Powers by express Clauses to those purposes, and make the Mayor a justice of Peace, or a judge of Goal-Delivery; but then he acts in those Powers not Quatenus Major, nor eo nomine; but because of the express power given him, as it might have done to any other Man.  
The uniting the Powers in one person, does not confound the several and different Capacities of that person.  
That the Charter gives the only Rule in these Cases, and that a Corporation is a mere Creature of the Charters that does constitute it, and gives it its Being; and therefore the Bounds and Limits of its working appears, by this.  
Suppose that neither this nor any other Charter had given to this Corporation of Bristol any power to choose a new Mayor, or new Aldermen upon the Death of the old, they could then have made no new Election, but when the Mayor and Aldermen had died, the Corporation had been dissolved. The Charter that gives them their Being, must provide for their Continuance and Succession.  
Thus it is held in the Case of the Corporation of Dungannon in Ireland, in those Reports that go by the Name of the Lord Coke 's 12 Rep. 120, 121. So that the Charter must provide for an Election in order to a Succession, or otherwise the Law will not help them.  
And though the Mayor is the more Eminent and Excellent, and aught to have greater respect and reverence, yet the subject matter that we are upon is to be considered in the nature of it, viz. The Election of an Alderman. It is not a matter of Interest, or of Privilege, or of Power, for then the Mayor ought to be preferred in it. But it is matter of Duty and Labour, and Trust and Trouble. It is Officium, not Dominium, to choose an Alderman. It is rather a Burden than a Power or Authority; as is said in the Mayor of Oxford 's Case in Latches Rep. 231.  
But than it will be asked, that if it depend upon the Charter, and not upon the Common Law, Who shall appoint the time of Election, if the Charter be silent in it, as here it seems to be? This will be a great defect, and so there will be no meeting, nor no Election, and so the Corporation will expire.  
To this I Answer, That the Charter does provide for it, for those whose Duty it is to make an Election, it is their Duty to agree to meet for that purpose, and to appoint the time, or else they do not discharge their Duty. They break their Oath and are punishable for their Omission, and may forfeit their Charter by it.  
Now I do not deny but it is the Duty of the Mayor, and it is the equal Duty of the Aldermen, to see a time be appointed for an Election.  
And as the Mayor is the Chief in pre-eminence, so it aggravates his neglect if he refuses it: But his neglect of his Duty will not excuse the rest of the Electors for the not doing of their Duty, and the performing of their Qaths.  
If it be said, What if they do not agree upon the time, but are divided?  
I Answer. Whoever can carry an Election when they are met and choose shall also govern in the time of meeting if there be any difference about it; and that is not the Mayor, but the Major pars eorum, etc.  
Now this agrees with the Rule of the Law in the like Cases.  
In a Commission of the Peace to try Felonies, etc. And to hold a Court of Quarter-Sessions, Who shall issue out the Summons, and appoint the Time?  
Answ. Those that constitute the Court, and are to Exercise the Power, must issue out the Summons. If twenty justices of the Peace, not having one of the Quorum amongst them, should issue out a Summons for a General Quarter-Sessions, it would be void; for twenty justices of the Peace cannot hold such a Sessions, if there be not one of the Quorum among them: Nor can the Custos Rotulorum alone do it, though he is commonly most Eminent.  
Thus is it in the Commission of Gaol-Delivery, and of Dyer and Terminer. We may see the Forms of them in Crompt. Jurisd. of Courts, f. 121, 125. The express words of their Commission, for appointing time and place, Ad certum diem quem vos tres vel duo vestrum (Quorum vos A. B. & C. D. unum esse volumus) ad hoc provederitis.  
And therefore there was no need of any more express Provision in the Charter, for a Summons for an Election of an Alderman, or the appointing of a time.  
In the next place, for the necessity of the Mayor's being present, as well as their meeting by his Summons, I see no reason for it.  
It is true, there is a Case in Print that seems to make for it, tho' I never yet heard it so much as mentioned, either at the Trial (for I was not there) or throughout the whole Case; yet it is fit for me to take notice of it; for I make no doubt but before we have done we shall hear of it. It is in Sergeant Rolls' Abridgement, Part I. Tit. Corporation, f. 513, 514. Case 5, 6, 7. Between Hicks and the Borough of Launceston in Cornwall.  
Resolved per Curiam (which were only two judges, viz. the Chief justice Richardson and justice Croke, no other of the judges being there.)  
That if a Corporation consists of a Mayor and eight Aldermen, with a Clause in the Patent, That if any of the Aldermen die, that then the Mayor and the rest of the Aldermen within eight days after shall Elect another; though it be not limited, that they or the greater number of them may elect, yet the greater number of them may elect.  
And if the Mayor, at the time of the death of an Alderman, be absent at London till after the eight days; and the rest of the Aldermen within eight days, come to the Deputy Mayor and require him to make an Assembly of them, to elect another within the eight days, and he refuse; and upon that the greater number of the Aldermen meet without the Mayor or his Deputy, and Elect an Alderman; that it is a void Election, for the Mayor ought to be present at it, by the Words of the Grant.  
This seems to be a stronger Case than ours, for there is a certain time limited, by which they must make their Election, viz. eight days.  
I first Observe, That this Case (as far as I can find) was not a Case depending by any Suit or Action; for in that Case it is said, That a Writ was granted to make a new Election of an Alderman. So that I suppose it was upon a Motion only: I have a Copy of the Rules which shows it to be so (as I take it.)  
Then it does not appear to be upon an Argument, for had it been so, two judges (I presume) would not have determined it, but have put it off till the Court had been full (as usually they do) therefore it was not so solemn, nor has not so great Authority.  
But take it as it is.  
The time of eight days being limited, by which the Election was to be made, makes the Case never a whit the stronger; for there the judges declare, that there may be an Election after the eight days, and the limiting that time was to quicken them.  
Then observe the ground those two judges went upon, they do not say it ought to be so at the Common Law, as doubtless they would, had they thought that the Common Law would have ruled it; for if the Common Law serves for it, it was idle to resort to any other ground.  
But the judges in the Case of Launceston say, that the Mayor must be present at the Election, by the Words of the Grant. So that they went by that Rule which I have urged, which is the words of the Grant: 'tis the Charter only must give the Rule, as I have Argued all this while.  
Now what the words of the Charter were, in the Case of Launceston, does not appear in the Report of that Case. Perhaps there was an express Provision in the Charter, requiring the meeting of the Aldermen by the Summons of the Mayor, and in his presence, which if so, then there is no disputing against it.  
And the drawer of the Indictment against us, has so drawn it, as if the Charter in our Case did so require it too. But there is nothing to that purpose; nay, as I have observed, there are concomitant Clauses that give another construction, and argue to the contrary. Therefore the Case of Launceston differs from ours.  
But there is another thing wherein the Case of Launceston and ours differs.  
I am no Enemy to the Government I Live under; if any man think otherwise of me, I care not, because I cannot govern another Man's Thoughts.  
I do agree that this Sovereign Court of the King's Bench, as is resolved in James Bagg 's Case, hath a super-intendency, and a special Authority in Cases of this nature, which more concern matter of Government and the public Peace and Order, than any Man's private Right or Property.  
And in such Cases this Court governs itself much by the Circumstances of the Case.  
Now let us mind the Circumstances of the Case Reported by Sergeant Rolls, and of our Case, and let them be compared, and there will be a very wide difference between them. And therein I dare appeal to any rational unbiass'd Man in the World, for the Innocency of our proceed in the whole matter.  
The Mayor in the Case of Launceston, happened to be in London at the death of the Alderman (to supply whose place there needed the Election.) He was not in the Town that was to choose, whereof he was Mayor when the Election was made.  
The Aldermen were under an apprehension that they should be guilty of a great omission and neglect of their Duty, and perhaps had some thought of their being under an Oath too, and that they might be liable to punishment if they did not choose within the eight days prescribed by their Charter; nay, 'tis likely they thought they could make no choice at all if they did it not within the eight days: Tho' all this was but their mistake of the Law, yet it was very pardonable in them.  
The judges in their Resolution upon that Case, rectify that Mistake, and a new Election is thereupon ordered by this Court.  
The Mayor there was not wilfully absent, for he was at London when the Alderman died: he was at a very great distance from his Town too viz. Launceston, about 200 miles, as I take it; so that he could hardly hear of the death of the Alderman in the eight days time, and go down thither before the end of the eight days, there was no great necessity of an Election so soon.  
And the Aldermen had done what they did out of a zeal for the Public; though it were a zeal without knowledge.  
But I do not find that the void Election and the Alderman's meeting about it was held a Riot or an unlawful Assembly.  
No, they were not so much as blamed for what they did; nay, sure they were rather to be commended for their just intentions.  
But our Case was quite another thing.  
And all our Circumstances, and the very plain words of our Charter that appoints the manner of our Election, we had, to our great charge, and upon good advice, drawn up in a special Plea; (for the Question truly arises upon the words of the Charter, and the construction of them.) How it happened I cannot tell, but a judge ruled us to plead not Guilty; our chargeable special Plea came in a little too late.  
It was a matter of Record, and of Law, and fit to be determined by the judges than by a Iury.  
But these in truth were our Circumstances, as I shall briefly relate them, and I am ready to make out the truth of them.  
An Alderman of Bristol tho' chosen, yet cannot officiate till he be sworn; he cannot be sworn (by the express words of the Charter) but before the Mayor and Recorder both.  
I being the Recorder of Bristol, happenned to be there some time before the day of choosing Members to the Oxford Parliament not long after Sir John Lloid's death: I was indeed invited thither.  
Sir Richard Hart the then Mayor, and all of us (I think not one Alderman absent) were then met in the Council Chamber, the usual place for that purpose: we had nothing else to do.  
It was moved that we might then make choice of a new Alderman, while not only Mr. Mayor was present, but while the Recorder was there too: So that the Party chosen might instantly have been sworn and entered upon his charge; for they have their distinct Wards: And the Recorder many times comes not thither in a year or two; for I live forty Miles from them, and I seldom tarry above two nights at a Gaol-Delivery; but then (as it fell out) I was there upon another occasion.  
None opposed it but Mr. Mayor, and he did it upon a Ceremony and Compliment, as he pretended, because Sir John Lloid, (as he said) was not yet buried.  
Out of respect to Mr. Mayor, we did forbear.  
Some good time after, and after Sir John Lloid had been buried, I happened unexpectedly to be there again; and Mr. Mayor was earnestly pressed again then to go to an Election upon the former reason, that the new Alderman might presently be sworn.  
Mr. Mayor still refused; I do not remember but all the rest were very willing to have gone to an Election.  
We did the second time forbear, tho' I think we were all there (I am sure a great number.)  
I tarried then four or five days, it was at the Election to Parliament, the Poll lasted six days; but I left them at the Poll, I was not fond of being chosen.  
The Evening (as I take it) before I went away, we were again upon the place, and the Mayor with us, and he was again pressed to it, but wilfully went away, and we still forbore.  
But that night some of us signed a Writing, desiring Mr. Mayor to join with us, and we declared in it, if he did not join, we would proceed without him, being the major pars.  
This shows we had no design to choose in his absence; nay, it plainly appeared, that the design was on the Mayor's part; for he knew I could not stay, and he was desirous to choose in the absence of some of us, that he might carry the Election against the person next in course to be chosen, and every way qualified (viz.) (Alderman Day.)  
I consulted the Charter, and found it as I have now observed upon it, and was clearly of Opinion, for the Reasons I have offered, that in such Circumstances the major part might choose.  
We gave notice to the Mayor and all the Aldermen then in Town, and tho' the Government is most miserably divided, yet in this Business there was nothing of Faction, and the different Parties were not engaged; only the Mayor had his Design. For we were six Aldermen at the Choice: Sir Robert Cann, an intimate Friend of the Mayor's being lame of the Gout, sent us an Excuse, but would approve of our Choice.  
Another of our number, one of our six, is a zealous Man of Mr. Mayor's way; yet not taking that to be now concerned, joined with us, and voted the same way. We were six, and this appears by the Indictment, and we were unanimous in the person we chose.  
No other person was so much as named, nor I believe thought on by any Body, unless by Mr. Mayor; there were but four Aldermen more in being, for Mr. Mayor was none.  
And the person chosen was not only next in course, but every way qualified; has a great Estate (worth three or four of some of the Aldermen) no Tangle of a Fanatic, a constant Churchman, he had but one great Fault; he gave his Vote at the Election to Parliament for myself and Sir John Knight, against Mr. Mayor and Sir Tho. Earl.  
The person is not sworn to this day, nor does desire the Office, but rather declines it, being fit for it: He should have been Mayor this Year in course, but is put by it, and he is contented.  
There has been another since chosen in his place, by the Votes of five only, (Sir Richard Hart the Mayor being one.) I am sure they are not major pars.  
And for this choice by six, who are justices of the Peace as well as Mr. Mayor, and the other four, we who are four of six, are all Indicted for a Riot upon the account of this Election. And this Indictment is found before Mr. Mayor our Fellow justice, and four more at the most; so that five, who are the lesser number, exercise their Authority over those that were six in number when they acted, which fix were as much justices of the Peace as they five.  
It is observable, that tho' we were six of us, and all unanimous in our Election, yet they have politicly Indicted but four of us, and left two out, because it would have been too gross and palpable, if six justices of Peace should have been indicted before a lesser number of their Brother justices.  
But had they Indicted all six, it would then plainly have appeared too that the choice had been made by the greater part, which they wisely thought to conceal; but yet it does appear in their very Indictment (though darkly couched in it,) for it says that we four being Recorder and Aldermen, Cum aliis Aldermannis, did choose the Alderman; that word (Aldermannis) being in the Plural Number, must be two more at least.  
If it shall be adjudged that we cannot choose an Alderman, but by the Mayor's Summons, and in his presence, these Mischiefs will follow.  
That he will wholly govern and dispose of Elections at his single will and pleasure; for he that can order the time as he pleases, and forbear to summon the Electors till he sees his own opportunity and advantage, tho' often desired to go on upon it, and refuses to do it time after time, till such as will not comply with him be out of the way (as the Recorder is very seldom there, and tarries but a night or two, and then is in a hurry of Business, and most of the Aldermen are often at their Country Houses) the Mayor will cast the choice upon whom he thinks fit, as in this case he has done. This Mayor and four Aldermen have rejected the choice made by six, and of the person that was next in course, and every way qualified: And yet the Charter thought not fit to trust any fewer than the Mayor and the whole Bench of Aldermen, in a matter of this importance to the City.  
If it be said, That in case the Mayor unreasonably defer it, we may complain to this Court, viz. the King's-Bench, and have a Mandamus, or apply ourselves to the King and Council to compel him to proceed to an Election.  
Who will be at so great a charge and trouble? And that course is not so speedy, it may chance to be in a Vacation; but let it be as speedy as can be, the Mayor in the mean time has obtained his Ends, and gained his Opportunity, and done his Work, as the Mayor in our Case did; where the Mayor and four more (but five in all) being minor pars, have controlled the choice made by the major pars.  
If it shall be said, That if the major pars be present, and join in Voting to an Election, tho' they divide in the person, yet the major pars so met shall make a good Election, and in Law it shall be the choice of all present.  
That I must deny, for the words of the Charter are, That the major pars superviventium, shall make the choice, that is, as I understand it, agree in their Votes or Voices in the Party chosen, and so it was in the choice that we six made. This agrees with the Rules of the Common Law, in Elections and Leases to be made by Corporations. Dyer 247. plac. 74. and Sir John Davies Rep. 47. And this agrees with the Statute of 33 H. 8. cap. 27.  
But if this should not be Law (as I take it is) yet the subsequent Election of an Alderman, made by the Mayor and four Aldermen more, cannot be good; for though the Mayor and seven Aldermen were present at it, yet three of them did not join in going then to an Election; for they had joined with us before in our choice, and therefore opposed any after Election to be made.  
But they have gotten a conceit among them at Bristol, that what is done in a Man's presence, where his presence is required by their Charter, though he descent and oppose what is done, is yet legally done.  
As in the Case of the Swearing of an Alderman, by the express words of the Charter it cannot be done but before the Mayor and Recorder both. This Sir Richard Hart was duly chosen an Alderman long ago, but not sworn until the last Gaol-Delivery when we were going to Try the Felons. I being present, they thought that sufficient to satisfy the Charter, and in a Tumultuous manner, with an hideous noise, they cried out to swear him, and this was not the usual place neither for it. I opposed the Swearing of him, and I will justify it, that he was utterly unfit to be Sworn, by something that happenned since his being Elected an Alderman; they would not hear me, but resolved to proceed to swear him, because I was present with the Mayor. Thereupon I withdrew, and in my absence they went on to swear him, and he now acts as an Alderman, and as a justice of Peace, under this colour.  
If no Election of an Alderman can be made but in the Mayor's presence, it will be in the power of one single person (if he be obstinate and wilful) to forfeit the Charter. For if he find the Aldermen like to choose contrary to his mind, he need but with draw, and all the rest are insignificant persons, and so there shall be no Election in any reasonable time, and thereby the Liberties forfeited.  
If this absolute power allowed to Mayors may serve a politic Turn for once, it may do as much Mischief another time; for he may be of a contrary and cross humour to what may be desired. And he is not a person nominated by any superior power to that place, or imposed upon the Corporation, but chosen from amongst themselves, and chosen by themselves: But tho' they choose him, yet it is not safe to trust all the Liberties of the City in the Breast of one Man; for one man may easily change and be wrought upon, where many cannot. It is better to trust twelve than one.  
The Right of Election is a very tender thing, and it is a Maxim at the Common Law, and strengthened by several Acts of Parliament, That Elections should be free.  
By the Stat. of Westm. the 1st. in the time of that Wise and Excellent King Edward the I. It is Enacted, That Elections be free. And it forbids under a grievous Penalty (those are the words) that nul haut home, no great Man (such as every Mayor is in his sphere) shall disturb to make free Election.  
Sir Edward Coke in his 2 Inst. f. 169. in his Exposition of that Statute, says it extends to all sorts of Elections, and agreés with the Maxim of the Common Law.  
Now if the Mayor shall at three several times refuse the advice and desire of the Aldermen, and knowing that they can make no choice without him, refuse to join with them till he sees his own time and advantage, he will have his own choice, do what they can; for before they can complain of him (which is a work of time and charge, and trouble) he will have done his work, and so prevent them.  
And then where is the freedom of Election?  
This could never appear more plainly than in this Case of ours, where the Election by the majority is set aside, and the choice made by a lesser number, and in effect by Mr. Mayor only, is that which carries it. It plainly appears that we had no sinister design to do any thing without the Mayor, for we did all we could to get him to join with us, and he thrice denied us; but it as plainly appears that the Mayor had a design in refusing to do it till some of us must be gone, and then to steal an Election behind our backs, by a lesser number, when he had the advantage.  
After all that I have said I do agree, that had eleven Aldermen of us gone about an Election without so much as desiring the Mayor to join with us, or it may be upon once or twice being refused; or when the Mayor had been occasionally absent; or had it any way appeared that we meant a surprise in it; or had we made a Choice, subject to the least Exception, and had he not obstinately gone away from us, being in person upon the place, without so much as giving us the least reason for his refusal, I should have held my tongue and not have concerned myself any farther in it. I hope it sufficiently appears, that I have been no Enemy to Government and Order.  
But to choose an Alderman was our Duty, and we were under an Oath to do our Duty, and we did but discharge our Trust.  
I may (I think) save myself the labour of arguing, that however, if we were mistaken in the Construction of the Charter, and in the point of Law in the making of our Election, yet here is no Riot in the Case (for we are indicted for a Riot) for a Riot is the doing of an unlawful act with force and violence; neither are we an unlawful Assembly, for that is, where there is an intent to do an unlawful Act, but still with force and violence, but they go away without doing it, as appears by Poulton de Pace Reg. & Regin. fol. 25.  
And in case the Election we made be adjudged duly made, than the pretence of a Riot vanishes of itself, as is held in Eden's Case, Cro. Eliz. 697. If the Indictment be void for the principal matter, which in the Case there, was an unlawful Entry against the Statute of 8 H. 6. where that Statute was misrecited, they were not allowed in that case to stand upon the Riot.  
I have but a short word more.  
I have been the Recorder of Bristol these one and twenty years, longer I think than any Man can be remembered. I have sworn all the Aldermen that are now upon the Bench, in my time, and many more who are now dead. I can say it without vanity, till the time of this unhappy Election of Members to the Oxford Parliament (which I sought not) I had the good Will of all sides, even of this Mr. Mayor, who was, Sir Richard Hart; for I never would join with any Party, but did all I could, when I came amongst them, to join them together and unite them: For ever since they grew rich and full of Trade and Knighthood, too much Sail and too little Ballast, they have been miserably divided.  
And unless this Court (to whom I think it properly belongs upon complaint in such Cases) will examine their Disorders and command Peace and Order to be observed in our Proceed, I cannot safely attend there any more, nor hold any Gaol Delivery.  
I submit what I have said to the Court.  
Whereupon the Court arrested the judgement.   

Lord Grandison versus Countess of Dover.  
IN a Prohibition the Case was. 
Where an Administration once granted ought not to be repealed.  Charles Heveningham died Intestate leaving an only Sister Abigail, than an Infant. The Countess of Dover, who was her Great Grandmother, came into the Prerogative Court, and prayed to be assigned her Guardian Ex officio, which was granted, and thereupon she obtained Administration durante minore aetate.  
Afterwards my Lord Grandison brought a Prohibition suggesting that the Court had granted Administration upon a surprise, and being Grandfather to the Children, and so nearer of kindred, prayed that Administration might be committed to him.  
The Lady replied, that it was obtained after great deliberation, and without any surprise; and upon a Demurrer the Question was, Whether this Administration was well granted to the Lady.  
It was argued now by Dr. Master for the Plaintiff, and afterwards by a Common Lawyer on the same side, in Hillary- Term following. And by Dr. Reins, and Sir William Williams for the Defendant.  
The Civilian argued, That the Father of both the Children, died intestate, and that their Mother administered, and afterwards made a Will, of which she appointed my Lord to be Executor, and thereby committed the Infant to his Custody; which being in Fact true, the Curatorship of the Living Child, by the Civil Law, draws to it the Administration of the Estate of the dead Child.  
There is a Statute Law which empowers the Father by Deed or Will to dispose the custody of his Child under Age, 
12 Car. 2. cap. 24.  to any in Possession or Remainder, who may take the Profits of his Lands, and possess himself of the said Infant's personal Estate, and bring Actions in relation thereunto, as a Guardian in Socage might have done. And wherever a Father or 
† Quare of the Mother.  Mother has made such a disposition, a judge cannot assign a Guardian.  
The Spiritual Courts have power to repeal this Administration granted to my Lady Dover; the Right is not in question, for whoever has it reaps no advantage, because 'tis for the benefit of the Infant; the contest is, who ought to be admitted by the Spiritual Court to Administer?  
It cannot be denied but that the Great Grandmother is a degree more remote than the Grandfather: If therefore that Court hath entrusted one who ought not to have Administration, they have an undoubted power in such case to make an Alteration.  
If my Lord had been Administrator, it had been agreeable to the Common-Law, for he is Guardian in Socage durante minore aetate.  
E contra. 
E contra.  It was said, That my Lord was really indebted to the Estate of the Infant intestate, and therefore as this Case is, the Spiritual Court ought not to repeal the Administration once granted, for 'tis for the benefit of the Infant.  
'Tis not material who shall be Administrator, for he who is so durante minore aetate, hath no power over the Estate; he is only a Curator in the Civil Law, which is in the nature of a Bailiff in our Law, who hath only power to sell bona peritura.  
Probate of Wills did not Originally belong to the Spiritual Courts de jure, they had that Authority per consensum Regis & Magnatum: And as those Courts had not original jurisdiction in such Cases, so they had no power to grant Administration, till enabled by the Statute of Edw. 
31 Ed. 3. cap. 11.  3. For before that time the Kings of England by their proper Officers solebant capere bona intestatorum in manus suas.  
'Tis plain that the Ordinary had no power by the Common Law over an Intestate's Estate, for he could not maintain an Action to recover any part of it: now if the Law had given him a power over the Goods; it would likewise have given him an Authority or Remedy to recover them.  
An Action would have lain against him at the Common Law, 
13 E. 1. cap. 19  and by the Statute of Edw. 1. which was made in affirmance thereof, if he had possessed himself of such Goods, and refused to pay the Debts.  
Then since he hath no original Power in this Case, and this being a special kind of Administration, when he hath once executed that power he shall not repeal it; and the Court inclined to that Opinion, vid. 9 Rep. Henslow's Case.    

DE Term. Sancti Mich. Anno 35 Car. II. in Banco Regis, 1683.  

Roe versus Sir Thomas Clargis.  
IN a Writ of Error, 
Papist is actionable. Raymond 482.  upon a judgement in the Common-Pleas, in an Action upon the Case, wherein the Plaintiff declared, That the King had made him one of his Privy Council in Ireland, and that he was a, Deputy Lieutenant of the County of Middlesex, and had served in several Parliaments for the Burrow of Christ-Church in Hampshire; and that the King having summoned a Parliament to meet at Westminster, he did stand to be a Member of that Burrow, and that the Defendant Roe did then speak these words of him, Viz. He (meaning the Plaintiff) is a Papist. Upon a Trial there was a Verdict and a judgement for the Plaintiff.  
This Case was argued by Sir Francis Winnington for the Plaintiff in the Errors, and by Mr. Roger North for the Defendant.  
The Questions were these.  
1. Whether the words abstracted from the Offices set forth in this Declaration were actionable or not?  
2. Whether they are actionable as joined to those Capacities?  
The Council for the Plaintiff in the Errors, held the Negative in both Points.  
1. The word Papist is not defined either by the Common Law, or the Statutes of this Realm; for from the first of the Queen to the 25 Car. 2. it is not to be found what a Papist is.  
There are several Statutes between those times which provide against the jurisdiction of the Pope, and which inflict particular Punishments upon committing Offences therein prohibited, but none of those Laws give any definition of a Papist.  
If by a Papist is meant him who embraces the Doctrine of the Pope; it was punishable before the Reformation to be of a contrary Opinion: Now in the vulgar acceptation of the word, a man may hold the same Opinion with the Church of Rome, and yet not profess the, Popish Religion, so as to bring himself in danger of any of the Penalties in these Laws.  
There was never yet an Indictment against a person for being a Papist, but many have been indicted upon the breach of those Laws made against Recusants, by which they incurred the Penalties thereby appointed.  
In Michaelmas 27 H. 8. 
27 H. 8. 14. B.  an Action on the Case was brought in the Common-Pleas, for calling of the Plaintiff Heretic, and Willoughby the King's Sergeant argued, That the Action would not lie, because the word did import a Spiritual Matter, of which the Temporal Courts had no knowledge; and of that Opinion were the Chief Justice Fitzherbert and Justice Shelley: The same may be said in this Case, that the word Papist relates to something which is Spiritual, of which this Court hath no cognizance.  
Words which are actionable must immediately injure the person of whom they are spoken, either in his Profession, or bring him in danger of some Punishment, 
Hob. 8.  as to call an (Attorney Bribing Knave, which are adjectively spoken, yet 'tis an Injury done to him in his Profession.  
It was said at the Trial in the Common-Pleas, That 'tis actionable to call a Man Papist at this time, though it might not be so at another time. This seems to be a very vain assertion, for though the Times may alter, the Law is still the same.  
It would be a very great inconvenience, if Men should be deterred by Actions to call another Man a Papist, for this would be an encouragement to Popery, and a check upon the Protestant Religion, to punish the Professors thereof, for saying a Man is a Papist, who is really so both in his judgement and Profession.  
But admitting the word to be actionable, 
Not actionable to call a man Papist. Cro. Eliz. 191.  'tis not so before Conviction, for 'tis very improperly used, and of no signification or discredit before that time.  
2. These words are not actionable as coupled with his Offices, because he hath alleged no particular damage or Loss, and his Offices are only Honorary, and of no Profit, and therefore he could receive no Damage by speaking these words, if true, when they in no sort relate to his Offices, and are too remote to be applied to them.  
1. 
E contra.  The words are actionable in themselves, for they scandalise the Plaintiff in his Reputation, and may be a means to bring him to corporal Punishment; for by several Acts of Parliament many Punishments are inflicted upon Popish Recusants, which is the same thing with a Papist; they are disabled from holding any Office or Employment in the Kingdom, they are not to come into the King's presence, or within five Miles of the City of London, and the calling of him Papist subjects him to the danger of being Indicted for a Traitor, for the words are Synonimous.  
When H. 8. took upon him the Supremacy which the Pope had unlawfully Usurped, there were certain Papists in those days who called themselves Roman Catholics, that they might be distinguished from those who bore Allegiance to their lawful King; which general appellation was afterwards changed into the word Papist, so that both signify the same thing.  
The Objection that though Time's change, the Law is still the same, may receive this Answer, That when the force of words is changed with the Times, those words shall be actionable now, which were not so at another time. As for Example: the proper and genuine signification of the word Knave is a Servant, but now the Times have altered the sense of that word, and made it to be a term of Reproach; so that 'tis actionable to call an Attorney Knave, who is but a Servant to his Client.  
1. Then as to the Objection that the word Papist is not defined in our Law. There is a Statute which disables a Man from having any Office whatsoever who shall affirm the King to be a Papist, 
13 Car. 2. cap. 1.  that is, a person who endeavours to introduce Popery.  
2. But if the word Papist is not actionable of itself, yet as coupled with his Offices 'tis otherwise, and the Plaintiff may well maintain this Action. And of that Opinion was all the Court: So the judgement was affirmed.   

Malloon versus Fitzgerald.  
ERror of a judgement in Ireland, 
Where an Estate Tail shall not be determined for want of notice of a Proviso to determine it.  for Lands in the County of Waterford; the Case upon the special Verdict was this.  
John Fitzgerald was seized in Fee of the Lands in question, who had Issue Katherine his only Daughter: He by Lease and Release made a Settlement of those Lands upon the Earl of Ossory and other trusties therein named, and their Heirs, to the use of himself for Life, and after his Decease to the use of his Daughter Katherine in Tail, Provided that she Married with the consent of the said Earl and the trusties, or the major part of them, or their Heirs some worthy person of the Family and Name of Fitzgerald, or who should take upon him that Name immediately after the Marriage; but if not, than the said Earl should appoint and raise a Portion out of the said Lands for the Maintenance of the said Katherine, with a Remainder to Laetitia in Tail.  
John Fitzgerald died, his Daughter being then but two years old. She afterwards at the Age of fourteen had Notice of this Settlement, but not by the Direction of the trusties. That on the 20th of March, in the 16th year of her Age, she Married with the Plaintiff, Edward Villiers Esq; without the consent of the trusties, or the major part of them; and that her Husband Mr. Villiers did not take upon him the Name of Fitzgerald after the said Marriage. That Laetitia the Aunt was married to Franklyn, who likewise did not take upon him the Name of Fitzgerald.  
1. The Questions were, Whether the Estate limited to Katherine be forfeited, without Notice given to her of the Settlement, by the trusties themselves?  
2. Whether her Estate be not determined by her marrying Mr. Villiers without their consent?  
And it was argued, That the Estate Tail was determined.  
And first as to the point of Notice; 'tis not necessary to be given to the Daughter, because the Father had not made it in the Settlement. He might dispose of his Estate at his pleasure, and having made particular Limitations of it, there is no room now for the Law to interpose, to supply the defect of Notice in the Deed. And to this purpose the Mayor of London 's Case was cited, which was, That  
George Monox Devised certain Houses to his Executors in Trust, and their Heirs, 
Cro Car. 576. Idem Jones 452.  upon condition to pay money to several Charitable uses, which if not performed, than he devised them over to his Heir in Tail, upon the same Conditions, and if not performed by him, then to the 
* The Devise to him was void, because it was a possibility upon a possibility.  Mayor and Commonalty of London. The Trusts were not performed by the first Devisees. A Stranger entered and levied a Fine with Proclamations, and five Years passed. Then the Mayor of London brought his Action, supposing he had a right of Entry, for the non performance of the Trusts, but was barred by the Fine, although it was argued for him, that he had not notice of the Devise or breach of the Trust till after the Fine levied; which shows that Notice was not necessary, for if it had been so when his Title accrued, he could not have been barred by the Fine.  
As Katherine the Daughter takes notice what Estate she hath in the Land, so as to pursue a proper Remedy to recover it, so she ought to take notice of the Limitations in the Settlement, and hath the same means to acquaint herself with the one as with the other; and the same likewise as her Aunt had to know the Remainder.  
Suppose a Promise is made to indemnify another from all Bonds which he should enter into for a third person, 
2 Cro. 432. Hob. 51. Jones 207. Pop. 164.  and then an Action is brought against him, wherein the Plaintiff declared that he was bound accordingly, and not saved harmless, but doth not show that he gave notice of his being bound, yet the Plaintiff shall recover.  
As to the Case of a Copyholder having three Sons who surrendered to the use of his Will, 
2 Cro. 56.  and then devised to his middle Son in Fee, upon condition to pay Legacies to his Sisters at full age, which were not paid. Now tho' it was adjudged that his Estate was not determined upon the non-performance of this Condition, without an actual demand and denial, and that he was not bound to take notice of the full age of his Sisters; yet this is not an Authority which can any wise prevail in this Case, because 'tis a 
* If the Devise had been to the eldest Son, than it had been a Limitation annexed to his Estate, and not a Condition, because if it had been a Condition, it would have descended upon the Heir, who could not be sued for the breach. 1 Ventr. 199. Rep. Canc. 140. Sid. Poph. 104.  Condition to pay Legacies, which is a thing in its nature not to be paid without a demand, which implies notice.  
In all Cases where Conditions are annexed to Estates to pay Money, there notice is necessary; but where Estates are limited upon the performance of collateral acts, 'tis not necessary: And this has been held the constant difference.  
So is Fry and Porter 's Case, which was this. The Earl of Newport had two Daughters, and he devised Newport- House to the Daughter of his eldest Daughter in Tail, which she had by the Earl of Banbury, Provided, and upon condition that she marry with the consent of her Mother and two other trusties, or the major part of them, if not, or if she should die without Issue, than he devised the said House to George Porter in Fee, who was the Son of his youngest Daughter, and who had married one Thomas Porter, without her Father's consent.  
The Lady Ann Knowles, the first Devisee married Fry, without the consent of her Grandmother or trusties, and it was adjudged against her upon point of Notice, that it was not necessary, because her Grandfather had not appointed any person to give notice; he might have imposed any Terms or Conditions upon his own Estate, and all Parties concerned had the same means to inform themselves of such Conditions.  
The third Resolution in Frances Case, 
8 Co.  comes nearest to this now in question, it was in Replevin, the Defendant avowed the taking Damage Fesant. The Plaintiff pleaded in Bar to the Avowry, that R. Frances was seized in Fee of the place where, etc. and devised it to John (who was his eldest Son) for sixty years, if he so long lived, Remainder to Thomas for Life, and that John made a Lease to the Plaintiff for a year. The Defendant replied, that after the Devise R. Frances made a Feoffment in Fee of the same Lands amongst others, to the use of himself for Life. Then as to the other Lands to divers Uses contained in the Deed; but as to those Lands in which the Distress was taken, to the same Uses as in the Will, in which Conveyance there was this Priviso, That if John should disturb his Executors in the quiet Enjoyment, etc. or if he shall not suffer them to carry away the Goods in his House, than the Uses limited to him should be void: He did hinder the Executors to carry away the Goods, yet it was adjudged that he should keep his Estate, because being a Stranger to the Feoffment, he shall not lose it without notice of the Proviso.  
But in answer to that Case, notice was not the principal matter of that judgement, it turned upon a point in Pleading, for the Avowant had not showed any special act of disturbance, and a bare denial without doing any more was held to be no breach of the Condition.  
Some other Authorities may be cited to prove notice necessary, 
Green's Case, 6 Co. 24.  as where Tenant for Life of a Manor to which an Advowson was appendent did in the year 1594. present Durston, who neglecting to read the Articles was deprived nine years afterwards by the Ordinary at the Suit of the Patron who presented him, who also died two years after the Deprivation; then the Queen presented by Lapse, whose Presentee was inducted, and six years afterwards Durston died, after whose death he in Remainder presented Green; now though the Patron was a Party to the Suit of Deprivation, and thereby had sufficient notice that the Church was vacant, yet it was adjudged that a Lapse should not incur but only after notice given by the Ordinary himself, and not by any other person whatsoever.  
But this Case may receive this Answer, viz. That notice had not been necessary at Law, but it was provided by a particular Act of Parliament, 
13 Eliz. ca 12.  that no Title by Lapse shall accrue upon any deprivation, but after six months' notice thereof given by the Ordinary himself to the Patron.  
'Tis true the Law is very tender in divesting the Rights of the Subject; but where an Estate is created by the Act of the Party, and restrained by particular limitations without any appointment of notice, there the Law will not add notice and make it necessary, because the person who made such a disposition of his Estate might have given it upon what conditions he pleased.  
Therefore it may seem hard that this Estate should be determined by the neglect or omission of the trusties to give notice of this Proviso; but 'tis apparent that it was the intent of the Father it should be so; for by this Limitation the Estate is bound in the Hands of an Infant; the reason is, because there is a Privity between an Heir and an Ancestor, and therefore the Heir is bound to take notice of such Conditions which his Ancestor hath imposed on the Estate.  
2. This Estate is determined by the Marriage of the Daughter with Mr. Villiers, because there is an express Limitation in the Deed, for that very purpose she is enjoined to marry a Fitzgerald, or one who should take upon him that name, which is still more extensive, and she having neglected to do the one, and her Husband having refused to do the other, the Aunt in Remainder shall take advantage of this Non-performance.  
And 'tis this Remainder over which makes it a Limitation; 
1 Ventr. 202. Owen 112. Goldsb. 152. Lit. Sect. 723.  for if it had been a Condition then the intent of the Father had been utterly defeated; for none but the Heir at Law can enter for the breach of a Condition, and such was Katherine in this Case.  
The Proviso in this Deed depends upon another Sentence immediately going before, 
2 Co. 70.  to which it hath reference, and then by the express resolution in Cromwel's Case 'tis a Limitation or Qualification of the Estate, and not a Condition, which Estate is now determined without Entry or Claim.  
It was argued that in this Case three things are to be considered: 
E contra.   
1. The Nature of the Proviso.  
2. That Notice is absolutely necessary.  
3. That the Notice given was not sufficient, being not such as is required by Law.  
As to the 1st. The very nature of this Proviso is condemned by the Civil Law, and because it works the destruction of Estates it hath never been favoured at the Common Law.  
All Conditions to restrain Marriage generally are held void by both Laws, so likewise are such which restrain people from marrying without the consent of particular persons; because they may impose such hard terms before they give their consent, that may hinder the Marriage itself, and therefore a bare request of such, without their subsequent assent, has been always allowed to preserve the Estate.  
2. And which was the principal Point, Notice in this Case is absolutely necessary both by the intent of the Father, and by the construction of the Law.  
There are three things of which the Law makes an equal Interpretation, viz. Uses, Wills and Acts of Parliament, in which, if the intention of the Parties and of the Law makers can be discerned, the Cases which severally fall under the direction of either shall be governed by the intention without respect to the disagreeing words, nay sometimes the Law will supply the defect of words themselves.  
The Books are full of authorities, where Constructions have been made of Acts of Parliament according to the intent of the Makers, and not according to the Letter of the Law.  
As in Eyston and Stud's Case in the Commentaries, 
Ploughed. Com. 2 pt. 463.  where the Husband and Wife levied a Fine of the Lands of the Wife, and declared the Uses to their Heirs in Tail, the Remainder to the Heirs of the Wife, they had Issue, and the Husband died; the Widow married a second Husband, and he and his Wife join in a second Fine, and declared the Uses thereof to themselves for Life, the Remainder to the Husband and his Heirs for sixty years, the Remainder in Tail to their Issue, the Remainder to the Heirs of the Wife; the Issue of the first Husband entered supposing the Estate had been forfeited by the Statute of H. 7. 
11 H. 7. c. 20.  which Enacts, That if a Woman hath an Estate in Dower or in Tail jointly with her Husband, or to herself of the Inheritance or Purchase of him, and she doth either sole or with another Husband discontinue, it shall be void, and he in the Remainder may enter.  
Now this Case was directly within the words of the Statute, for the Woman had an Estate Tail in possession jointly with her first Husband which she had discontinued by joining in the Fine with her second Husband; but yet it was adjudged no Forfeiture, because it was not within the intent of the Statute to restrain Women to dispose of their own Estates, but only such as came from the Husband.  
So here Uses are in the nature of private Laws, and must be governed by the like intention of the Parties; now 'tis not to be supposed that the Father did intent to disinherit his only Daughter and Heir without notice of this Settlement, therefore though he had not appointed any person in particular to give her notice, yet it must of necessity be presumed that his intention was, that she should have the Estate unless she had refused upon notice to comply with those Conditions imposed upon her.  
Now the Daughter being Heir at Law and so having a good Title by descent, if there be any Conveyance made by her Ancestor to defeat that Title, and to which she is a Stranger, she ought by the Rules of Law and Reason to have notice of it, and so is the express Resolution in Frances' Case, where the Devise and the Feoffment were both made to the Heir at Law: And the reason why in Fry and Porter's Case notice was not held necessary was, because the Devise was to a Grandaughter, who was not Heir at Law; for the Earl of Newport had three Sons then living, and therefore the Parties whom it concerned had the same means to inform themselves upon what Conditions they were to have the Estate.  
3. The notice here given was not sufficient; for as the Ordinary himself in Green's Case ought to have given the Patron notice of the Deprivation before a Lapse should incur, so the trusties here ought to give the Daughter notice of this Proviso before she shall lose her Estate for Non-performance of the Conditions on which she should take it, especially since the notice she had of this Proviso was not certain; for 'tis said she had notice not to marry without the consent of the trusties, but 'tis not showed who they are, or how she should apply herself to them.  
Besides there is something in this Proviso which the finding in the Verdict will not supply, for it may be literally true that the Daughter married without the consent of the trusties, and yet no breach of the Condition, because the Proviso is to restrain her from marrying without the consent of them or their Heirs; now it was not found that the Feoffees were then living, and if they were dead their Consent cannot be required, and she might have the consent of their Heirs.  
Mr. Franklyn, who was the Husband of Laetitia the Aunt in Remainder, hath likewise forfeited that Estate which he hath, or may have, in right of his Wife (if she had any right) by not taking upon him the name of Fitzgerald; for if the Father would have disinherited his Daughter for Non-performance of this Proviso a fortiori, he shall be intended to disinherit his Sister for making frustrate his desire in the settlement of his Estate.  
In Easter-Term following judgement was given, That the Estate Tail was not determined for want of notice according to the resolution in Frances' Case.   

Hinton versus Roffey.  
AN Action of Debt was brought against the Defendant, 
In pleading the Statute of Usury the Agreement and the Sum taken must be set out. 12 Car. 2. c. 13.  who pleaded the Statute of Usury, but did not show any particular Agreement, only in general that he was indebted to the Plaintiff in a Sum not exceeding 180 l. neither did he seth forth when the Interest of the Money did commence, and on what day it became due: And upon a Demurrer it was objected, that this Plea was too general, because the Defendant ought to show in particular what the Sum was in which he was indebted, and how much the Plaintiff took above 6 l. per Cent. for if the certainty thereof did not appear, there could be no Fact applied to it.  
But on the other side it was alleged that it was not material to show the certain Sum which the Plaintiff took above 6 l. 
E contra.  per Cent. and therefore not necessary to set forth the particular Agreement between them; for having pleaded and made a substantial Averment to bring his Case within it, 'tis well enough without showing how much he took above six in the hundred. And this Case was compared to Debt against an Administrator, 
Moon versus Andrews. Hob. 133.  who pleaded in Bar a judgement, etc. and that he had fully administered, and had not Assets praeterquam bona, etc. non attingen. to 5 l. and upon Demurrer this was held a good Plea; for though in strictness of Pleading the Defendant ought to have showed the certain value of the Goods, and not to have said non attingen. to 5 l. yet the substance sufficiently appears that he had not more than 5 l. to satisfy a Debt of an 100 l. for which that Action was brought.  
Jefferies Chief justice and the Court gave judgement for the Plaintiff, because the Defendant ought to have set forth the Agreement, and to apply it to the Sum in the Declaration.   

Smith versus Goodier.  
IN Ejectment for the Manor of Heythorpe: 
Attornment must be proved where an Ejectment is brought for a Manor, parcel in Rent and Services, etc.  Upon Not-guilty pleaded there was a Trial at Bar by an Oxfordshire Iury.  
The Title of the Lessor of the Plaintiff was, That Edmund Goodier Esquire was seized in Fee of the said Manor, part in Demesnes, some part in Leases for years with Rent reserved, and some part in Services, and being so seized made a Feoffment in Fee to Sir John Robinson and Sir William Rider, and their Heirs in Trust for Sir Robert Masham: This Deed was dated in 1647. and the consideration was 5000 l. paid to Goodier; there was a Letter of Attorney of the same date with the Deed and Livery and Seisin endorsed.  
Sergeant Maynard, who was of Council for the Defendant, put the Plaintiff to prove an Attornment of the Tenants; for having declared for a Manor, 
Lit. Sect. 553. 1 Roll. Abr. 293.  parcel in Rents and Services, those would not pass without an Attornment; and of this Opinion was the whole Court, but the Plaintiff would not prove an Attornment.  
The Defendant made a Title under the Marriage Settlement of the said Goodier, who in 17 Jacobi married Elizabeth Mees, and then he settled the said Manor upon himself for life, and upon his Issue in Tail Male, and that the Defendant was the Heir in Tail.  
But on the other side it was insisted that this Settlement was fraudulent against the Purchasor, 
Evidence of a Fraudulent Settlement.  and that it could not be thought otherwise, because both the Original and Counterpart were found in Mr. Goodiers Study after his death; and because he had made Oath before a Master in Chancery, that there was no incumberance upon the Estate, which Affidavit was produced in Court, but not suffered to be read but as a Note or Letter, unless the Plaintiff would produce a Witness to swear that he was present when the Oath was taken before the Master.  
And an Objection was made to the Settlement itself, which recited, That whereas a Marriage was intended to be had between the said Edmund Goodier and Elizabeth Mees, now in consideration thereof and of a Portion he conveyed the said Manor to the Feoffees, to the use of himself for life, and after his decease, to the use of the said Elizabeth for life, but doth not say, from and after the Solemnisation of the said Marriage; so that if she had not married Mr. Goodier, yet after his decease she would have enjoyed the Estate for life. Upon the whole matter the jury found for the Defendant.   

Dominus Rex versus Coney and Obrian.  
THE Defendants were convicted for the Murder of Mr. 
Murder was pardoned by the name Felonica interfectio, and held good. 10 E. 3. c. 3. 13 R. 2. c. 1.  Tyrrwhite and Mr. Forster in a Duel, and now pleaded their Pardon, in which there was a Clause Non obstante the Statute of Ed. 3. which appoints him that hath a Pardon of Felony to find Sureties for his Good Behaviour before it shall be allowed; and another Non obstante to the Statute of R. 2. which enacts, that if the Offence be not specified in the Pardon it shall not be allowed.  
Now the Word Murdrum was not in this Pardon, the Offence was expressed by these general Words Felonica interfectione; and whether it did extend to pardon Murder was the Question.  
Mr. Astry, the Clerk of the Crown, informed the Court that one Alexander Montgomery of Eglington pleaded the like Pardon for Murder, but it was held insufficient, and the Court gave him time to get his Pardon amended, which was done likewise in this Case.  
The Defendants came again on another day, and Council being allowed to plead for them, insisted that the Pardon was good, and that the Murder was sufficiently pardoned by these Words, that it is in the power of the King to pardon by general Words, and his intent did plainly appear to pardon the Defendants.  
That the murder of a person is rightly expressed by felonious kill, though not so properly as by the word Murdrum itself, the omission of which word will not make the Pardon void.  
And to prove this he cited the Sheriff of Norfolk's Case, 
2 R. 3. 7. a.  who was indebted to the King during the time he was Sheriff, and was pardoned by the Name of J. W. Esquire (who was the same person) de omnibus debitis & computis', etc. Afterwards he was charged in the Exchequer for 100 l. where he pleaded this Pardon, and it was held good, though he was not named Sheriff, and so not pardoned by the name of his Office; yet the King's intention appearing in his Charter, and having pardoned him by his right Name, that was sufficient, and in that Case the King himself was concerned in point of interest.  
The Books all agree, 
More 752. Lucas' Case, 8 Co. 18. 3 Inst. 234.  that before the Statute of R. 2. the King might pardon Murder by the word Felony; now this Prerogative being incident to the Crown and inseparable from the person of the King was not designed to be wholly restrained by that Act; for the Parliament only intended that by specifying the Offence in the Pardon the King should be rightly informed of the nature of it, and when he understands it to be Murder he would not grant a Pardon.  
But admitting his power to be restrained by that Statute, 
Stamf. 101.  yet a Non obstante is a dispensation of it, and therefore this Pardon ought to be allowed.  
The Pardon was held good by the whole Court; And Jefferies the Chief Justice, said, that he had proposed this Case to all the Judges of England, 
Sid. 366.  and they were all of the same Opinion, and that he remembered Dudley's Case, where a Pardon in general words was allowed.    

DE Term. Sancti Hill. Anno 35 Car. II. in Banco Regis, 1683/4.  

Brazen versus Dean.  
A Covenant upon a Charter Party for the Freight of a Ship. 
A thing lawful to be done, when the party did covenant to do it, and afterwards prohibited, the Covenant is binding.  The Defendant pleaded that the Ship was loaded with French Goods prohibited by Law to be imported; and upon Demurrer Judgement was given for the Plaintiff; for the Court were all of Opinion, That if the thing to be done was lawful at the time when the Defendant did enter into the Covenant, though it was afterwards prohibited by Act of Parliament, yet the Covenant is binding.   

Barnes versus Edgard.  
TRespass for breaking his Close and impounding of his Cattle: 
Where Damages are under 40 s. the Plaintiff must have ordinary Costs.  Upon Not Guilty pleaded the Plaintiff had a Verdict, but Damages under 40 s. Whereupon Mr. Livesay, the Secondary, refused to tar full Costs, alleging it to be within the Statute of 22 & 23 Car. 2. by which 'tis Enacted, 
22 & 23 Car. 2. cap. 9  That in all Actions of Trespass, Assault and Battery, and other personal Actions wherein the Judge shall not certify upon the back of the Record, that a Battery was proved, or the Freehold or Title of the Land chief in question, if the Jury find the Damages under 40 s. the Plaintiff shall recover no more Costs than Damages.  
Mr. Pollexfen moved for Costs, alleging that this Act doth not extend to all trespasses, but only to such where the Freehold of the Land is in question. If the Action had been for a Trespass in breaking his Close, and Damages given under 40 s. there might not have been full Costs; but here is another Count for impounding the Cattle, of which the Defendant is found guilty, and therefore must have his Costs.  
The like Case was adjudged in this Court in Hillary Term last, 
Smith versus Batterton. Raym. 487. Jones 232.  which was Trespass for breaking and flinging down Stalls in the Market place: The Plaintiff had a Verdict and 2 d. damages, and upon a debate whether he should have full Costs, the Court were of Opinion, that it was not within that Statute, because the Title could not come in question upon the destruction of a Chattel. In the principal Case the Plaintiff had ordinary Costs.    

DE Termino Paschae, Anno 36 Car. II. in Banco Regis, 1684.  

Marsh versus Cutler.  
THE Plaintiff obtained a judgement in an Hundred Court for 58 s. and 4 d. 
If Debt be brought upon a Specialty for part of the Sum, the Plaintiff must show how the other is discharged. 2 Cro. 498, 499, 529, 530.  and brought an Action of Debt upon that judgement in this Court for 58 s. only, and did not show that the 4 d. was discharged, and upon Nultiel Record pleaded, and a Demurrer to that Plea, the Declaration was held to be naught for that very reason; for if a Debt upon a Specialty be demanded, the Declaration must be for the whole Sum; if for less, you must show how the other was satisfied.   

The Earl of Macklefield's Case.  
THE Plaintiff brought an Action upon the Statute de Scandalis Magnatum against Sir Thomas Grosvenor, 
Special Bail denied in a Scandalum Magnatum.  for that he being Foreman of the Grand jury in Cheshire spoke these Words of the Plaintiff, viz. That he was a tedious Man, and a Promoter of Sedition and tedious Addresses.  
The Plaintiff desired that the Defendant might put in Special Bail, but the Court would not grant it, and said it was a discretionary thing and not to be demanded of right: It was denied to the Duke of Norfolk, unless Oath made of the words spoken, and therefore the Court ordered Common Bail to be filled.   

Holloway's Case.  
HE was taken at Nevis in the West-Indies and brought over hither, and now appeared in Custody at the Bar being outlawed for High-Treason in the late Conspiracy.  
Sir Samuel Astry Clerk of the Crown read the Indictment upon which he was outlawed, and the King by his Attorney General consented that the Outlawry should be reversed (which could not have been done without such consent) and that he might come to his Trial; but he having nothing to allege in his defence, other than that he had made an ingenuous Confession to the King, and hoped that he might deserve Mercy, the Court made a Rule for his Execution to be on Wednesday following, and did not pronounce any Sentence against him, and he was executed accordingly.   

Dominus Rex versus Barnes, & al'.  
THE Defendant Barnes and others were excommunicated for not coming to their Parish Churches, who pleaded the Statute of 5 Eliz. 
5 Eliz. c. 23.  which inflicts pecuniary Penalties for not appearing upon the Capias, but enacts, That if the excommunicate person have not a sufficient addition according to the Statute of 1 H. 
1 H. 5. c. 5.  5. or if in the Significavit it be not contained that the Excommunication proceeds upon several causes in that Statute mentioned, and amongst the rest, for refusing to come to Divine Service, he shall not incur the Penalties.  
Now Mr. Pollexfen made these Objections.  
1. The Defendant was excommunicated for not coming to his Parish Church, which is not required by this Statute; for if he doth not tefuse to hear Divine Service in any Church the Penalties are saved.  
2. The Statute of Additions requires that the Condition and Dwelling place of the Defendant shall be inserted, which was not done in this Case, for they are excommunicated by the Names of A. B. Mercator, B. C. Scissor ' & E. F. de Parochia, etc. which last Addition of the Parish shall refer to him only last mentioned, and not to all the rest; and so it was always ruled in Indictments.  
Attorney General contra.  
The Statute of 5 Eliz. is grounded upon that of 1 of the Queen, which enjoins every person to resort to his Parish Church, or (upon  thereof) to some other, or to forfeit 12 d. every Sunday and Holy day, to be levied by the Churchwardens there for the use of the Poor.  
Now though the Parish is not named in this Act, yet the Law must be interpreted, as it was then.  
2. The word Parish goes to all, so 'tis in Informations for Riots. And by Astry, Clerk of the Crown, 'tis always so in Significavits: Tamen quaere.  
Curia. If the Defendant had pleaded below or here that he had heard Divine Service in any other Church, though not in his own Parish, the Penalties should not have went out, but being now incurred there is no remedy, and the word Parish goes to all preceding.   

Prodgers versus Frazier.  
IN Trespass, The Defendant pleaded, 
The Grant of the Custody of an Idiot passeth an Interest to the Executor of the Grantee.  that before the time of the Trespass supposed to be committed, Bridget Dennis was seized in Fee of the Lands in question, who by a Writ de Indeota inquirendo was found to be an Idiot not having any lucid intervals per spacium octo annorum, etc. by virtue whereof the King was entitled, who granted the Custody to Sir Alexander Frazier, who died, and that the Defendant Mary Frazier was his Executrix.  
The Plaintiff replied and confessed the Ideocy, but that the King granted the Custody of the Idiot to the Plaintiff: And upon this Replication the Defendant demurred.  
In this Case it was agreed by the Council on both sides, that the King by his Prerogative hath the sole interest in him of granting the Estate of an Idiot to whom he pleaseth without any account, but 'tis otherwise in case of a Lunatic; for there the Grantee shall have nothing to his own use, but must put in Security to account to the Lunatic, if ever he comes to be capable, or else to his Executors or Administrators, Vide Frances's Case in Moor fol. 4.  
But the Questions that did arise in this Case were:  
1. That there was not sufficient Title found for the King; for by the Inquisition the Idiot was found to be so per spatium octo annorum, etc. which is incertain, because before that time she might have lucida intervalla, and then she cannot be an Idiot without being naturally so, therefore the jury ought to have found her an Idiot a nativitate, for that is the only matter which vests an interest in the King.  
But it was answered and agreed by the Court, that the finding her to be an Idiot was sufficient without the addition of any other words, and therefore per spacium octo annorum shall be surplusage; for in this Case Words are not so much to be regarded as the reason of the Law, which doth not allow of Ideocy otherwise than a nativitate.  
But supposing a seeming incertainty in this Office found, yet it being said generally, that she was an Idiot, the subsequent words shall not hurt, because the general finding shall be taken in that sense, which is most for the advantage of the King.  
As for Example, 
Dyer 155. b. 161. b. 306. b.  It was found by Office that a person died seized of two Manors, and that he held one of the Queen by Knight's Service generally, and the other of a Mesne Lord in Chivalry which is the same Tenure; now it was held that the first general finding shall be intended Knights Service in Capite because it was most for the King's benefit, that he might thereby be entitled to the Wardship of the Heir, who was found to be under Age.  
2. Whether the Grant of the Custody of an Idiot will pass any Interest to the Executor of the Grantee, because such a Grant carries a Trust with it, and the King may have some knowledge and consideration of the Grantee, but not of his Executor.  
To which it was answered, that here was an interest coupled with a Trust, as in the Case of Wardship formerly, which always went to the Executor of the Grantee, and which was of greater consideration in the Law than the feeding or clothing of an Idiot, and of that Opinion was the Court, that the King had a good Title to dispose of both the Ward and the Idiot, one till he was of Age, and the other during his Ideocy.  
judgement for the Defendant.    

DE Term. Sanctae Trin. Anno 36 Car. II. in Banco Regis, 1684.  

Reeves versus Winnington.  
THE Testator was a Citizen and a Freeman of London, 
A Devise of all his Estate passed a Fee.  and being seized in Fee of a Mesuage, etc. and likewise possessed of a considerable personal Estate made his Will, in which there was this Clause, viz.  
I hear that John Reeves is enquiring after my Death, but I am resolved to give him nothing, but what his Father hath given him by Will. I give all my Estate to my Wife, etc.  
The Question was, Whether by these words the Devisee had an Estate for Life or in Fee in the Mesuage?  
It was argued that she had only an Estate for life, because the Words (All my Estate) cannot be construed to pass a Fee, for it doth not appear what Estate was intended; and Words in a Will, which go to disinherit an Heir, must be plain and apparent.  
A Devise was in these Words, viz. 
Sid. 191. Bowman versus Milbank.  I give all to my Mother, all to my Mother, and it was adjudged that a Fee did not pass, which is as strong a Case as this; for by the word (All) it must be intended All that was in his power to give, which is as comprehensive as if he had said All my Estate.  
'Tis true, 
Kerman and Johnson. Styles 281. 1 Rol. Abr. 834. Cro. Car. 447.  it hath been adjudged that where a Man devised his whole Estate to his Wife, paying his Debts and Legacies, that the word Estate there passed a Fee, because it was for the benefit of the Creditors, there being not personal Assets sufficient to pay all the Debts.  
But that is not found in this Case, therefore the Word Estate being doubtful, and which will admit of a double construction, shall not be intended to pass a Fee.  
Mr. 
E contra.  Pollexfen contra. The first part of this Sentence consists in negative words, and those which are subsequent explain the intention of the Testator, viz. That John Reeves should take nothing by the Will.  
The Word Estate doth comprehend the whole in which the Owner hath either an Interest or Property, like a Release of all Actions, which is a good discharge as well of real as personal Actions.  
In common understanding it carries an interest in the Land, and then 'tis the same as if he had devised all his Fee-simple Estate.  
In the Case of Bowman and Milbank it was adjudged that a Fee-simple did not pass by the Particle All, because it was a Relative Word and had no Substantive joined with it, and therefore it might have been intended All his Cattle, All his Goods, or All his personal Estate, for which incertainty it was held void; yet justice Twisden in that Case said, that it was adjudged, that if a Man promise to give half his Estate to his Daughter in Marriage, that the Lands as well as the Goods are included.  
The Testator devised all his Tenant-right Estate held of such a Manor, 
3 Keb. 245. Mod. Rep. 100  and this being found specially, the Question was, Whether any more passed than an Estate for Life, because he did not mention what Estate he intended; but it was held that the Devisee had a Fee-simple, because the Words were as comprehensive, as if he had devised all his Inheritance, and by these Words a Fee-simple would pass.  
Curia. It plainly appears, that the Testator intended nothing for John Reeves therefore he can take nothing by this Will, and that the Devisee hath an Estate in Fee-simple, for the Words (All my Estate) are sufficient to pass the same.   

Rex versus Sir Thomas Armstrong.  
Saturday, June 14th.  
THE Defendant was outlawed for High-Treason, and being taken at Leyden in Holland was brought into England, and being now at the Bar he desired that he might have leave of the Court to reverse the Outlawry, and he tried by virtue of the Stature of Ed. 6. which Enacts, 
5 & 6 E. 6. cap. 11.  That if the Party within one year after the Outlawry or Judgement thereupon shall yield himself to the Chief Justice of England, and offer to traverse the Indictment upon which he was outlawed, he shall be admitted to such Traverse, and being acquitted shall be discharged of the Outlawry.  
He alleged, that it was not a year since he was outlawed, and therefore desired the benefit of this Law.  
But it was denied, because he had not rendered himself according to the Statute, but was apprehended and brought before the Chief justice; Whereupon a Rule was made for his Execution at Tyburn, which was done accordingly.    

DE Term. Sancti Mich. Anno 36 Car. II. in Banco Regis, 1684.  

Hebblethwaite versus Palms. Mich. 36 Car. II. in B. R. Rot. 448.  
AN Action on the Case was brought in the Common-Pleas, 
Possession is a sufficient cause to maintain an Action against a wrong doer.  for diverting of a Watercourse. The Declaration was, That the Defendant Primo Augusti, etc.  & malitiose, did break down an ancient Dam upon the River Darwent, by which he did divert magnam partem aquae ab antiquo & solitu cursu erga molendinum ipsius quer. etc. ad dampnum, etc.  
The Defendant pleaded, that before the said Breach made, he was seized in Fee of an ancient Mill, and of six Acres of Land adjoining, upon which the said Dam was erected, time out of mind, to turn the Water to his said Mill, which Dam was always repaired and maintained by the Defendant, and the Tenants of the said Land; that his Mill was casually burnt, and he not intending to Rebuild it, suffered the Dam to be broken down, and converted the Timber to his own use, being upon his own Soil, prout ei bene licuit, etc.  
The Plaintiff replied, that by the breaking of the Dam the Water was diverted from his Mill, etc.  
The Defendant rejoined, and justified his Plea, and Traversed that the Mill of the Plaintiff was an ancient Mill.  
And upon a Demurrer to this rejoinder, judgement was given for the Plaintiff, and a Writ of Error now brought to reverse that judgement: and for the Defendant in the Action, it was argued.  
1. That the Declaration is not good, because the Plaintiff had not set forth that his Mill was an ancient Mill.  
2. Because he had not entitled himself to the Watercourse.  
3. That the Plea was good in Bar to this Action, because the Defendant had sufficiently justified having a Right to the Land upon which the Dam was erected, and always repaired it.  
As to the first Point, it hath been the constant course for many years in such Actions, to set forth the Antiquity of the thing, either in express terms, or in words which amount to it.  
In 8 Eliz. such an Action was brought, 
Dyer 248. B.  Quod defendens divertit multum aquae cursum per levationem & constructionem Waerae etc. per quod multum aquae quae ad molendinum (of the Plaintiff) currere consuevit e contra recurrit.  
Which word (consuevit) doth imply, that it was an ancient Mill, for otherwise the Water could not be accustomed to run to it.  
Anno 25 Eliz. the like Action was brought, 
1 Leon. 273. Russel versus Handford.  wherein the Plaintiff declared, Quod cum molendinum quoddam ab antiquo fuit erectum, whereof he was seized, and the Defendant erected a new Mill per quod cursus aquae pred. coarctatus fuit.  
And eighteen years afterwards was Lutterell 's Case in this Court, 
4 Co. 86.  wherein the Plaintiff shown that he was seized of two old and ruinous Fulling Mills, and that time out of Mind, magna pars aquae cujusdam rivoli did run from a certain place to the said Mills; and that during all that time there had been a certain Bank to keep the current of the said Water within its bounds, etc. That the Plaintiff did pull down those old Mills and erected two new Mills, and the Defendant digged down the Bank, etc.  
The like Action happened 14 Car. I. 
Cro. Car. 499. Palm. 290.  it was for diverting an ancient Watercourse, Qui currere consuevisset & debuisset to the Plaintiffs Mill.  
In all which Cases, 
1 Roll. Abr. 107.  tho' there are various ways of declaring, yet they all show that the constant course was to allege that the Mills were ancient; for 'tis that which entitles the Party to his Action.  
'Tis for this reason also, that if two Men have contiguous Houses, and one stops the other's Lights, if they are not ancient, an Action will not lie for stopping of them up.  
There may be some seeming difference between a Right to a Watercourse, and to Lights in a Window; for no Man can prescribe to Light Quatenus such, because 'tis of common Right to all Men, and cannot be claimed but as affixed to a particular thing or purpose.  
A Watercourse may be claimed to several purposes, but Water is of as universal use and benefit to Mankind as Light; and therefore no particular Man hath a Right to either, but as belonging to an ancient House, or ruunning to an ancient Mill, or for some other ancient Use.  
Anno 15 Car. 
Cro. Car. 575. Sands versus Trefusis.  I. The Plaintiff Sands declared, that he was seized in Fee of a Mill, and had a Watercourse running through the Defendants Lands to the said Mill, and that he stopped it up: There was a Demurrer to this Declaration, and the same Objection as now was then taken to it, (viz.) that he had not showed that it was an ancient Mill. And though the Court seemed to overrule that Objection, yet no judgement was given.  
The Case of Sly and Mordant was there cited (which is Reported by Mr. 
1 Leon. 247. id. 1 Rol. Abr. 104.  Leonard,) and is this, viz. That the Plaintiff was seized in Fee of certain Lands, etc. and the Defendant had stopped a Watercourse, by which his Land was drowned; it was adjudged that the Action would lie for this Injury; but that is no Authority to support this Declaration.  
2. The Plaintiff hath not entitled himself to this Watercourse, either by Prescription, or that the Water debuit vel consuevit currere to his Mill, for so is the Pleading in Lutterell 's Case, and in all the other Cases before cited.  
3. Therefore the Plea in Bar is good, the Defendant having sufficiently justified his Right, and the Plaintiff having not Prescribed to it, here can be no Trespass done, and so concluded that judgement ought to be reversed.  
This Case depends upon the Declaration; 
Ex parte Quer.  for the Plea in Bar is only argumentative, 'tis no direct answer to it, and the Replication and rejoinder are not material.  
The Plaintiff hath a good cause of Action, for it cannot be denied, but where an injury is done to another, and Damages ensue, 'tis sufficient to maintain an Action of Trespass, or upon the Case.  
'Tis plain, that an Injury was done to the Plaintiff, and the Damage is as manifest, by diverting of the Watercourse, and the loss of his Mill; and the Fact is laid to be  & malitiose.  
The Defendant gives no reason why he injured him, but only that he had no use of the Water, because his Mill was burnt.  
This is an Action brought by the Plaintiff upon his Possession against a wrong doer, 
Roll. 339, 394. Palm 290.  in which it is not necessary to be so particular, as where one prescribes for a Right.  
A Man may have a Watercourse 
* Bracton lib. 4. cap. 32.  by Grant as well as by Prescription, and in such case be need not set forth any particular use of the Water, as that it ought to run to his Mill; neither is it absolutely necessary to mention the Mill, for that is only to inform the Court of the Damages.  
In the Printed Entries there are many Forms of Declarations, without any Prescription, 
Rast. Ent. 9 B.  or setting forth that the Mill was ancient; as where an Action was brought against the Defendant, De placito quare vi & armis stagnum molendini ipsius (the Plaintiff) fregit, and this was only upon the Possession. 
Antea.   
The Case in Dyer is a good Authority to support this Action, for 'tis as general as this, viz. for diverting a Watercourse, per Constructionem Waerae, and doth not show where it was erected, or what Title he had to it.  
So where the Action was for disturbing the Plaintiff, 
2 Cro. 43. Dent vers. Oliver. Nota, This was after Verdict.  in collecting of Toll, and doth not show what Title he had to it, either by Prescription or Grant; but declared only that he was seized in Fee of a Manor and Fair, and held good: And it was the Opinion of my Lord Hobert, That a Declaration for breaking down of a Bank generally includentem aquam, 
Hob. 193. Biccot versus Ward.  running to the Plaintiffs Mill, was good.  
The Authorities cited on the other side, do rather maintain this way of Pleading, than the contrary, for those Cases are wherein the Plaintiff declared, that the Water currere consuevit & debuisset to the Plaintiffs Mill, time out of mind, 
Cro. Car. 499.  which words are of the same signification as if he had showed it to be an ancient Mill; and that agrees in substance with this Case, for the Water cannot be diverted ab antiquo & solito cursu, if the Mill was not ancient.  
The word solet implies Antiquity: 
Reg. 153.  The Writ De secta admolendinum is quam ad illud facere debet & solet: And it was the Opinion of a 
* Justice Doderidge in Surry and Piggots Case, Pop. 171.27 Assize placito 8. Br. Prescription 49. Rast. Entr. 441 Tit. Nuisance.  learned judge, that the words currere consuevit & solebat did supply a Prescription or Custom.  
Thus it was in an Assize of Nuisance, wherein the Plaintiff set forth, that he had a Fountain of Water currentem usque ad rotam molendini, etc. and that the Defendant divertit cursum aquae and this was held good.  
The Cases of stopping up of Lights and diverting of Watercourses are not parallel; the Prescription to Lights must be ratione loci; and therefore if a Man will erect a new House, and a Stranger will stop the Lights; 'tis an injury done, and the Action may be maintained upon the Possession.  
Lutterel 's Case was grounded upon the Possession; for upon the Plaintiff Cottell 's own showing the Prescription was gone, because he set forth, that he had pulled down the old Mills, and that the Defendant Lutterel diverted the Water from running to those Mills which the Plaintiff newly built.  
All which prove that a Prescription goes to the Right, but a possession is sufficient to support an Action against a Tort-fesor.  
Lastly, 
Slackman vers. West. Palmer 387. 2 Cro. 673.  in the Case of a Common or a Rent, which cannot pass without Deed, if the Plaintiff shows a Que Estate he must produce the Deed by which it was granted; but where he prescribes for a Way, he may set forth his Estate without showing how he came by it, because 'tis but a Conveyance to the Action, which is grounded upon the disturbance done to the Possession.  
Cur. The word solet implies Antiquity, and will amount to a Prescription; and solitus cursus aquae running to a Mill, makes the Mill to be ancient; for if it be newly erected there cannot be solitus cursus aquae towards that Mill: For which Reasons the judgement in the Original Action was affirmed in Hillary- Term, Primo Willielmi: But the Chief justice was of Opinion, that if the Cause had been tried upon such a Oeclaration, that the Plaintiff ought to prove his Prescription, or else he must be Nonsuit.   

Anonymus.  
ONE was Indicted for drinking of an Health to the Pious Memory of Stephen College, who was Executed at Oxford for High Treason. He was Fined 1000 l. and had Sentence to stand in the Pillory, and was ordered to find Sureties for his good Behaviour.   

Rex versus Rosewel.  
THE Defendant was a Nonconformist Minister, and Indicted for High-Treason, in Preaching of these words, viz. Why do the People (innuendo the People of England) make a flocking to the King (innuendo Carolum Secundum,) under pretence of curing the King's Evil, which the King cannot do; but we are the Priests and Prophets to whom they ought to flock, who by our Prayers can heal them.  
We have had two Wicked Kings now together (innuendo Carolum Primum, & Carolum Secundum) who have suffered Popery to be introduced under their Noses, whom I can liken to none but wicked Jeroboam, and if they (innuendo, the People, etc.) would stand to their Principles, I make no doubt but to COnquer our Enemies, (innuendo, the King and all his Loyal Subjects) with Ram's Horns, broken Pitchers, and a Stone in a Sling, as in the time of old.  
Upon this Indictment he was arraigned, and pleaded Not Guilty, and was Tried at Bar, and found Guilty of High Treason upon the Evidence of two Women. And the Court having assigned Mr. Wallop, Mr. Pollexfen, and Mr. Bampfield to be his Council; they moved in Arrest of judgement.  
First, That the Words discharged of the Innuendoes, if taken separate, or altogether, have no tendency to Treason. The first Paragraph doth not import any Crime; and to say that we have had two wicked Kings, may be a Misdemeanour, but 'tis not Treason, either by intendment of the Death of the King, or by levying War against him.  
The Crime seems to consist in the next Words, which are (if they would stand to their Principles, etc.) This seems to stir up the People to Rebellion, but as they are placed in the Indictment, they will not admit of such a Construction, neither as they have reference to the words precedent, or as they stand by themselves.  
The words which go before are, viz. We have had two wicked Kings together. 'Tis not expressed what Kings, or when they Reigned, which is very uncertain (Et si ipsi ad fundamentalia sua starent) which word ipsi is relative, and must refer ad proximum antecedens, and then it must be ipsi Reges) which is the proper and natural sense of the words.  
But now if the Innuendoes must be inserted, 
4 Co. 17.  it must be under some Authority of Law, either to design the person or the thing, which was not certain before, that the intention of the Party speaking, may be more easily collected; and this is the most proper Office of an Innuendo.  
It will not change the meaning of the words, 
Hob. 45. 2 Cro. 126.  for that is to make them still more incertain.  
Now most of the Innuendoes in this Indictment are naught, because they do not ascertain the subject matter.  
First, by the word People (innuendo the People of England) may be as well intended any other People, because there was no previous Discourse of the People of England.  
Then follow these words, We have had two wicked Kings now together, (innuendo King Charles the First and Second) which may be as well intended of King Ethelred and Alfred, because the words denote a time past, and therefore cannot possibly intent the King, of whom there was no precedent Discourse. And the Rule is, De dubiis & generalibus benignior Sententia recipienda est.  
Besides, those words are insensible, and indeed impossible, for we cannot have two wicked Kings together, it ought to be successively.  
Then to say, we shall Conquer our Enemies, cannot be intended the Enemies of the King, because the word Enemies is of a large sense; for Man, by reason of his Sins and Infirmities hath many Enemies, and possibly such might be intended.  
If therefore it be doubtful what Enemies were meant, if it shall not be in the power of a Clerk, by an innuendo to make Words of another sense than what they will naturally bear, nor to help where they are insensible, as in this Case: If there was no precedent Discourse either of Kings, People, or Enemies, which must be proved by the Evidence, then is this Indictment naught, and therefore judgement ought to be arrested.  
Mr. Attorney and Solicitor contra.  
'Tis laid in this Indictment, that the words were spoken to stir up Rebellion, and to depose the King, and 'tis so found by the Verdict of twelve Men.  
That which aggravates the offence is, That it was spoken in a public Assembly to the People, which must be intended the People of England, for to such the Defendant Preached, and to them he declared the power given unto him by God, to heal them by Prayer: Then he tells them that their King is wicked, and having insinuated this Doctrine into their Minds, he than bids them stand to their Principles in opposing and subduing wicked Kings.  
'Tis objected that there ought to have been a precedent Discourse of the King, but the Precedents are otherwise.  
In 33 H. 8. Rot. 17. There was an Indictment against the Lord Grey, for words spoken against the King, without setting forth any precedent Discourse of him.  
So was my Lord Cobham 's Case in 12 Jac. for that he proditory dixit & pro palavit haec verba, viz. It will never be well for England, until the King and his Cubs are killed, without an Avernient that the words were spoken de Rege.  
And in William 's Case, 
2 Roll Rep. 88  Reported by my Lord Rolls, who was Indicted for High Treason, for writing two Books, in which were many Traitorous Assertions, but no Averment of any previous Discourse concerning the King, all these Indictments were thus, viz. Dixit such words de Domino Rege.  
Therefore the Indictment is good in form if the words therein contained amount to Treason; now they do import Treason or not, if they do import it, then 'tis unnecessary to aver that they were spoken de Rege, because it cannot be intended to be Treason against any other King.  
If a Man should say that he would go to Whitehal and kill the King; 'tis not necessary to aver any precedent Discourse de Rege.  
In Actions on the Case for Words, there must be an Averment of the person, because many men are of the same Name; but in Indictments the form will govern the Case.  
Several Traitors have suffered Death in such Cases as this at Bar, and many learned Men in all Ages have attended this Court, and this Objection was never made till now; and therefore the Precedents being without this Averment de Rege, where the overt Act is by words, judgement was prayed against the Prisoner.  
Curia. Words may be an overt Act; but then they must be so certain and positive, as plainly to denote the intention of the speaker.  
If a Man should tell another that he would drive the King out of England; there needs no averment that such words were spoken de Rege, because they tend immediately to depose the King; but if he had said that he would go to Whitehal and destroy his Enemies, that is not Treason without an Averment, etc. judgement was arrested.    

DE Term. Sancti Hill. Anno 36 Car. II. in Banco Regis, 1684.  

Pool versus Trumbal.  
THE Defendant was sued in the Spiritual Court for Dilapidations, 
25 Car. 2. cap. 5.  and pleaded the general Pardon by which all Offences, Contempts, Penalties, etc. were pardoned; and for this reason he prayed a Prohibition, but it was denied, because the Statute never intended to pardon any satisfaction for Damages, but only to take away Temporal Punishments.   

Dorrington versus Edwin. Mich. 36 Car. II. Rot. 277.  
SCire Facias against Pledges in a Replevin brought by Pleint, 
Sci. Fac. will lie against pledges in Replevin, by pleint.  setting forth, that John Temple did levy a Pleint in the Sheriff's Court of London, for the taking of three Bags of Money, in which Suit he found Pledges de prosequendo & de retorno habendo, if it should be awarded.  
That this Pleint was transmitted out of that Court into the Hustings, and by 
* If it had not been a Court of Record it might have been removed by Re falo. Dalt. 425. 9 Hob. 6.58. 13 Ed. 1. cap. 2. F. N. B. 74. F. Dalt. 273.  Certiorari removed into the Kings-Bench, where the Plaintiff declared as aforesaid, etc.  
Dorrington avowed the taking, etc. and Temple was Nonsuited and thereupon a return ' Habend ' was awarded to the Sheriff, who returned elongat ', etc.  
Then a Sci. Fa. was brought against the Pledges upon the Statute of Westm. 2. which provides that where Lords upon Replevins cannot obtain Justice in Inferior Courts, against their Tenants, when such Lords are attached at their Tenants Suits, they may have a Recordari to remove the Plea before the Justices, etc. and the Sheriff shall not only take Pledges of the Plaintiff to prosecute his Suit, but also to return the Cattle if a Return be awarded, etc.  
The Defendants appeared and prayed Oyer of the Certiorari, which was returned by the Mayor and Sheriffs only without the Aldermen.  
And upon a Demurrer the Question was, Whether a Scire Facias will lie against them by virtue of this Statute, they being only Pledges in Replevin brought by Pleint without Writ.  
This Case was argued by Mr. Pollexfen for the Defendants.  
And for the Defendants it was said, that they could not be charged by this Scire Facias, because the Pleint was removed by Certiorari, and thereby the Plaintiff Dorrington had lost the benefit he had against the Pledges in the Sheriffs Court.  
This Case was compared to other Actions in inferior Courts, which if removed by Habeas Corpus the Bail below are discharged of course.  
By the Common Law there were no Pledges of return ' habend. 
Dyer 246.  for before this Statute the Sheriff could not make a Replevin without the King's Writ: Now he hath power to take Pledges; but if he will make deliverance of the Goods ad querelam alicujus sine brevi, the fault is still in him; for he may 
* Dalt. 434.  compel the Party to bring a Writ, and then the Pledges will be liable, because it will appear who they are.  
And therefore it hath been adjudged, 
Cro. Car. 446.  that where a Replevin is brought by Writ the Sheriff cannot make deliverance without taking Pledges, because if the Plaintiff should recover, he hath a remedy against them by Scire Facias; but if he recover upon a Replevin brought by Pleint, 
Cro. Car. 594.  the judgement shall not be avoided by assigning the want of Pledges for Error, because in such Case the Sheriff is not by Law obliged to take Pledges.  
2. This Scire Facias is brought too soon, for there aught to go an Alias & Pluries return ' habend. before the Return of Elongata, and then, and not before, the Scire Facias is properly brought.  
The Pledges are answerable, 
E contra.  and the Scire Facias is well brought, and this grounded upon the Statute of W. 2. which directs Pledges to be taken before the delivery of the Goods: It takes notice that Replevins were sued in inferior Courts by the Tenants against their Lords, who had distrained for Rents due for Services or Customs; and that such Lords could not have justice done in those Courts, and therefore to remedy this mischief the Statute gives the Writ Recordare, etc. to remove the Pleint before the justices; and because such Tenants, after they had replevied their Cattle, did usually sell them, so that a return could not be made to the Party distraining, therefore it directs that the Sheriff shall take Pledges for returning the Beasts, if a Return should be awarded, which would be to little purpose if such Pledges were not liable upon the return of Elongar.  
Now as to the removing of the Pleint by Certiorari that makes the Case more strong in the Plaintiffs behalf, because the Record itself una cum omnibus ea tangen. is removed; but by an Habeas Corpus the person is only removed, and the Court hath thereby a jurisdiction over his Cause, which the inferior Court hath lost, because it hath lost his Person.  
2. This Scire Facias is not brought too soon, as hath been objected, for 'tis in vain to bring an Alias & Pluries after the Sheriff had returned Elongat '; 'tis like the common Case where a Scire Facias is brought against the Bail and Non est inventus is returned, after which there never was an Alias or Pluries Capias.  
And afterwards in Michaelmas-Term following judgement was given that the Pledges are liable.   

Palmer versus Allicock.  
BY the Statute of Distribution of Intestates Estates 'tis provided, 
22 & 23 Car. 2. cap. 10.  That in case there be no Wife then the Estate of the Husband dying intestate shall be distributed equally amongst the Children, and if no Child, then to the next of Kin of the Intestate in equal degree, and to those who legally represent them.  
A Man died intestate having no Wife at the time of his death, and but one Child, who was an Infant, afterwards Administration was granted of the Father's Estate durante minore aetate of the Child who died before the Age of seventeen.  
Then Administration was granted by a peculiar to the next of Kin of the Infant, and an Appeal was brought in the Arches by the next of Kin of the Father to revoke that Administration.  
In a Prohibition the Question was, Whether Administration de bonis non, etc. of the first Intestate shall be granted to the next of Kin of the Father or the Child?  
Mr. Pollexfen argued this Term for the Plaintiff in the Prohibition, viz.  
That the Statute gives a power to the Ordinary to take Bonds of such persons to whom Administration is committed, the Forms of which Bonds are expressed in the Act, and the Conditions are to make a true and perfect Inventory, and to exhibit it into the Registry.  
He hath also a power to distribute what remains after Debts, Funeral Charges and Expenses.  
Thus the Law stands now.  
Then as to the Case at the Bar three things are to be considered:  
1. If a Man dies intestate leaving two Sons and no Wife, each hath a Moiety of his personal Estate immediately vested in him, so that if one Brother should afterwards die intestate the other shall have the whole.  
2. If an Interest be vested in two, then by this Statute the like Interest is vested in one, so that if he die Intestate his Administrator shall have the Estate.  
3. If so, than the consequence will be, that in this case Administration de bonis non of the first Intestate shall go to the next of Kin of the Infant.  
By Interest is meant a Right to sue for a share after Debts paid, which Interest every person hath in a chose in action: As if a Man doth covenant with two, that they shall have such an Estate after Debts paid, an Interest vests in them by this Covenant, and if they die, it goes to their Executors, such also is the Interest of every Residuary Legatee.  
Now if any of them die before the Residue can be distributed, the Wife or Children of him so dying shall have it.  
And to make this more clear it will be necessary to consider how the Law stood before the making of this Act.  
At the Common Law neither the Wife, Child or next of Kin had any Right to a Share of the Intestates Estate, but the Ordinary was to distribute it according to his Conscience to pious Uses, and sometimes the Wife and Children might be amongst the number of those whom he appointed to receive it; but the Law entrusted him with the sole disposition of it. 
2 Inst. 399.   
Afterward by the Statute of Westm. 
13 E. 1. c. 19  2. he was bound to pay the Intestate's Debts so far as he had Assets, which at the Common Law he was not bound to do, and an Action of Debt would then, and not before, 
Pl. Com. 277. Greisbrook versus Fox.  lie against him, if he did alien the Goods and not pay the Debts.  
Then the Statute of 
* 31 E. 1. c. 11.  31 E. 1. was made, by which he was empowered to grant Admstration to the next of Kin, and most lawful Friend of the Intestate; 
1 Inst. 133. b. 2 Inst. 397. 9 Co. Hensloes' Case.  and by this Statute the person to whom Administration was committed might have an Action to recover the Intestate's Estate, for at the Common Law he had no remedy.  
But then afterwards the Statute of 21 H. 8. cap. 5. Enacts, That the Ordinary shall grant Administration to the Widow or next of Kin of the person deceased, or to both; and this was the first Law which gave any Interest to the Wife, to whom Administration being once granted the power of the Ordinary was determined, 
Hob. 83. 1 Cro. 62, 202.  and he could not repeal it at his pleasure as he might at the Common Law.  
But after the making of this Statute many mischiefs did still remain, because the Administration being once committed, the person to whom it was granted, had the whole Estate, and the rest of the Relations of the deceased were undone; and therefore if his Children were under Age, or beyond the Seas, and a Stranger had got Administration, it would have been a Bar to them.  
And thus it continued many years, the Ordinary still making distribution as he thought fit, taking only a Bond from the person to whom he granted Administration for the purposes aforesaid, and sometimes to dispose the Surplus after Debts and Legacies, as he should direct, and no Prohibition was granted to remedy these inconveniences till about the 12th year of King James the First. 
Hob. 83.   
But now by this Act a good remedy is provided against these mischiefs, and 'tis such which takes away the Causes thereof, which is, that the Administrator shall not have the whole Estate, but that a Distribution shall be made.  
The Title of the Act shows the meaning thereof to be for the better Settlement of Intestates Estates, and the Body of it shows how Distribution shall be made; so that such Bonds which were usually given by the Administrator before this Law to make Distribution, as the Ordinary should direct, are now taken away, and other Forms are prescribed; and there can be no remedy taken upon such new Bonds till the Ordinary hath appointed the Distribution, so that in effect this Act makes the Will of a person dying intestate, and tells what share his Relations shall have; and 'tis probable that the Custom of London might guide the Parliament in the making of this Law, which Custom distributes the Estate of a Freeman amongst his Wife and Children.  
This shows that an Interest is vested in them, which goes to the Administrator, the consequence whereof is very considerable, for if such Children should marry they have a Security by this Act that a Portion shall be paid; and if the Wife should take another Husband he will be entitled to her share, and this may be a means of giving credit in the World, when the certainty of their Portions are so well known and secured.  
'Tis such an Interest which is known in the Law and may be compared to that in Sir Thomas Palmer's Case, 
5 Co. 24.  who sold 1600 Cord of Wood to a Man, who assigned it to another, and afterwards the Vendor sold 2000 Cord to one Maynard to be taken at his Election, the Assignee of the first person cut 600 Cord and Maynard carried it away, thereupon an Action was brought and the Plaintiff had judgement, because the first Vendee had an Interest vested in him which he might well assign.  
This Case is a plain proof that a Man may have an Interest in a Chattel without a Property, and such an Interest which gives the person a remedy to recover, and where there is a remedy there must be a Right, for they are convertibles.  
'Tis not a new thing in the Law that a contingent Interest in the Ancestor shall survive to the Heir; 
Wood's Case, cited in Shelleys Case, 1 Co. 99  as if a Man be seized of the Manor of S. and covenants that when B. shall make a Feoffment to him of the Manor of D. then he will stand seized of the said Manor of S. to the use of the Covenantee and his Heirs, who died leaving Issue an Heir, who was then an Infant, B. made a Feoffment to the Covenantor accordingly; it was held that no Right descended to the Heir of the Covenantee, but only a possibility of an Use which might have vested in the Ancestor, and therefore the Heir shall claim it by descent.  
'Tis like a Debt to be paid at a day to come, 
Lit. Sect. 512.  which is debitum in praesenti though solvendum in futuro, and though the Obligee cannot have an Action before the day is come, yet such an Interest is vested in him that he may release it before that day, and so bar himself for ever.  
Now if this Act makes a Will it ought to be construed as such, and it cannot be denied, that if this Case had happened upon a Will the Executor of the Son would have a very good Title.  
'Tis a weak Objection to affirm that this Law was made to establish the practice of the Ecclesiastical Courts, and that 'tis only explanatory of the Statutes of Ed. 3. and H. 8. because 'tis plainly introductory of a new Law, for Distribution is now made otherwise than it was before.  
2. An Interest is vested where there is but one Child.  
For the better understanding of this Point the Clause in the Act ought to be considered, which is, viz. If there be no Wife then to be distributed amongst the Children, if no Child, then to the next of Kin of the Intestate; upon which Clause these Objections have been made.  
Object. 1. That 'tis insignificant, because the Statute of H. 8. gives the right of Administration to the Child.  
2. That Distribution cannot be made where there is but one.  
3. That this Clause ought to be construed according to the Law in the Spiritual Courts.  
Answ. Now as to the first Objection 'tis true, that before this Act the Child had a Right of Administration, but that Right was only personal; so that if he had died before he had administered his Executor or Administrator could not have it.  
Besides, many inconveniences did attend this personal Right of Administration, which are now prevented by the vesting of an Interest.  
For when the Right was personal and the Administrator gave Bond with Sureties to administer truly, and the Ordinary had appointed Distribution to be made, the Administrator was bound to perform it though not in equal degree; and if he died before the Estate was got in, it was lost for ever.  
But now by this Clause Distribution must be made equally, viz. one third part of the Surplus to the Wife, the rest by equal portions to the Children, so that what was very incertain before, and almost at the Will of the Ordinary, is now reduced to a certainty; and therefore an Interest must vest in such persons to whom such equal Distributions of filial Portions are given.  
2. Object. That Distribution cannot be made where there is but one Child.  
Answ. This also is true in propriety of Speech and taking the Word distribute in the strict sense.  
But this was never intended by the Statute as may plainly appear upon the construction of the whole; for the Word Children doth comprehend a Child and more, and the form of the Bond directed by this Statute is that the Administrator shall deliver the Goods to such person and persons, etc. which shows that one is comprehended, and therefore Distribuere in this Case is no more than Tribuere, and must be so taken.  
The Parliament never intended that Distribution should not be made where there is but one Child, as may be easily collected from the reason of the thing and the inconveniences which would ensue.  
1st. If a Man should die leaving a Wife and one Child, the Wife would be entitled to one third and the Child to the other two thirds of the personal Estate; now if the Child shall have two thirds being comprehended under the Word Children; what reason can be given why he should not have the whole where there is no Wife, which he could not have if the Word Children did not comprehend Child in this Case.  
2dly, If a Man hath a personal Estate to the value of 2000 l. and dieth leaving Issue three Sons, but hath in his life time made provision for the second Son to the value of 1000 l. the eldest Son dies intestate shall the youngest be totally excluded from the remaining 1000 l. because there is none left to have distribution, his second Brother being preferred in the life time of his Father by an equal portion with what remains.  
3dly, If the Father hath a Son married, and two Brothers, and dies intestate, now if his Estate should not be vested in the Son, then if he should also die intestate, his Wife could have nothing, but it would go to the Uncles; and this would be a very hard construction of this Law to carry the Estate to the Uncles and their Executors from the Son and his Administrator.  
But there is a Case which proves that a Child is intended by the Word Children, 
8 Co 96.  'tis between Amner and Lodington cited in Matthew Manning's Case, which was, A Man being possessed of a Term for years devised it to his Wife for life, and after her death to her Children unpreferred, and made her Executrix and died, she married again and had but one Daughter unpreferred, and after the death of the Mother this Executory Devise was held good to the Daughter, though it was by the Name of Children, and she enjoyed the Term.  
3. Object. That this Act should be construed according to the Spiritual Law.  
Answ. That cannot be, for all Statutes ought to be expounded according to the Rules of the Common Law and not according to their Law; for they have no Law which gives power to sue, nor to distribute to the Wife or next of Kin, but the usual course was for the Ordinary to dispose of Intestates Goods to pious uses.  
Then admitting this to be an Interest vested, the consequence will be that it shall go to the Administrator, and then Administration must be granted where the Estate legally aught to go.  
The Administration of the Husband to the Goods of the Wife is grounded upon this reason, 
4 Co. 51. Ognel's Case. 1 Cro. 106.  because the Marriage is quasi a gift to him in Law.  
It was not the only mischief before this Law that the Administrator run away with the whole Estate; for if a Man died intestate leaving but one Son then beyond Sea, and Administration was granted to a Stranger, he who had right could not appeal after fourteen days, which the Son could not do at that distance, and so by this means a wrongful Administrator was entitled to the whole, and he whose right it was had no remedy to recover at his return.  
But now this inconvenience is likewise redressed by the Statute of Distributions, for when the Son returns he may put the Bond in suit; and for these reasons it was prayed that the Prohibition might stand.  
Mr. 
E contra.  Williams argued for the Defendant in Easter-Term 2 Jacobi; the substance of whose Argument was, that though the Plaintiff had gotten Administration, yet no Interest was thereby vested in him, but that the Appeal was proper; and for this he cited the Case of Beamond and Long, 
Cro. Car. 208.  which was Baron and Feme Administratrix of her former Husband recover in Debt; the Feme died, the surviving Husband brought a Scire Facias to have Execution; and upon a Demurrer all the Court, but Hid, agreed that the Scire Facias would not lie for the Husband alone, because it was a debt demanded by the Administratrix in altar droit.  
This Statute hath not wholly altered the Common Law in this matter; it only limits the Practice of Ecclesiastical Courts and makes provision for particular purposes, viz. That Distribution shall be made to the Wife and Children, and their Children, which is so far introductory of a new Law, but no farther; so that the Right of Administration is as it was before, and therefore must be granted to the next of Kin of the Father.  
This Court hath no power to grant a Prohibition in such a Case, and if it should, 'tis the first which ever was granted of this kind, for it ought not to be determined here, but in an Ecclesiastical Court, which hath an original jurisdiction of this Cause, and the Appeal is in proprio loco.  
To which Mr. Pollexfen answered, that the contrary was very plain, for here have been many Prohibitions granted even upon this very Act; and the Question now before the Court is not concerning the manner of Distribution, but the Right of Administration, whether any Interest is vested in the Son or not? 'Tis true, the Estate in Law goes to the Administrator, but the Interest and Right to sue for and to recover the Estate goes to the Son; so that if he should die before he is in actual possession, his Administrator shall have it to pay Debts and to distribute, etc.  
In the Case of a Will, if a Man should devise his Estate to his Wife and Children after Debts and Legacies paid, an Interest vests in those Children, which doth not differ from the Case at the Bar, but that in the one Case the Testator makes the Will, and in the other 'tis made by an Act of Parliament.  
Some Inconveniencies have been already mentioned if the Law should be otherwise taken, but there be many more; for if no Interest should vest in the Child till actual Distribution he could neither be trusted for his Education or Necessaries whilst living, and no body would bury him if he should happen to die before the year and a day, for the Funeral Charges would be lost.  
It will likewise occasion delays in Administrators to make Distribution in hopes of gain, neither will any honest man take an Administration upon himself, because he can neither pay Money safely, or take a Release, for if the Infant die before distribution it is void.  
But notwithstanding these Reasons the Court gave judgement in Michaelmas-Term following, That a Consultation should go, the Chief justice being absent.    

DE Termino Paschae, Anno 1 Jac. II. in Banco Regis, 1685.  

Coram Georgio Jefferies Mil ' Capital ' Justice '.  
Francisco Wythyns Mil ', Justiciariis.  
Richardo Holloway Mil ', Justiciariis.  
Thoma Walcot Mil ', Justiciariis.   

Rex versus Marsh, and others.  
JAmes Marsh, 
Information for a Forgery.  John W. and John L. were indicted upon the Coroners Inquest for the Murder of R. D. at H. in Kent; and upon this Indictment they were arraigned and tried at the Bar this Term.  
The Fact upon the Evidence appeared to be, that the Prisoners were Customhouse Officers, who suspecting that some Wool would be transported, went to the Seaside in the Night time, where there happened an Afray, and the Prisoner Marsh was twice knocked down, and recovering himself shot the deceased; they were all acquitted of the Murder; and then upon complaint made that Marsh was only found guilty upon the Coroners Enquest, two of the said jury were now sworn in Court, who deposed, that they upon the Coroners Enquest found the Indictment against Marsh alone, which Indictment was in English; but that one J.D. who was then Mayor of H. and who by virtue of that Office was also Coroner, took the Indictment and told the jury it must be turned into Latin, which was done, and he then inserted the Names of the two other Prisoners now at the Bar, whereupon the said Mr. D. was now called, and he appearing was bound in a Recognizance to answer this matter; and the two Prisoners, who were acquitted, were likewise bound to prosecute him, and the jury Men were ordered to put their Affidavit in writing, and swear it in Court.  
An Information was afterwards exhibited against Mr. D. which was tried at the Bar in Trinity-Term following, and he was found guilty; but having spoke with the Prosecutor in the long Vacation he was only fined 20 Nobles in Michaelmas-Term.   

Robert's versus Pain.  
IN a Prohibition to the Court of Arches, the Case was: 
Prohibition not granted where a temporal loss may ensue.  The Plaintiff was presented by the Mayor and Aldermen of Bristol to the Parish Church of Christ-Church in the said City, and the Defendant libelled against him because he was not 23 years of Age when made Deacon, nor 24 when he entered into the Orders of a Priest; 
13 Eliz. c. 12.  and the Statute requires that none shall be made a Minister or admitted to preach being under that Age.  
The reason now alleged for a Prohibition was, because this Matter was triable at Law, and not in the Spiritual Court, because if true, a Temporal Loss, viz, Deprivation might follow.  
But the Court denied the Prohibition, and compared this Case to that of a Drunkard or ill Liver, who are usually punished in the Ecclesiastical Courts, though a temporal loss may ensue; and if Prohibitions should be granted in all Cases where Deprivation is the consequence of the Crime, it would very much lessen the Practice of those Courts.   

David Burgh 's Case.  
THE Parishioners of St. Leonard Foster Lane, gave this Man (who had a Wife and five Children) 5 l. in Money to remove into another Parish, upon Condition that if he returned in 40 days that he should repay the Money; he removed accordingly and stayed away by the space of 40 days; the Parish to which he removed obtained an Order upon an Appeal for his settlement in the last Parish, where he was lawfully an Inhabitant; which Order being removed into this Court and the Matter appearing thus upon Affidavits, they declared their Opinion only upon the Order to remove, viz. That the Man had gained a Settlement in the Parish to which he removed; for he being an Inhabitant there for so long time, as was required by Law to make a Settlement, and not disturbed by the Officers, they were remiss in their Duty, and the Court would not help their negligence.    

DE Term. Sanctae Trin. Anno 1 Jac. II. in Banco Regis, 1685.  

Dominus Rex versus Dangerfield.  
THE Defendant was convicted of publishing a Libel wherein he had accused the King (when Duke of York) that he had hired him to kill the late King Charles, etc. And on Friday, June 20. He was brought to the Bar where he received this Sentence, viz.  
That he should pay the Fine of 500 l. That he should stand twice in the Pillory, and go about the Hall with a Paper in his Har signifying his Crime; That on Thursday next he should be whipped from Algate to Newgate; and on Saturday following from Newgate to Tyburn, which Sentence was executed accordingly; and as he was returning in a Coach on Saturday from Tyburn one Mr. Robert Frances a Barrister of Greys-Inn asked him in a jeering manner, whether he had run his Heat that day? who replied again to him in scurrilous words; whereupon Mr. Frances run him into the Eye with a small Cane which he had then in his Hand, of which wound the said Mr. Dangerfield died on the Monday following.  
Mr. Frances was indicted for this Murder, and upon Not-guilty pleaded was tried at the Old-Bayly, and found guilty, and executed at Tyburn on Friday, July the 24th. in the same year.   

Mr. Baxter's Case.  
HE was a Nonconformist Minister, against whom an Information was exhibited for writing of a Book which he Entitled A Paraphrase upon the New Testament; and the Crime alleged against him in the said Information was, That he intending to bring the Protestant Religion into contempt, and likewise the Bishops, (innuendo the Bishops of England) did publish the Libel in which was contained such words, etc. setting forth the words. He was convicted: And Mr. Williams moved in arrest of judgement, that the words in the Information and the Bishops therein mentioned were misapplied to the Protestant Religion and the Bishops of England by such Innuendoes, which could not support this Charge against the Defendant.  
That the Distringas and Habeas Corpora were inter nos & Richardum Baxter, which could not be, because the Information was exhibited in the name of the Attorney General.  
But the Court overruled these Exceptions, and said, that by the word Bishops in this Information no other could be reasonably intended but the English Bishops; thereupon the Court fined him 500 l. and ordered him to give Security for his Good Behaviour for seven years.   

Procter versus Burdet.  
AN Action of Covenant was brought by an Apprentice setting forth the Indenture, by which the Defendant, 
In Covenant the Breach was generally assigned, and held good.  his Master, had covenanted to find and allow the Plaintiff Meat, Drink, Lodging and all other things necessary during such a time; and the Breach was as general as the Covenant, viz. That he did not find hind him Meat, Drink, Lodging, & alia necessaria.  
The Plaintiff had judgement by Nil dicit; and upon a Writ of Enquity brought entire Damages were given against the Defendant: And in a Writ of Error upon this judgement the Error assigned was, that the Breach was too general, and that entire Damages were given amongst other things for alia necessaria, and doth not say for what; 
2 Cro. 436. Astel versus Mills.  and a Case was cited in the Point in Trinity-Term 16 Jacobi, where the judgement was reversed for this very reason.  
The Council contra argued that that which is required in an Action of Covenant is, that there may be such a certainty, as the Defendant may plead a former Recovery in Barr if he be sued again; and therefore one need not be so particular in assigning of the Breach upon a Covenant as upon a Bond; for in a Bond for performance of Covenants where there is a Covenant to repiar; if it be put in suit, 'tis not sufficient to say, That the House is out of repair, but you must show how; but in a Covenant 'tis enough to say, That it was out of repair.  
If in this Case the Plaintiff had showed what necessaries were not provided for him, 
Kelway 85.  it would have made the Record too long, and therefore 'tis sufficient for him to say, that the Defendant did not find alia necessaria.  
That Case in 2 Cro. 
2 Cro. 304, 367. 1 Rol. Rep. 173. 3 Bulst. 31. 2 Saund. 373.  has since been adjudged not to be Law, for many contrary judgements have weakened the Authority of it, viz. That the Breach may be assigned as general as the Covenant; as where a Man covenanted that he had a lawful Estate and Right to let, etc. the Breach assigned was that he had no lawful Estate and Right to let, etc. and doth not show that the Lessor had not such Right, or that he was evicted, yet it was held good.  
Curia. In a Quantum meruit they formerly set out the Matter at length, but now of late in that Action in general Words and also in Trover and Conversion pro diversis aliis bonis hath been held good, which is as general as this Case.  
There are many instances where Breaches have been generally assigned and held ill; that in Croke is so, but the later Opinions are otherwise: Affirmetur Judicium.   

Pie versus Brereton.  
A Lease was made of Tithes for three years rendering Rend at Michaelmas and Lady-day; and an Action of Debt was brought for Rend arrear for two years: Upon Nil debet pleaded the Plaintiff had a Verdict, and it was now moved in Arrest of judgement that the Declaration was too general, for the Rent being reserved at two Feasts, 
2 Cro. 668.  the Plaintiff ought to have showed at which of those Feasts it was due.  
But the Council for the Plaintiff said, That it appears by the Declaration that two years of the three were expired; so there is but one to come which makes it certain enough.  
Curia. This is helped by the Verdict, but it had not been good upon a Demurrer.    

DE Term. Sancti Mich. Anno 1 Jac. II. in Banco Regis, 1685.  
MEmorandum, That in Trinity-Vacation last died Sir Francis North, Baron of Guildford, and Lord Keeper of the Great Seal of England, at his House in Oxfordshire, being a Man of great Learning and Temperance. And Sir George Jefferies, Baron of Wem, and Chief Justice of the Kings-Bench, had the Seal delivered to him at Windsor, and was thereupon made Lord High Chancellor of England. And Sir Edward Herbert, one of the King's Council, succeeded him in the Place of Chief Justice. There died also this Vacation, Sir Thomas Walcott, one of the Justices of the Kings-Bench, and he was succeeded by Sir Robert Wright, one of the Barons of the Exchequer.  

Sir John Newton & al' versus Stubbs.  
IN an Action on the Case for Words. 
Words laid to be spoke ad tenorem & effectmu sequen ' not good.  The Plaintiffs declared that they were justices of the Peace for the County of Gloucester, etc. and that the Defendant spoke these scandalous Words of them. Viz. Sir John Newton and Mr. Meredith make use of the King's Commission to worry Men out of their Estates, & postea eodem die, etc. they spoke these words, Viz. Sir John Newton and Mr. Meredith make use of the King's Commission to worry me and Mr. Creswick out of our Estates. And afterwards these words were laid in Latin (without an Anglice) ad tenorem & effectum sequen ', etc.  
There was a Verdict for the Plaintiffs, and entire damages, and now Mr. Trindar moved in Arrest of judgement.  
1. That the words in the Declaration are laid in Latin, 
Roll. Abr. 74. pl. 2.  without an Anglice, and without an Averment that the hearers did understand Latin.  
2. 'Tis not expressly alleged, that the Defendant spoke those very words, for being laid ad tenorem & effectum sequen ', something may be omitted which may alter the sense and meaning of them; 
Cro. Eliz. 857.  and for this very reason judgement was stayed, though the Court held the words to be actionable.   

Rex versus Ayloff & al'.  
THey were Outlawed for High-Treason, 
Treason.  and on Tuesday the 27th day of October they were brought to the Bar, and a Rule of Court was made for their Execution on Friday following.  
The Chief justice said, that there was no hardship in this proceeding to a Sentence upon an Outlawry; because those Malefactors who wilfully fly from justice, and a new Crime to their former Offence, and therefore aught to have no benefit of the Law; for tho' a Man is Guilty, yet if he put himself upon his Trial, he may by his submissive Behaviour and show of Repentance, incline the King to mercy.  
In Felonies which are of a lower nature than the Crimes for which these persons are attainted, flight even for an Hour, is a forfeiture of the Goods of the Criminal; so likewise a Challenge to three juries is a defiance to justice, and if that be so, then certainly flying from it, is both despising the mercy of the King, and contemning the justice of the Nation.  
They were both Executed on Frday the 30th of October following.   

Dominus Rex versus Colson & al'.  
AN Information was exhibited against the Defendants, 
Information for a Riot not good.  setting forth, that they, with others, did riotously assemble themselves together, to divert a Watercourse, and that they set up a Bank in a certain place, by which the Water was hindered from running to an ancient Mill in so plentiful a manner as formerly, etc.  
Upon Not Guilty pleaded, it came to a Trial, and the jury found that Quoad factionem Ripae, the Defendants were Guilty, and quoad Riotum not Guilty.  
And now Mr. Williams moved in arrest of judgement, because that by this Verdict the Defendants were acquitted of the charge in the Information, which was the Riot; and as for the erecting of the Bank, an Action on the Case would lie, and the judgement was accordingly arrested.   

Mason versus Beldham. Trin. 1 Jac. Rot. 408.  
THE Plaintiff brings his Action against the Defendant, 
Quantum meruit will lie for Rent.  and sets forth, That in consideration that he would suffer the Defendant to enjoy a House and three Water-Mills, etc. he promised to pay so much yearly as they were reasonably worth; and avers that they were worth so much: And upon a Demurrer the Question was, whether this Action would lie for Rent.  
It was argued for the Defendant that it would not lie, 
Cro. Eliz. 242. 786, 859. 2 Cro. 668.  because it was a real Contract.  
'Tis true, there is a Case which seems to be otherwise; 'tis between Acton and Symonds, 
Cro. Car. 414.  which was in consideration that the Plaintiff would demise to the Defendant certain Lands for three years, at the Rent of 25 l. by the year, he promised to pay it; this was held to be a personal Promise, grounded upon a real Contract, and by the Opinion of three judges, the Action did lie, because there was an express promise alleged, which must also be proved. But justice Croke was of a contrary Opinion.  
Mr. Pollexfen contra. If a Lease be made for years, reserving a Sum in gross for Rent, and which is made certain by the Lease; in such case an Action of Debt will lie for the Rent in arrear: But if where no Sum certain is reserved, as in this Case, a Quantum meruit will lie; and no reason can be given why a Man may not have such an Action for the Rent of his Land, as well as for his Horse or Chamber: And judgement was given for the Plaintiff.   

Anonymus.  
THere was a Libel in the Spiritual Court for scandalous Words, 
Prohibition for words, where some are actionable, and others not.  Viz. She is Bitch, a Whore, an old Bawd. And a Prohibition was now prayed by Mr. Pollexfen, because some of the words were actionable at Law, and some punishable in the Spiritual Court; and therefore prayed that it might go Quoad those words which were actionable at Law.  
The Chief justice granted it, because the words were an entire Sentence, and spoken altogether at the same time, and therefore if a Prohibition should not go, it would be a double vexation.    

DE Termino Paschae, Anno 1 Jac. II. in Banco Regis, 1685.  

Earl of Yarmouth versus Darrel.  
THE Plaintiff brought an Action on the Case, 
Grant of the King of sole Printing, not good.  setting forth Letters Patents of King Charles the II. by which the Sole Printing of Blank Writs, Bonds, and Indentures were granted to him, excepting such Forms which belonged to the Customhouse, and which were formerly granted to Sir Roger L'Estrange; that this Grant was to continue for the space of 30 Years, and that the Defendant had notice thereof, and had printed 500 Blank Bonds, which he laid to his damage of the sum of 40 l.  
Upon Not Guilty pleaded, the jury found a special Verdict, the substance of which was, that the Defendant was a Stationer, and that the Company of Stationers for the space of 40 years last passed, before the granting of these Letters Patents, had constantly printed Blank Bonds; and so made a general conclusion.  
Mr. Trindar argued for the Plaintiff, and the only Question was, Whether this Patent did vest a sole Interest in the Plaintiff, exclusive to all others?  
In his Argument he insisted on these Points.  
1. That the King hath a Prerogative in Printing, and may grant it Exclusive to others.  
2. That this Prerogative extends to the Case at the Bar.  
That he hath such a Prerogative, 'tis confirmed by constant Usage, for such Grants have been made by the Kings of England ever since Printing was invented: But to instance in a few, Viz.  
The Patent for Printing of Law-Books was granted to one More, on the 19th day of January, in the 15th year of King James the I. And when that Patent was expired, another was granted to Atkyns and others, on the 15th day of November, in the 12th year of King Charles the II.  
In 23. Eliz. a Patent was granted to the Company of Stationers, for the sole Printing of Psalm-Books and Psalters, for the space of 30 years. And on the 8th of August 31 Eliz. the like Patent was granted to Christopher Barker, for Life. Another Patent to the Company of Stationers for printing of Corderius, etc. These and many more of the like nature, show what the constant usage hath been.  
Now the Statute of Monopolies doth not reach to this Case, because of the Proviso therein to exempt all such Grants of sole Printing: and by the Statute of King Charles the II. for regulating of the Press, 
14 Car. 2. cap. 33.  'tis Enacted, That no person shall Print any Copy which any other hath or shall be granted to him by Letters Patents, and whereof he hath the sole Right and Privilege to Print. And upon the breaches of these Statutes several judgements have been given.  
Between Streater and Roper in this Court; 
Mich. 24 Car. 2. Rot. 237.  'tis true, the judgement was against the Plaintiff; but upon a Writ of Error brought in Parliament that judgement was reversed.  
The same Term there was a judgement given upon a special Verdict in the Common-Pleas for the Plaintiffs, 
Hill. 35 Car. 2. B. R. Rot. 99  who were the Company of Stationers, against Seymour, for Printing of Almanacs. And they obtained the like judgement against Wright, for Printing of Psalters and Psalm-Books.  
Now to apply this to the principal Case; 'tis to be considered, that these Books for which the sole Printing was so claimed, were of a public nature and importance, relating to the good and benefit of the Subjects; and so likewise are Blank Bonds, for there may be false and vicious Impressions, to the ruin and destruction of many innocent people.  
And as a farther Argument that the King hath this Prerogative, 'tis likewise to be considered, that where no individual person can claim a Property in a thing there the King hath a Right vested in him by Law; and it cannot be pretended that any particular person hath a Right to Print those Bonds, therefore the finding that such were printed by the Company for above 40 years, is immaterial; because there being an inherent Prerogative in the King, whenever he exerts it, all other persons are bound up who were at liberty before.  
To prove which, the judgement in the Case of the East-India Company is express in point; for before that Patent the subject had liberty to Trade to those places prohibited by that Grant; but afterwards they were restrained by that Grant.  
Neither is this in the nature of a Monopoly; 
11 Co. 84.  'tis not like that of the sole Grant of making Cards, which hath been adjudged void, and with great reason, because that Grant reached to prohibit a whole Trade, and therefore differs from this Case; for the Defendant may print other Instruments or Books, and exercise his Trade in some other lawful and profitable Commodities; and so might the Merchants in the Case of the East-India Company, for they were restrained by the Patent as to particular places, but might Trade to any other part of the World.  
Neither will the Subjects in general receive any prejudice by this or such like Grants; for if the Patentees make ill use of their Privileges, tho' it cannot be properly called an Office, yet 'tis a Trust, and a Scire Facias will lie to repeal their Grants.  
It was argued by the Council for the Defendant, 
E contra.  That the Verdict having found that the Company of Stationers had used to print those Bonds for above 40 years before the making of this Grant: the Question will be, Whether they are now divested of a Right so long enjoyed?  
And as to that, 'tis not a new thing to object, That notwithstanding such Grants, yet other persons have insisted on a Right to Print, and have printed accordingly.  
Thus the sole Printing of Law-Books was granted to one Atkyns, yet the Reports of justice Jones, and my Lord Chief justice Vaughan were printed without the direction of the Patentees.  
Printing, as 'tis a manual Occupation, makes no alteration in this Case, for the King hath as great a Prerogative in Writing any thing that is of a public Nature, as he hath in Printing of it.  
Now considering Printing as an Art exclusive from the thing printed, this Patent is not good: For if a Man invent a new Art, and another should learn it before the Inventor can obtain a Patent, if afterwards granted 'tis void.  
Then consider it in relation to the thing printed, 
1 Roll. 4. 11 Co. 53. id.  which in this Case are Blank-Bonds; 'tis not a new Invention, because the Company of Stationers have printed such above 40 years, and for that reason this Patent is void; for where the Invention is not New, there Trade shall not be restrained.  
No Man can receive any prejudice by the printing of such Bonds, for they are of no Use till filled up; 'tis only a bare Manufacture of setting of so many Letters together: but filling up the Blanks makes them of another nature.  
Grants of things of less moment have been adjudged Monopolies, 
2 Rol. Abr. 215. pl. 5.  as a Patent for the sole making of all Bills, Pleas and Briefs in the Council of York; for by the same reason a like Patent might be granted to make all Declarations in the Courts of Westminster- Hall.  
Curia. The King hath a Prerogative to Grant the sole Printing to a particular person; all the Cases cited for the Plaintiff do not reach the reason of this Case; for there is a difference between things of a public Use and those which are public in their Nature; even Almanacs have been used to ill purposes, as to foretell future Events; yet they are of public Use to show the Feasts and Fasts of the Church.  
The Court inclined that the Patent was not good.   

Jackson versus Warren.  
A Motion was made in arrest of judgement, 
Amendment.  for that the day when the Assizes were to be held, and the place where, were left out of the Distringas, and so a mis-tryal: But the Court were of another Opinion, 
1 Roll. Abr. 201.  for if there had been no Distringas the Trial had been good; because they Jurata is the Warrant to try the Cause, which was right, and therefore the Distringas was ordered to be amended by the Roll.   

Dominus Rex versus Sparks.  
'TIS Enacted by the Statute of 1 Eliz. 
Where a Punishment is directed by a Statute, the Judgement must be pursuant. 1 Eliz. cap. 2.13. & 14 Car. 2. cap. 4.  That every Minister shall use the Church-Service in such Form as is mentioned in the Book of Common-Prayer, and if he shall be convicted to use any other Form, he shall forfeit one whole Years profit of all his Spiritual Promotions, and suffer six months' Imprisonment.  
And by the Statute of King Charles the II. All Ministers are to use the public Prayers, in such Order and Form as is mentioned in the Common-Prayer-Book, with such Alterations as have been made therein by the Convocation then sitting.  
The Defendant was indicted at the Quarter-Sessions in Devonshire, for using alias Preces in the Church, & alio modo, than mentioned in the said Book, and concludes contra formam Statuti: He was found Guilty, and fined 100 Marks; and upon a Writ of Error brought Mr. Polexfen and Mr. Shower argued for the Plaintiff in Error, that this Indictment was not warranted by any Law; and the Verdict shall not help in the case of an Indictment, for all the Statutes of Jeofails have left them as they were before.  
Now the Fact, as 'tis said in this Indictment, may be no offence, because to use Prayers alio modo than enjoined by the Book of Common-Prayer, may be upon an extraordinary occasion, and so no Crime.  
But if this should not be allowed, the justices of Peace have not power in their Sessions to inquire into this matter, or if they had power, they could not give such a judgement, because the punishment is directed by the Statute; and of this Opinion was the whole Court.  
The Chief justice said, that the Statute of the 23 Eliz. 
23 Eliz. cap. 1.  could have no influence upon this Case, because another Form is now enjoined by later Statutes; but admitted that Offences against that Statute were enquitable by the justices.  
The Indictment ought to have alleged that the Defendant used other Forms and Prayers instead of those enjoined, which were neglected by him; for otherwise every Parson may be indicted that useth prayers before his Sermon, other than such which are required by the Book of Common-Prayer.   

Clerk versus Hoskins.  
DEbt upon a Bond for the performance of Covenants in certain Articles of Agreement, in which it was recited, That whereas the now Defendant had found out a Mystery in colouring Stuffs, and had entered into a Partnership with the Plaintiff for the term of seven Years; he did thereupon Covenant with him, that he would not procure any person to obtain Letters Patents within that Term to exercise that Mystery alone.  
The Defendant pleaded that he did not procure any person to obtain Letters Patents, etc.  
The Plaintiff replied and assigned for breach, that the Defendant did within that term procure Letters Patents for another person to use this Mystery alone, for a certain time. Et hoc petit quod inquiratur per patriam.  
And upon a Demurrer to the Replication, these Exceptions were taken.  
1. That the Plaintiff hath not set forth what Term is contained in the Letters Patents.  
2. That he had pleaded both Record and Fact together; for the procuring is the Fact, and the Letters Patents are the Record, and then he ought not to have concluded to the Country; Prout patet per Recordum.  
To which it was answered, That the Plaintiff was a Stranger to the Term contained in the Letters Patents, and therefore could not possibly show it; but if he hath assigned a full breach, 'tis well enough.  
Then as to the other Exception, viz. the pleading of the Letters Patents here, is not matter of Record; here is a plain negative and affirmative upon which the Issue is joined, and therefore aught to conclude, & hoc petit, etc.  
Curia. There is a Covenant that the Defendant shall not procure Letters Patents to hinder the Plaintiff within the seven Years of the Partnership: Now this must be the matter upon which the breach ariseth, and not the Letters Patents; so that it had been very improper to conclude prout patet per Recordum. judgement for the Plaintiff.   

Rex versus Hethersal.  
THE Defendant was Felo de se, 
Melius inquireddum not granted but for misdemeanour of the Jury.  and the Coroners Inquest found him a Lunatic, and now Mr. Jones moved for a Melius inquirendum, but it was denied, because there was no defect in the Inquisition; but the Court told him, that if he could produce an Affidavit that the jury did not go according to their Evidence, or of any indirect Proceed of the Coroner, than they would grant it: But it was afterwards quashed, because they had omitted the year of the King.   

Friend versus Bouchier. Trin. 34 Car. 2. Rot. 920.  
EJectment upon the Demise of Henry Jones, 
What words in a Will make a general Tail.  of certain Lands in Hampshire.  
The jury found this Special Verdict following, Viz. That William Holms was seized in Fee of the Lands in question, who by his last Will, dated in the year 1633. devised it to Dorothy Hopkins for Life; Remainder to her first Son, and to the Heirs of the Body of such first Son, etc. and for default of such Issue to his Cousin W. with several Remainders over. And in default of such Issue, to Anne Jones, and to her Heirs (who was the Lessor of the Plaintiff;) That before the sealing and publishing of this Will, he made this Memorandum,  
Viz. Memorandum that my Will and Meaning is, That Dorothy Hopkins shall not alien or sell the Lands given to her from the Heirs Male of her Body lawfully to be begotten, but to remain upon default of such Issue, to W. and the Heirs Males of his Body to be begotten, according to the true intent and meaning of this my Will.  
Dorothy Hopkins had Issue Richard, who had Issue Henry, who had Issue a Daughter, now the Defendant.  
The Question was, Whether the Son of Dorothy did take an Estate Tail by this Will, to him and to the Heirs of his Body in general, or an Estate in Tail Male.  
This Case was argued in Michaelmas- Term 36 Car. II. And in the same Term a year afterwards, by Council on both sides.  
Those who argued for the Plaintiff held, that the Son had an Estate in Tail Male; and this seems plain by the intention of the Testator, that if Dorothy had Issue Daughters, they should have no benefit, for no provision is made for any such by the Will; and therefore the Daughter of her Son can have no Estate, who is more remote to the Testator.  
This is like the Case of Conveyances, 
Turnam vers. Cooper. 2 Cro. 476. Poph. 138. id. 25 Ass. pl. 14.  wherein the Habendum explains the generality of the precedent words; as if Lands be given to Husband and Wife, and to their Heirs, habendum to them and the Heirs of their Bodies, Remainder to them and the Survivor, to hold of the chief Lord, with Waranty to them and their Heirs: this is an Estate Tail, with a Feé expectant.  
So it is here, tho' the first words in the Will extend to Heirs which is general; yet in the Memorandum 'tis particular to Heirs Males, and the words Heirs and Issues are of the same signification in a Will.  
The Memorandum is a confirmation of the Will, 
Ex parte Def.  and the construction which hath been made of it, is not only inconsistent with the Rules of Law, but contrary to the intent of the Testator, and against the express words of his Will.  
Cases upon Wills are different from those which arise upon Deeds, because in Conveyances subsequent words may be explanatory of the former; but in Wills the first words of the Testator do usually guide those which follow.  
As if Land be devised for Life, 
Dyer 171 a. 1 And. 8. id. gold's. 16. Moor 593.  Remainder to F. and the Heirs Males of his Body, and if it happen that he die without Heirs (not saying Males) the Remainder over in Tail; this was held not to be a general Tail, but an Estate in Tail Male, therefore the Daughter of F. could not inherit.  
Now to construe this to be an Estate Tail Male, doth not only alter the Estate of the Sons of Dorothy, but of the Issue of W. and nothing is mentioned in this Memorandum of the Limitation over to Jones; so that the whole Will is altered by it.  
But this Memorandum cannot enlarge the Estate of Dorothy, because 'tis inconsistent with the intention of the Testator, who gave her only an Estate for Life by the Will; but if she should have an Estate Tail, she might by Fine and Recovery bar it, and so alien it contrary to his express words.  
Besides, there is no Estate limited to Dorothy by this Memorandum, and she having an express Estate for Life, devised to her by the Will, it shall never be enlarged by such doubtful words which follow.  
As where a Man had 100 Acres of Land, 
2 Leon. 226. Moor 593.  called by a particular Name, and usually occupied with a House, which House he let to S. with 40 Acres, parcel of that Land, and then devised the House and all the Lands called by that particular Name, etc. to his Wife; Adjudged she should only have the House and the 40 Acres, and that the Devise shall not be extended by implication to the other sixty Acres.  
So that to make the design of this Will and Memorandum to be consistent, the latter words must be construed only to illustrate the meaning of the Testator in the former Paragraph of the Will, and must be taken as a farther declaration of his intention, Viz. that the Heirs Males mentioned in the Memorandum, is only a description of the Persons named in the Will.  
The Law doth usually regard the intention of the Testator, and will not imply any contradictions in his Bequests.  
The Court was of Opinion that it was a plain Case; 
Judicium.  for in the Limitation 'tis clear that 'tis a general Tail; and it doth not follow that the Testator did not design any thing for his Grandaughters, because no provision was made for Daughters: For where an Estate is entailed upon the Heirs of a Man's Body, if he hath a Son and a Daughter, and the Son hath Issue a Daughter, the Estate will go to her, and not to the Aunt.  
Now this Memorandum doth not come to make any alteration in the Limitation, because it directs that the Estate shall go according to the true intent and meaning of the Will, and is rather like a Proviso than an Habendum in a Deed. And therefore judgement was given accordingly for the Defendant.    

DE Term. Sancti Mich. Anno 1 Jac. II. in Banco Regis, 1685.  

Hicks versus Gore.  
ON Tuesday the 17th day of November there was a Trial at the Bar by a  jury in Ejectment: The Case was thus:  
The Plaintiff claimed the Lands by virtue of the Statute of 4 & 5 Ph. & Mar. cap. 8. by which 'tis enacted.  
That it shall not be lawful for any person to take away any Maid or Woman Child unmarried, and within the Age of sixteen years from the Parents or Guardian in Soccage; and that if any Woman Child or Maiden being above the Age of twelve years, and under the Age of sixteen, do at any time assent or agree to such person that shall make any Contract of Matrimony (contrary to the Form of the Act) that then the next of Kin of such Woman Child or Maid to whom the Inheritance should descend, return or come after the decease of the same Woman Child or Maid, shall from the time of such Assent and Agreement have, hold and enjoy all such Lands, Tenements and Hereditaments, as the said Woman Child or Maid had in Possession, Reversion or Remainder at the time of such Assent and Agreement during the Life of such person that shall so contract Matrimony, and after the decease of such person so contracting Matrimony, that then the said Land, etc. shall descend, revert, remain and come to such person or persons as they should have done in case this Act had never been made, other than him only that so shall contract Matrimony.  
Benjamin Tibboth being seized in Fee of the Lands in question to the value of 700 l. per annum had Issue a Son and four Daughters; the Son had Issue Ruth his only Daughter, who was married to the Defendant Gore; her Father died in the time of her Grandfather, and her Mother fearing that this Daughter might be stolen from her, applies herself to my Lady Gore, and entreats her to take this Daughter into her House, which she did accordingly.  
My Lady had a Son then in France, she sent for him and married him to this Ruth, she being then under the Age of sixteen years, without the Consent of her Mother, who was her Guardian.  
The Question was whether this was a Forfeiture of her Estate during Life.  
It was proved at the Trial that the Mother had made a Bargain with the Lessor of the Plaintiff, that in case he recovered she should have 1000 l. and the Chirds of the Estate, and therefore she was not admitted to be a Witness.  
The Plaintiff could not prove any thing to make a Forfeiture, and therefore was nonsuited.  
The Chief justice said, that the Statute was made to prevent Children from being seduced from their Parents or Guardians by flattering or enticing Words, Promises or Gifts, and married in a secret way to their disparagement; but that no such thing appeared in this Case, for Dr. Hascard proved the Marriage to be at St. Clement's Church in a Canonical Hour, and that many People were present, and that the Church Doares were open whilst he married them.   

Anonymus:  
BY the Statute of 21 Jacobi 'tis Enacted, 
21 Jac. c. 23.  That no Writ to remove a Suit out of an Inferior Court shall be obeyed unless it be delivered to the Steward of the same Court before Issue or Demurrer joined, so as the Issue or Demurrer be not joined within six Weeks next after the Arrest or Appearance of the Defendant.  
In this Case Issue was joined, and the Steward refused to allow the Habeas Corpus, and the Cause was tried, but not before an Utter Barrister, as is directed by the Statute.  
Curia. The Steward ought to return the Habeas Corpus, and they having proceeded to try the Cause no Utter Barister being Steward, let an Attachment go.   

Claxton versus Swift. Hill. 1 Jac. 2. Rot. 1163.  
THE Plaintiff being a Merchant brought an Action upon a Bill of Exchange, 
If the Plaintiff recover against the Drawer of a Bill he shall not afterwards recover against any of Endorsers.  setting forth the Custom of Merchants, etc. and that London and Worcester were ancient Cities, and that there was a Custom amongst Merchants, that if any person living in Worcester draw a Bill upon another in London, and if this Bill be accepted and endorsed, the first Endorser is liable to the payment.  
That one Hughes drew a Bill of 100 l. upon Mr. Pardoe paiable to the Defendant or Order.  
Mr. Swift endorsed this Bill to Allen or Order, and Allen endorsed it to Claxton.  
The Money not being paid Claxton brings his Action against Hughes, and recovers, but did not take out Execution.  
Afterwards he sued Mr. Swift, who was the first Endorser, and he pleads the first Recovery against Hughes in bar to this Action, and avers that it was for the same Bill, and that they were the same Parties.  
To this Plea the Plaintiff demurred, and the Defendant joined in the Demurrer.  
Mr. Pollexfen argued that it was a good Bar, because the Plaintiff had his Election to bring his Action against either of the Endorsers or against the Drawer, but not against all; and that he had now determined his Election by suing the Drawer, and shall not go back again though he never have Execution; for this is not in the nature of a joint Action which may be brought against all. 'Tis true that it may he made joint or several by the Plaintiff; but when he has made his choice by suing of one he shall never sue the rest, because the Action sounds in Damages, which are uncertain before the judgement, but afterwards are made certain, & transeunt in rem judicatam, and is as effectual in Law as a Release.  
As in Trover the Defendant pleaded that at another time the Plaintiff had recovered against another person for the same Goods so much Damages, 
2 Cro. 73. Yelv. 65. Brown versus Wootton.  and had the Defendant in Execution; and upon a Demurrer this was held a good Plea; for though in that Case it was objected, that a judgement and Execution was no satisfaction unless the Money was paid, yet it was adjudged that the cause of Action being against several, for which Damages were to be recovered; and because a Sum certain was recovered against one, that is a good discharge against all the other, but 'tis otherwise in Debt, because each is liable to the entire Sum.  
Chief justice. If the Plaintiff had accepted of a Bond from the first Drawer in satisfaction of this Money, it had been a good Bar to any Action which might have been brought against the other Indorsers for the same; and as this Case is the Drawer is still liable, and if he fail in payment, the first Endorser is chargeable, because if he make Endorsement upon a bad Bill, 'tis Equity and good Conscience that the Endorsee may resort to him to make it good: But the other justices being against the Opinion of the Chief justice, judgement was given for the Defendant.   

Pawley versus Ludlow.  
DEBT upon a Bond. The Condition was, That if John Fletcher shall appear such a day coram Justitiariis apud Westm. etc. that then, etc.  
The Defendant pleaded, that after the 25th day of November, and before the day of the appearance, he did render himself to the Officer in discharge of this Bond, and to this the Plaintiff demurred.  
Darnel for the Defendant admitted that if a Scire Facias be brought against the Bail upon a Writ of Error, 
3 Bulstr. 191. 2 Cro. 402.  who plead that after the Recognizance, and before the judgement against the Principal affirmed, he rendered himself to the Marshal in discharge of his Bail, that this is not a good Plea, but that the Sureties are still liable, 
3 Jac. cap. 8.  because by the Statute they are not only liable to render his Body but to pay the Debt recovered.  
But if a judgement be had in this Court, 
1 Rol. Abr. 334. pl. 11.  and a Writ of Error brought in the Exchequer-Chamber, and pending that Writ of Error the Principal is rendered, the Bail in the Action are thereby discharged.  
It was argued on the other side, 
E contra.  that this is not the like Case of Bail upon a Writ of Error, for the Condition of a Recognizance and that of a Bond for Appearance are different in their nature; the one is barely that the Party shall appear on such a day, the other is that he shall not only appear and render his Body to Prison, but the Bail likewise do undertake to pay the Debt, if judgement should be against the Principal.  
Now where the Condition is only for an Appearance at a day if the Party render himself either before or after the day, 'tis not good.  
Chief justice. If the Party render himself to the Officer before the day of Appearance he is to see that he appear at the day, either by keeping of him in Custody or letting of him to Bail, the end of the Arrest is to have his Body here.  
If he had not been bailed than he had still remained in Custody, and the Plaintiff would have his proper remedy; but being once let to Bail, and not appearing in Court according to the Condition of the Bond, that seems to be the fault of the Defendant who had his Body before the day of Appearance.  
judgement for the Defendant.    

DE Term. Sancti Hill. Anno 1 Jac. II. in Banco Regis, 1685.  

Sergeant Hampson's Case.  
BY the Statute of Queen Elizabeth 'tis Enacted, 
5 Eliz. c. 23.  That if the person excommunicated have not a sufficient Addition, or if 'tis not contained in the Significavit that the Excommunication proceeds for some cause or contempt or of some original Matter of Heresy, refusing to have his Child baptised, to receive the Sacrament, to come to Divine Service, or Errors in Matters of Religion or Doctrine, Incontinency, Usury, Simony, Perjury in the Ecclesiastical Court, or Idolatry, he shall not incur the Penalties in the Act.  
Sergeant Hampson was excommunicated for Alimony, and now Mr. Girdler moved that he might be discharged, because none of the aforesaid Causes were contained in the Significavit.  
Curia. He may be discharged of the Forfeiture for that reason, but not of the Excommunication.   

Anonymus.  
ONE who was outlawed for the Murder of Sir Edmund Bury Godfrey now brought a Writ of Error in his Hand to the Bar, praying that it might be read and allowed.  
It was read by Mr. Astry, Clerk of the Crown.  
The Errors assigned were; viz.  
That it did not appear upon the Return of the Exigent in the first Exact ' that the Court was held pro Comitatu.  
That the Outlawry being against him and two other persons, 'tis said in the last Exact ' that Non comperuit, but doth not say, nec eorum aliquis comperuit.  
For these Reasons the Outlawry was reversed, and he held up his Hand at the Bar and pleaded Not-guilty to his Indictment, and was admitted to Bail, and afterwards he was brought to his Trial, and no Witness in behalf of the King appearing against him he was acquitted.   

The Mayor and Commonalty of Norwich versus Johnson.  
A Writ of Error was brought to reverse a judgement given for the Plaintiff in the Common-Pleas in an Action of Waste. 
Waste lies against an Executor de son tort of a Term.  The Declaration was, that the Plaintiff demised a Barn to one Took for a certain Term, by virtue whereof he was possessed, and being so possessed died; that the Defendant was his Executor, who entered and made Waste by pulling down of the said Barn.  
The Defendant pleaded that Took died intestate, and that he did not administer.  
The Plaintiff replied, that he entered as Executor of his own Wrong; and to this Plea the Defendant demurred, and the Plaintiff joined in the Demurrer.  
This Case was argued by Mr. Appleton of Lincolns-Inn for the Plaintiff, who said, That an Action of Waste would not lie against the Defendant, because the Mayor and Commonalty, etc. had a remedy by an Assize to recover the Land upon which the Barn stood, and a Trover to recover the Goods or Materials, and that such an Action would not lie against him at the Common Law, because he neither was Tenant by the Courtesy nor in Dower, against whom Waste only lay.  
So that if the Plaintiff is entitled to this Action it must be by virtue of the Statute of Gloucester; 
6 Ed. 1. c. 5.  but it will not lie against the Defendant even by that Statute, because the Action is thereby given against the Tenant by the Courtesy, in Dower, for Life or Years, and triple Damages, etc.  
But the Defendant is neither of those, and this being a penal Law, which not only gives triple damages, but likewise the Recovery of the place wasted, ought therefore not to be taken strictly, but according to Equity.  
Tenants at sufferance, or at Will, by Elegit, or Tenants by Statute Staple, 
11 H. 6. c. 5.  and also Pernors of Profits were never construed to be within this Statute, and therefore a particular Act was made to give him in Reversion an Action of Waste, where Tenant for life or years had granted over their Estates, and yet took the Profits and committed Waste.  
Then the Question will be, 
Co. Lit. 371.  what Estate this Executor de sontort hath gained by his Entry.  
And as to that he argued that he had got a Fee-simple by Disseisin, and that for this reason the Plaintiff was barred from this Action; for if the Son purchase Lands in Fee and is disseised by his Father, who maketh a Feoffment in Fee to another with Warranty and dieth, the Son is for ever barred; for though the Disseisin was not done with any intention to make such a Feoffment, 
1 Roll. Abr. 662.  yet he is bound by this Alienation.  
So where a man made a Lease for life and died, and then his Heir suffered a Recovery of the same Land without making an actual Entry, this is an absolute Disseisin, because the Lessee had an Estate for life; but if he had been Tenant at Will, it might be otherwise.  
But admitting that the Defendant is not a Disseisor, than the Plaintiffs must bring their Case to be within the Statute of Gloucester, as that he is either Tenant for life or years.  
If he is Tenant for Life, he must be so either by right or by wrong.  
He cannot be so by right, because he had no lawful Conveyance made to him of this Estate; besides 'tis quite contrary to the Pleading, which is that he entered wrongfully.  
Neither can he be so by wrong, for such particular Estates, 
6 Co. 25.  as for life or years, cannot be gained by Disseisin, and so is Heliar's Case in 6 Co.  
Then if this should be construed an Estate for years, it must be gained either by the Act of the Party or by the Act of the Law; but such an Estate cannot be gained by either of those means.  
First it cannot be gained by the Act of the Party, 
Moor 126. Kendrick versus Burges.  because an Executor de son tort cannot have any interest in a Term, and for this there is an express Authority in this Court, which was thus, viz. A Lease in Reversion for years was granted to a man who died intestate, his Wife, before she had administered, sold this Term to the Defendant, and afterwards she obtained Letters of Administration, and made a Conveyance of the same Term to the Plaintiff, and judgement was given for the last Vendee, because it was in the case of a Reversion of a Term for years, upon which no Entry could be made, and of which there could be no Executor de son tort, though it was admitted by the Court, that such an Executor might make a good sale of the Goods before Administration granted.  
Neither can any Entry or Claim make the Defendant an Executor de son tort of a Term for years, because a wrongful Entry can never gain any Estate but a Fee-simple; for 'tis not to be satisfied with any particular or certain Estate, as for life or years.  
It cannot be gained by Act of Law, because that abhors all manner of wrong.  
If it should be objected that though this Executor doth not gain any Estate for his own benefit; yet he in the Reversion may take him for a Disseisor, and it shall be in his election, either to make him so, or a Tenant for years.  
To this it may be answered, that the Defendant doth not claim by colour of any Grant; if he did, than he might be a Disseisor at the Election of him in the Reversion; and this was the very difference taken in the Case of Blunden and Baugh. 
Cro. Car. 302. 1 Roll. Abr. 661. Jones 115. Latch. 53.   
So likewise if it be objected that the Defendant is an Occupant, and therefore punishable for Waste; but the reason is not the same, because the Entry of an Occupant is lawful, and he gains an Estate for life, which is not this Case.  
An Executor de son tort is not a person taken notice of in the Law in respect to him in the Reversion, but in respect of the Creditors of the Intestate, and therefore if what he doth may be advantageous to them the Law will make a Construction upon it for their benefit; but if such a person should be within the intention or meaning of this Statute, than the natural Consequences will be: 

1. That the place wasted would be recovered.  
2. That the Plaintiff would also have triple damages.    
Both which would be a manifest means to defeat the Creditors of their Debts, for which reasons he prayed judgement for the Plaintiff in the Errors.  
It was argued by the Council on the other side, 
E contra.  That it is plain that the Defendant was Executor de son tort, for such must that person be who intermeddles with the Intestates Estate, where there is no rightful Executor or Administrator.  
Now a Man may be Executor of his own wrong of a Term for years, as appears even in that case cited out of Moor on the other side, and if so, the Defendant must be liable to this Action.  
The Statute may be expounded as well against a wrongful as a rightful Executor, 'tis plain here is a Dissesin, and the Law is now settled, that it shall be in the election of him in the Reversion to make it so.  
This Defendant would justify one wrong by another, for he confesseth that he hath committed a Disseisin, and therefore will not be answerable for committing of Waste.  
As to the Objection that an Executor de son tort is liable only in respect of Creditors, and that if he should be punished for Waste it would be an injury to them, because of the triple damages recovered against him.  
Resp. Such damages must be answered out of his own Estate; for even in the Case of a rightful Executor, if he commit Waste, 
5 Co. Poulter's Case.  he will be chargeable in a Devastavit de bonis propriis.  
This is not properly a penal, but a remedial Law, and as such may be construed according to Equity.  
'Tis true, Tenants by Elegit or by Statute are not within this Statute, because Waste by them committed is no wrong; for if they should fallen the Timber, it sinks the Debt, and the Cognizor may have a Scire Facias ad computandum.  
Curia. It would be an infinite trouble for him in the Reversion to seek his remedy for Waste done, if the Law did oblige him to stay till there was a rightful Administrator, and 'tis not to be doubted, but that there may be an Executor de son tort of a Term for years.  
This is a remedial and yet a penal Law, and therefore shall have a favourable Construction: The judgement was affirmed.   

Bridgham versus Frontee.  
DEBT upon a Bond for performance of Covenants in a Lease of a House for a certain Term of years rendering Rend, etc. And the Breach assigned was, That there was 66 l. Rent in arrear.  
The Defendant pleaded the Statute of H. 
32 H. 8. c. 16.  8. That all Leases of Dwelling-Houses or Shops made to any Stranger or Alien Artificer shall be void, and sets forth that the Defendant was a Vintner and an Alien Artificer.  
And upon a Demurrer Mr. Thompson for the Defendant said, that a Vintner was an Artificer within the meaning of the Act, which was made to prevent a mischief by Foreigners encroaching upon the Trades of the King's Subjects by which they gained their Livelihood, and therefore shall be expounded largely and beneficially for them.  
A Mercer, a Draper or Grocer are not properly Artificers, yet they are within the meaning of this Act.  
Chief justice. 
1 R. 2. cap. 9  This Statute refers to another of R. 2. Which prohibits Alien Artificers to exercise any Handycraft in England, unless as a Servant to a Subject skilful in the same Art, upon pain to forfeit his Goods; so that 'tis plain, that such who used any Art or manual Occupation were restrained from using it here to the prejudice of the King's Subjects.  
Now the Mystery of a Vintner chief consists in mingling of Wines, and that is not properly an Art, but a Cheat; so the Plaintiff had his judgement.   

Rex versus Plowright and others.  
A Distress was taken for Chimny-Mony, and the Parties distrained apply themselves to the two next justices of the Peace, before whom it did appear that Plowright let a Cottage to Hunt, which was not of the yearly value of 10 s. The Collectors of this Duty distrained upon the Landlord, which the said justices thought to be illegal, and therefore they ordered a Restitution: And a Certiorari being brought to remove the Order into this Court. Mr. Attorney prayed that it might be ●●●d.  
But it was opposed by Mr. Pollexfen for that the Statute of King Charles II. enacts, 
16 Car. 2. c. 3.  That no person inhabiting an House which hath more than two Chimneys shall be exempted from the payment of the Duty, etc. and then these Words do follow, viz. That if any question shall arise about the taking of any distress, the same shall be heard and finally determined by one or more Justices of the Peace near adjoining, etc.  
Now here was Money levied by virtue of this Act, and a Controversy did arise by reason of the Distress, and an Order was made by the justices, which according to the letter and meaning of the Act ought to be final; the intention whereof was to prevent the charge and trouble of poor Men in Suits at Law about small Matters, and therefore it gave the justice's power to determine particular Offences and Oppressions.  
Mr. Attorney contra. If the justices of Peace have power to determine, etc. that is to make them judges whether this Duty is payable or not; and so the Courts of Westminster, who are the proper judges of the Revenue of the King, who by this means will be without an Appeal, will be excluded.  
Curia. This Court may take Cognizance of this Matter as well as in Cases of Bastardy; 'tis frequent to remove those Orders into this Court though the Act says, That the two next Justices may take order as well for the punishment of the Mother, as also for the relief of the Parish where it was born, except he give Security to appear the next Quarter Sessions.  
The Statute doth not mention any Certiorari, which shows that the intention of the Lawmakers was that a Certiorari might he brought, otherwise they would have enacted, as they have done by several other Statutes that no Certiorari shall lie.  
Therefore the meaning of the Act must be, that the determination of the justices of the Peace shall be final in Matters of Fact only; as if a Collector should affirm that a person hath four Chimneys when he hath but two, or when the Goods distrained are sold under the value, and the Overplus not returned; but the Right of the Duty arising by virtue of this Act was never intended to be determined by them.  
Then the Order was filled, and Mr. Pollexfen moved that it might be quashed; for that by the Statute of 14 Car. 2. 
14 Car. 2. c. 10.  the Occupier was only chargeable and the Landlord exempted. Now by the Proviso in that Act such a Cottage as is expressed in this Order is likewise exempted, because 'tis not of greater value than 20 s. by the year, and 'tis not expressed that the person inhabiting the same hath any Lands of his own of the value of 20 s. per annum, nor any Lands or Goods to the value of 10 l.  
Now there having been several abuses made of this Law to deceive the King of this Duty, occasioned the making of this subsequent Act.  
The abuses were these, viz.  
The taking a great House and dividing it into several Tenements, and then letting them to Tenants, who by reason of their poverty might pretend to be exempted from this Duty.  
The dividing Lands from Houses, so that the King was by these Practices deceived, and therefore in such Cases the charge was laid upon the Landlord; but nothing of this appearing upon the Order it was therefore quashed.   

Brett versus Whitchot.  
IN Replevin. 
Lands not exempted from repairing of the Highways by grant of the King.  The Defendant avowed the taking of a Cup as a Fine, for a Distress towards the repairing of the Highway.  
The Plaintiff replied, and set forth a Grant from the King, by which the Lands which were chargeable to send Men for the repairing, etc. were exempted from that Duty. And upon a Demurrer the Question was, Whether the King's Letters Patents are sufficient to exempt Lands from the Charge of the repairing of the Highways, 
2 & 3 Ph. & Mar. c. 8.  which by the Statute of Philip and Mary and other subsequent Statutes are chargeable to send Men for that purpose.  
And it was argued, that such Letters Patents were not sufficient, because they were granted in this Case before the making of the Statute, and so by consequence before any cause of Action; and to prove this a Case was cited to this purpose.  
In 2 E. 
2 Inst. 569.  3. an Action was brought against an Hundred for a Robbery upon the Statute of 13 E. 1. The Bishop of Litchfield pleaded a Charter of R. 1. by which that Hundred, which was held in Right of his Church, was exempted, etc. But it was held that this Charter could not discharge the Action, because no such Action was given when the Letters Patents were made, but long afterwards.  
judgement was given for the Avowant.   

Upton versus Dawkin.  
TRespass quare vi & armis liberam piscariam he did break and enter, and one hundred Trout ipsius Quer. 
Trespass for taking Fish ipsius querentis in libera piscaria not good.  in the Fishery aforesaid did take and carry away.  
Upon Not guilty pleaded, there was a Verdict for the Plaintiff, and this Exception was taken in arrest of judgement, viz.  
For that the Plaintiff declared in Trespass for taking so many Fish ipsius Quer. in libera piscaria, which cannot be, because he hath not such a property in libera piscaria to call the Fish his own.  
Pollexfen contra. If there had not been a Verdict such a Construction might have been made of this Declaration upon a Demurrer; but now 'tis helped, and the rather because a Man may call them pisces ipsius in a free Fishery; for they may be in a Trunk; so a Man may have a property though not in himself, as in the Case of jointenants, where 'tis not in one, but in both; yet if one declare against the other, unless he plead the jointenancy in Abatement the Plaintiff shall recover.  
But notwithstanding the judgement was reversed.   

Dominus Rex versus ......  
THE Defendant was indicted for Barratry; 
Barratry.  the Evidence against him was, that one G. was arrested at the Suit of C. in an Action of 4000 l. and was brought before a judge to give Bail to the Action; and that the Defendant, who was a Barrister at Law, was then present, and did solicit this Suit, when in truth at the same time C. was indebted to G. in 200 l. and that he did not owe the said C. one farthing.  
The Chief justice was first of Opinion, that this might be Maintenance, but that it was not Barratry unless it appeared that the Defendant did know that C. had not cause of Action after it was brought.  
If a Man should be arrested for a trifling Cause, or for no Cause, this is no Barratry, though 'tis a sign of a very ill Christian, it being against the express Word of God.  
But a Man may arrest another thinking he hath a just cause so to do, when as in truth he hath none, for he may be mistaken especially where there hath been great deal between the Parties.  
But if the design was not to recover his own Right, but only to ruin and oppress his Neighbour, that is Barratry.  
A Man may lay out money in behalf of another in Suits at Law to recover a just Right, and this may be done in respect of the Poverty of the Party; but if he lend money to promote and stir up Suits than he is a Barretor.  
Now it appearing upon the Evidence that the Defendant did entertain C. in his House, and brought several Actions in his Name where nothing was due, that he was therefore guilty of that Crime.  
But if an Action be first brought, and then profecuted by another, he is no Barretor though there is no cause of Action. The Defendant was found guilty.    

DE Termino Paschae, Anno 2 Jac. II. in Banco Regis, 1686.  

Coram Edwardo Herbert Mil ' Capital ' Justice '.  
Francisco Wythens Mil ', Justiciariis.  
Richardo Holloway Mil ', Justiciariis.  
Thoma Walcot Mil ', Justiciariis.   
MEmorandum, That the First day of this Term, Sir Thomas Jones, Chief Justice of the Common-Pleas had his Quietus, and Sir Henry Beddingfield, one of the Justices of the same Court succeeded him in that Office. Likewise the Honourable William Mountagu, Esq; Lord Chief Baron of the Exchequer had his Quietus, and Sir Edward Atkyns, one of the Barons of the same Court, succeeded him. Sir Job Charleton, one of the Justices of the Common-Pleas had his Quietus, but was made Chief Justice of Chester; and Sir Edward Lutwich the King's Sergeant, was made one of the Justices of the Common-Pleas, and Sergeant Heath was made one of the Barons of the Exchequer.  

Okel versus Hodgkinson.  
THE Father and Son join in a Fine, in order to make a Settlement upon the second Wife of the Father, who was only Tenant by the Courtesy, the Remainder in Tail to his said Son. One of the Cognizors died after the Caption, and before the Return of the Writ of Covenant; and now a Writ of Error was brought to Reverse it, and this was assigned for Error.  
Curia. If it had been in the Case of a Purchasor for a valuable Consideration, the Court would have showed him some favour; but it being to do a wrong to a young Man, they would leave it open to the Law.  
THE first day of this Term, being the 22th day of April, there was a Call of Sergeants, viz. Sir John Holt of Grays-Inn, Recorder of London, who was made Kings Sergeant, Sir Ambrose Phillips, made also King's Sergeant, Christopher Milton, John powel, John Tate, William Rawlinson, George Hutchins, William Killingworth, Hugh Hodges, and Thomas Jeers. They all appeared that day at the Chancery-Bar, where having taken the Oaths, the Lord Chancellor Jefferies made a short Speech to them; after which they delivered a Ring to him, praying him to deliver it to the King. They went from the Inner-Temple-Hall to Westminster, and Counted at the Common-Pleas, and gave Rings, the Motto whereof was, DEUS, REX, LEX.   

Dominus Rex versus Saloway.  
SAloway drowned himself in a Pond, and the Coroners Enquest found him Non Compos Mentis, because 'tis more generally supposed that a Man in his Senses will not be Felo de se.  
The King's Council moved for a Melius Inquirendum, and that the Inquisition might be quashed, for that it sets forth, Quod pred. Defend. circa horam octavam ante meridiem in quoddam stagnum se projecit & per abundantiam aquae ibidem statim suffocat. & emergit ' erat, which is insensible.  
Pemberton Sergeant, contra. Here is no Exception taken to the substance of the Inquisition, and the word suffocat. had been sufficient, if the word emergit ' had been left out.  
The Court were of Opinion, that there being another word in this Inquisition, which carries the sense; 'tis therefore sufficient, but if it had stood singly upon this word Emergit ' it had not been good.  
And this Fact happening about the time of the general Pardon, the Court was of Opinion that where an Interest is vested in the King, a Pardon of all Forfeitures will not divest it, but that nothing was vested here before Inquisition found.  
2. It was objected, that this Inquisition ought to set forth that Saloway came by his death by this means, Et nullo alio modo quocunque.  
To which it was answered by Pemberton, that in matters of Form only, the judges have sent for the Coroner into Court, and ordered him to amend it.   

Rodney versus Strode.  
AN Action on the Case was brought against three Defendants, one of them suffered judgement to go by default, 
In a joint Action the Jury may sever the Damages.  and the other two pleaded Not Guilty. The Cause was tried the last Assizes at Exeter, and it was for imposing the Crime of Treason upon the Plaintiff, and for assaulting and imprisoning of him; there was a Verdict for the Plaintiff and 1000 l. damages against Mr. Strode, and 50 l. against the other Defendant, who pleaded.  
The Plaintiff entered a noll. prosequi against him, who let the judgement go by default; and against the other Defendant for the 50 l. damages, and took judgement only against Mr. Strode.  
Sergeant Pemberton moved for a new Trial, by reason of the excessive Damages, which were not proportioned to the quality of the Plaintiff, he being a Man of mean Fortune.  
But it was opposed by the Plaintiff, for that the Defendant pursued him as a Traitor, and when he was apprehended for that Crime, he caused him to be arrested for 1000 l. at the Suit of another person, to whom he was not indebted., so that upon consideration of the Circumstances of the Case, the Court refused to grant a new Trial.  
Then Sergeant Pemberton for the Defendants, moved in arrest of judgement, and for cause shown, that the jury have found both guilty, and assessed several Damages, which they cannot do, because this is a joint Action, to which the Defendants have pleaded jointly, and being found guilty modo & forma, the jury cannot assess the damages severally, for the damage is the same by the one as the other; 
Cro. Eliz. 860. Austen vers. Millard, & al'.  and therefore it hath been adjudged, that where an Action of Battery was brought against three, and one pleaded not guilty, and the other two Son Assault demesne, and several damages found against them, it was held ill, for that very reason, because it was a joint offence.  
'Tis true, where there are divers Defendants and damages assessed severally, the Plaintiff hath his election to take execution de melioribus damnis but this is when the Trials are at several times.  
So 'tis where they plead several Pleas; 
Cro. Car. 239. Walsh versus Bishop.  as in an Action of Battery, one pleads not guiity, and the other justifies, and both Issues are found for the Plaintiff; in such case he may enter a non pros. against one, and take judgement against the other, because their Pleas are several; but where they plead jointly, the jury cannot sever the Damages.  
But Mr. 
1 Bulst. 157. Sampson vers. Cramfield, & al'. Rast. Entr. 677. b.  Pollexfen for the Plaintiff insisted, that even in this case damages may be assessed severally; for where two Defendants are sued for the same Battery, and they plead the same Plea, yet damages may be assessed severally.  
So was Trebarefoot and Greenway 's Case in this Court, which was an Action for an Assault and Battery and false Imprisonment; one of the Defendants pleaded not Guilty, and the other justified; Issue was joined, and there was a Verdict for the Plaintiff, and damages assessed severally; the Plaintiff entered a noll. prosequi as to one, and took judgement against the other, and upon this a Writ of Error was brought in this Court, and the judgement was affirmed.  
So if an Action of Trespass be brought against two for taking of 100 l. the one took 70 l. and the other 30 l. damages shall be assessed severally.  
It was admitted that regularly the damages ought to be entire, especially where the Action is joint; but where the Facts are several, damages may likewise be so assessed; but in this Case the jury hath done what the Court would do, had it been in a Criminal Cause.  
Curia. This is all but one Fact which the jury is to try: 'Tis true, when several Persons are found Guilty criminally, than the damages may be severed in proportion to their Gild; but here all are equally guilty of the same offence; and it seems to be a contradiction to say that the Plaintiff is injured by one to the value of 50 l. and by the other to the value of 1000 l. when both are equally Guilty.  
Every Defendant ought to answer full as much as the Plaintiff is damnified; now how is it possible he should be damnified so much by one and so little by the other?  
But notwithstanding this Opinion, judgement was afterwards given for the Plaintiff.   

Peak versus Meker.  
IN an Action on the Case for Words, the Plaintiff declared that he was a Merchant, and bred up in the Church of England, and that when the present King came to the Crown, the said Plaintiff made a Bonfire at his Door in the City of London, and that the Defendant then spoke of him these words for which he now brought this Action, viz. He (innuendo the Plaintiff) is a Rogue, a Papist Dog, and a pitiful Fellow, and never a Rogue in Town has a Bonfire before his Door but he; The Plaintiff had a Verdict, and 500 l. Damages were given: A Writ of Error was brought, but it was adjudged without argument, that the words were actionable.   

joiner versus Pritchard.  
AN Action was brought upon the Statute of R. II. 
Admiralty.  for prosecuting of a Cause in the Admiralty- Court, which did arise upon the Land; it was tried before the Chief justice in London, and a Verdict for the Plaintiff.  
Mr. Thompson moved in Arrest of judgement, for that the Action was brought by Original, in which it was set forth, that the Defendant prosecut. fuit & adhuc prosequitur, etc. in Curia Admiralitat. now the prosequitur is subsequent to the Original, and so they have recovered Damages for that which was done after the Action brought.  
Curia. These words adhuc prosequitur must refer to the time of suing forth this Original; like the Case of a Covenant for quiet Enjoyment, and a breach assigned, that the Defendant built a Shed, whereby he hindered the Plaintiff that he could not enjoy it hucnsque which word must refer to the time of the Action brought, and not afterwards. judgement was given for the Plaintiff.   

Dominus Rex versus ........  
AN Information was brought against the Defendant for Forgery, 
Forgery.  setting forth, that the Defendant being a man of ill fame, etc. and contriving to cheat one A. did forge quoddam scriptum, dated the 16th day of October, in the year 1681. continens in se scriptum obligatorium per quod quidem scriptum obligatorium praed. A. obligatus fuit praed. Defend. in quadraginta libris, etc.  
He was found Guilty, and afterwards this Exception was taken in arrest of judgement,  
Viz. That the Fact alleged in the Information was a contradiction of itself, for how could A. be Bound when the Bond was forged?  
2. It is not set forth what that scriptum obligatorium was, whether it was scriptum sigillatum, or not.  
Curia. The Defendant is found Guilty of the forging of a Writing, in which was contained quoddam scriptum obligatorium, and that may be a true Bond. judgement was arrested.   

MEMORANDUM, On Tuesday, April the 27th. Sir Thomas Powes of Lincolns-Inn, was made Solicitor General in the Place of Mr. Finch, and was called within the Bar.   

Hanchet versus Thelwal.  
IN Ejectment a special Verdict was found, 
Devise. What words in a Will make an Estate for Life, and what in Tail.  in which the Case did arise upon the construction of the words in a Will.  
Viz. The Testator being seized in Fee, had Issue Two Sons and Four Daughters: He made his Will, and devised his Estate, (being in Houses) by these words. Viz. Irem, I give and bequeath to my Son Nicholas Price, my Houses in Westminster, and if itplease God to take away my Son, than I give my Estate to my four Daughters (naming them) share and share alike) and if it please God to take away any of my said Daughters before Marriage, than I give her or their part to the rest surviving. And if all my Sons and Daughters die without Issue, than I give my said Houses to my Sister Anne Warner, and her Heirs.  
Nicholas Price entered and died without Issue, than the four Sisters entered, and Margaret the eldest married Thellwel, and died, leaving Issue a Son, who was the Lessor of the Plaintiff, who insisted upon his Title to a fourth part of the Houses.  
The Question was, what Estate the Daughters took by this Will, whether joint Estates for Life, or several Remainders in Tail?  
If only joint Estates for Life, than the Plaintiff, as Heir to his Mother, will not be entitled to a fourth part; if several Remainders in Tail, than the Father will have it during his Life, as Tenant by the Courtesy.  
This Case was argued this Term by Mr. Pollexfen for the Plaintiff: And in Hillary- Term following by Council for the Defendant.  
The Plaintiffs Council insisted, that they took joint Estates for Life, and this seemed to be the intent of the Testator, by the words in his Will, the first Clause whereof was,  
Viz. I give and bequeath my Houses in W. to Nicholas Price: Now by these words an Estate for Life only passed to him, and not an Inheritance, for there was nothing to be done, or any thing to be paid out of it.  
2. The next Clause is, Viz. If it please God to take away my Son, than I give my Estate to my four Daughters, share and share alike.  
Now these words cannot give the Daughters a Fee-simple, by any intendment whatsoever; but if any word in this Clause seems to admit of such a Construction, it must be the word Estate, which sometimes signifies the Land itself, and sometimes the Estate in the Land.  
But here the word Estate cannot create a Fee-simple, because the Testator gave his Daughters that Estate which he had given to his Son before, and that was only for Lise.  
Then follow the words share and share alike; and that only makes them Tenants in Common.  
3. The next Clause is, Viz. If it please God to take away any of my said Daughters before Marriage, than I give her or their part to the rest surviving.  
These words as they are penned can have no influence upon the Case.  
4. Then followeth the last Clause, Viz. And if all my Sons and Daughters die without Issue, than I give, etc.  
These words create no Estate tail in the Daughters; for the Testator having two Sons and four Daughters, it cannot be collected by these words, how they shall take, and by consequence it cannot be an Estate Tail by implication.  
Now suppose one of the Daughters should die without Issue, 'tis uncertain who shall have her part; and therefore there being no appointment in what order this Estate shall go, it cannot be an Estate Tail, and to maintain this Opinion, this Case was cited.  
One Collier was seized in Fee of three Houses, 
2 Cro. 655. Gilbert versus Witty.  and had Issue three Sons, John, Robert and Richard, he devised to each of them a House in Fee, Proviso, if all my Children die without Issue of their Bodies then the Houses to be to his Wife.  
The two eldest Sons died without Issue, the younger had Issue a Daughter, who married the Lessor of the Plaintiff.  
The Question was, Whether by the death of the eldest Son without Issue, there was a cross Remainder to Richard, and the Heirs of his Body, or whether the Wife shall take immediately, or expect till after the Death of all the Sons without Issue? And it was adjudged, that the Wife shall take immediately, and that there were no cross Remainders, nor any Estate by implication, because it was a devise to them severally by express limitation.  
So that if no Estate tail ariseth to the Daughters in this Case by implication, 
Cro. Eliz. Taylor versus Sawyer.  then 'tis no more than a devise to his Issue, which extends to them all, and gives only an Estate for Life.  
For the Defendant it was argued, 
Ex parte Def.  that the Sons and Daughters have no Estate Tail by implication.  
It was agreed that Nicholas had only an Estate for Life, and that the word Estate in this case means the Houses, and not the Interest in them.  
'Tis true, there is no express Limitation of any Estate to them, but there is an express determination of it.  
Now if this be not an Estate Tail by implication, than the words dying without Issue are void.  
A devise to his Son, 
More 127.  and if he die not having a Son, then 'tis devised over, This is an Estate tail in Remainder.  
It cannot be a doubt who shall take first; for the Daughters shall take it, 
Dyer 333.  and after them, as 'tis most natural, the eldest Son; for where there is the same proximity of Blood, the Estate shall go to the eldest.  
As for instance, 
Hob. 33.  one Chapman being seized in Fee of two Houses, and having three Brothers, devised the House which A. dwelled in to his said three Brothers, and the House in which his Brother Thomas Chapman did dwell, he devised to the said Thomas, paying so much, etc. or else to remain to the Family of the Testator, provided that the Houses be not sold, but go to the next of the Males, and the blood of the Males. Thomas died without Issue, the eldest of the two surviving Brothers had Issue a Daughter, and died: the Question was, whether that Daughter or the youngest Brother of the Testator should have the House? It was adjudged that the Daughter should have it in tail. For the Proviso that the Houses be not sold, etc. made it a tail; and the words viz. to remain to the Family must be intended to the eldest.  
If this be not an Estate tail, than the Devise over to Anne Warner is void.  
As to the Case of Gilbert and Witty, that moves upon another reason; for there every one took by a distinct and separate Limitation.  
Curia. In that Case all the Estate was limited distinctly to the three Sons; but in this 'tis otherwise, for the Testator had two Sons, and no Estate was limited to one of them before; then he saith, If all my Sons and Daughters die without Issue, then, etc. And thus the Cases differ, which creates the difficulty.  
But no reason can be given why this Court should not construe Wills according to the Rules of Common Law, where an Estate by implication is so incertain; for when Men are sick and yet have a disposing power left they usually writ Nonsense, and the judges must rack their Brains to find out what is intended.  
This cannot be an Estate tail in the Daughters, and therefore the Heir must come in for his fourth part.  
judgement for the Plaintiff.   

Dixon versus Robinson.  
THIS was a special Issue, directed out of Chancery, 
Wayhil Fair.  and tried this day at the Bar, by a Middlesex Iury.  
The Question was, Whether Ballivus probi homines & Burgenses Burgi de Andover in Hampshire, had power to keep a Fair at Wayehil in any one place where they please; the Bill being Exhibited to confine the Fair to a particular place; which Fair was granted to them by Charter from Queen Elizabeth.  
They who would have it confined to a certain place, gave in Evidence, that the Hospitaller of Ewelme in Oxfordshire, was seized in Fee of the Manor of Rambridge, within which Manor the place was where the Fair was always kept, and that the Parson of Andover had Glebe there.  
That this place was called Wayehil, and that the profits did arise by Piccage and Stallage, to the yearly value of 200 l.  
That it was an ancient Fair held there by Prescription before the Town of Andover had a Charter.  
That upon the late Surrender of Charters, the Town of Andover did likewise surrender and took a new Charter, in which liberty was given to them to keep this Fair in what place they would.  
That both the Hospitaller and Parson petitioned the King in Council, and obtained an Order to Try where the Fair aught to be kept, which was tried accordingly at the Exchequer Bar, and a Verdict for the Parson.  
Chief Justice. If the Fair belongs to Andover, they may choose whether they will keep it at any place; and that may create another Question, Whether they may not forfeit this Franchise by disuser?  
But certainly if the place be not limited by the King's Grant, they may keep it where they please, or rather where they can most conveniently, and if it be so limited, they may keep it in what part of such place they will.   

Dawling versus Venman.  
AN Action on the Case was brought against the Defendant, 
Action for a Scandalous Affidavit in Chancery.  for making a Scandalous Affidavit in Chancery, in which were these words.  
Viz. Mr. Dawling is a Rogue and a Knave, and I will make it out before my Lord Chancellor, and I will have him in the Pillory.  
Upon not Guilty pleaded, there was a Verdict for the Plaintiff, and damages entire.  
It was moved in arrest of judgement, for that the truth of on Oath shall not be liable to a Trial in an Action on the Case; for the Law intendeth every Oath to be true.  
Before the Statute of 3 & 11 H. 
Cro. Eliz. 521 2 Cro. 607. Sid. 50. Hutt. 11.  7. which gives power to examine Perjury; there was not any Punishment at the Common Law for a false Oath made by any Witness, and therefore an Action will not lie for a scandalous Affidavit. Adjornatur.   

Anonymus.  
NOta, An Action of Assault and Battery, 
Release of one Def. shall not discharge the rest of a personal thing.  and false imprisonment was brought against four Defendants: the Plaintiff had judgement, and they brought a Writ of Error.  
The Plaintiff in the Action pleaded the Release of one of them, and to this Plea all four jointly demur.  
The Opinion of the Court was, that judgement might be given severally; for they being compelled by Law to join in a Writ of Error, the release of one shall not discharge the rest of a personal thing.  
But where divers are to recover in the personalty, 
6 Co. Ruddock's Case.  the Release of one is a Bar to all; but it is not so in point of discharge.  
If two Coparceners make a Lease of a House, and the Rent is in arrear, and one of them brings the Action and recovers, the judgement shall be arrested, because one alone hath recovered in Debt for a moiety, when both aught to join.  
But it is agreed that if one Tenant in Common make a Lease rendering Rend, which afterwards is in arrear, 
Litt. Sect. 316.  they must join in an Action of Debt, because it savours of the Personalty: But 'tis otherwise in case of the Realty.    

DE Term. Sanct. Trin. Anno 2 Jac. II. in Banco Regis, 1686.  

Herbert, Chief Justice.  
Wythens, Justices.  
Holloway, Justices.  
Wright. Justices.  
Sawyer, Attorney General,  
Powis, Solicitor General.   

Aldridge versus Duke.  
ASsault, 
Trespass continued many years, and the Statute of Limitations pleaded, the Jury gives Damages only for the last six years.  Battery, Wounding and Imprisoning of him, from the 10th of August, 24 Car. 2. usque exhibitionem Billae.  
The Defendant pleaded not Guilty, infra sex infra Annos.  
The Plaintiff replied, that the Writ was sued out 2 Octobris 1 Jacobi 2. And that the Defendant was Guilty within six years' next before the Writ brought.  
Upon this Issue was joined, and a Verdict was given for the Plaintiff, and entire damages given.  
Mr. Pollexfen moved two Exceptions in Arrest of judgement.  
1. That a Verdict cannot help what appears to be otherwise upon the face of the Record.  
Now here the Plaintiff declared that he was imprisoned the 10th of August 24 Car. 2. which is 13 years since, and being one entire Trespass the Issue is found as laid in the Declaration, which cannot be for so many years between the cause of Action and bringing of the Writ; for if a Trespass be continued several years, the Plaintiff must sue only for the last six years, for which he hath a complete cause of Action; but when those are expired he is barred by the Statute.  
When the Plaintiff hath any cause of Action, 
Sid. 25.  than the Statute of Limitations gins; as in an Action on the Case for words, if they are actionable in themselves without alleging special damages, the Plaintiff will recover Damages from the time of the speaking, and not according to what loss may follow.  
So in Trover and Conversion, when there is a cause of Action vested, and the Goods continue in the same possession for seven years afterwards; in such case 'tis the first conversion which entitles the Plaintiff to an Action.  
So in the Case at Bar, tho' this be a continued imprisonment, yet so much as was before the Writ brought, is barred by the Statute.  
Thompson contra. The Verdict is good, for the jury reject the beginning of the trespass and give Damages only for that which falls within the six years; and this may be done because 'tis laid usque exhibitionem Billae.  
If the Defendant had pleaded not Guilty generally, 
Cro. Car. 160, 381, 404.  than Damages must be for the 13 years, though the Plaintiff of his own showing had brought his Action for a thing done beyond the time limited by the Statute; but having pleaded not Guilty at any time within six years, if the Verdict find him guilty within that time, 'tis against him.  
As to the Objection, that the Cause of Action ariseth beyond six years, tho' it doth appear so in the Declaration, yet that doth not exclude the Plaintiff, for there might have been Process out before, or he might be disabled by an Outlawry, which may be now reversed; or he might be in Prison and newly discharged, from which time he hath six years to begin his Action, for being under either of these circumstances the Statute doth not hurt him.  
Curia. If an Action of false Imprisonment be brought for seven years, and the Jury find the Defendant guilty but for two days, 'tis a Trespass within the Declaration.  
This Statute relates to a distinct and not to a continued Act, for after six years it will be difficult to prove a Trespass, many accidents may happen within that time, as the death or removal of Witnesses, etc.  
judgement was given for the Plaintiff.   

Dobson versus Thornistone.  
THE Plaintiff was a Husbandman, 
Words spoken of a Farmer actionable.  who brought an Action against the Defendant for these words, He owes more money than he is worth, he is run away and is broke. He had a Verdict, and it was moved now in Arrest of judgement, that the Words being spoken of a Farmer, are not actionable. To say that a Gentleman is a Cozener, 
Hill. 28 Eliz. B.R. Godb. 40.  a Bankrupt, and hath got an Occupation to deceive Men; though he used to Buy and Sell, yet being no Merchant, 'twas the better Opinion of the Court, that the Words were not actionable.  
So to say of a Farmer, 
Styles 420.  that he is a Whoreson Bankrupt Rogue, and it not appearing that he got his living by Buying and Selling, or that the Words were spoken of him relating to his Occupation, 'tis not actionable.  
For it must not only appear that the Plaintiff hath a Trade, 
Sid. 299. Hutt. 50.  but that he gets his Living by it, otherwise the Words spoken of him will not bear an Action.  
But the Court held the Words to be actionable: the like judgement was given in the Case of a Carpenter, Mich. 3 Jac. for Words, Viz. He is broke and run away.   

Anonymus.  
NOta, 
Misentry of a Writ of Enquiry amendable without paying Costs.  judgement was given upon a Demurrer, and a Writ of Enquiry was awarded; and in the Entry thereof upon the Roll the Words (per Sacramenum duodecim proborum & legalium hominum) were left out, and now the Question was, Whether it shall be amended?  
It was said that a Capiatur for a Misericordia shall be amended upon the new Statute of Jeofails, after a Verdict, but whether upon a Demurrer, it was doubted.  
In a Quo Warranto judgement was entered by disclaimer, 
Cro. Car. 184.  by the consent of all Parties, and the Words virtute & praetextu literarum patentium gerens. dat. 17 Jacobi, were wrote in the Margin of the Paper Book by the then Attorney General; but by reason of a stroke cross them the Clerk omitted them in engrossing the judgement: But upon a Motion the Court held this amendable at the Common Law.  
Curia. The Error is only a Misentry of the Writ of Enquiry and amendable without paying of Costs.  
Mr. Aston the Secondary said that Costs were never paid in this Court upon such Amendments, nor in the Common Pleas until my Lord Chief justice Vaughan's time; but he altered the Practice and made that Rule, that if you amend after a Writ of Error brought you must pay Costs.   

Holcomb versus Petit.  
A Devastavit was brought against an Administrator of a rightful Executor, who pleaded an insufficient Plea; 
Administrator of a rightful full Executor is liable to a Devastavit. 30 Car. 2. c. 7.  and upon a Demurrer the Question was upon the Statute of 30 Car. 2. The Title whereof is, An Act to enable Creditors to recover Debts of Executors and Administrators of Executors in their own wrong, which is introductory of a new Law, and charges those who were not chargeable before at the Common Law; but it enacts, That when Executors of persons who are Executors de son tort, or Administrators, shall convert the Goods of any person deceased, that they shall be liable as their Testator or Intestate would have been.  
Gold held, that he shall not be charged, for where an Act of Parliament charges an Executor, in such case an Administrator shall be likewise charged; but if an Administrator be charged, that shall never extend to an Executor. The Rule is, A majori ad minus valet Argumentum, sed non e contra; therefore the rightful Executor shall not be charged by this Act, which only makes Executors of Executors de son tort liable.  
Pollexfen contra. There can be no reason given why the Act should make an Administrator of an Administrator liable to a Devastavit, and not an Administrator of an Executor de son tort for the mischief will be the same, and therefore a rightful Executor who wastes the Testator's Goods ought to be charged.  
The Recital of this Act is large enough; the Preamble is general and the enacting Clause expresseth Executors and Administrators of Executors the son tort; but than it also mentions Administrators, but not such who are their Administrators de son tort.  
Now the Word Administrator is in itself a general Word, and extends to any one who meddles with the personal Estate, so that the Preamble being general and the Act remedial 'tis within the same mischief.  
Curia. The Word Administrator is very comprehensive, for when an Executor pleadeth he saith Plene administravit.  
If a rightful Executor waste the Goods, he is a kind of an Administrator de son tort for abusing of the Trust.  
There is no Superiority between an Executor or an Administrator, for by this Act they are both equal in power as to the Goods of the deceased.  
judgement was given that the Administrator of the rightful Executor shall be liable.   

Jenings versus Hankeys.  
'TIS enacted by the Statute of 13 Car. 
Where an Informer shall be a Witness, though he hath part of the Penalty. 13 Car. 2. c. 10.  2. That they who kill, course, hunt or take away Red or Fallow Deer in any Ground where Deer are kept, etc. or are aiding therein, if such are convicted by Confession or Oath of one Witness before one Justice of the Peace within six Months after the Offence done, shall forfeit 20 l. one Moiety to the Informer, the other to the Owner of the Deer, to be levied by Distress by Warrant under the Justice's Hand.  
The Defendant was convicted by the Oath of the Informer; and Mr. Shower moved that it might be quashed, because the Informer is not to be admitted as a Witness, he being to have a Moiety of the Forfeiture.  
The Party to an usurious Contract shall not be admitted as an Evidence to prove the Usury, 
12 Co. 68 2 Rol. Abr. 685  because he is Testis in propria causa, and by their Oath may avoid their own Bonds.  
Mr. Pollexfen contra. The Statute gives power to convict by the Oath of a credible Witness, and such is the Informer.  
'Tis not a material Objection to say, That the Informer shall not be a Witness because he hath a Moiety of the Forfeiture, for in Cases of the like nature the Informer is always a good Witness.  
As upon the Statute for suppressing of Conventicles the Informer is a good Witness, and yet he hath part of the Penalty; for otherwise that Act would be of little force, for if who sees the People met together be not a good Witness no Body else can.  
Curia. In the Statute of Robberies a Man swears for himself; because there can be no other Witness, he is a good Witness.   

Harman versus Harman.  
DEBT upon a Bond against an Administrator, 
Notice of a Debt must be given to an Administrator.  who pleaded Fully administered, and that he had not notice of this Bond before such a day.  
In this Case a special Verdict was found; upon which the Question was, Whether Notice was necessary to be given of Debts of an inferior nature.  
The Court gave no Opinion; but they agreed that a judgement upon a simple Contract may be pleaded in Bar to an Action of Debt upon a Bond; and that 'tis no Devastavit in an Executor to pay a Debt upon such a Contract before a Bond Debt, 
Vaughan 94.  of which he had no Notice.  
So where an Obligor did afterwards enter into a Recognizance in the nature of a Statute, 
2 Anders. 159. 1 Mod. 157.  and judgement was against him upon the Bond, and then he died; his Executrix paid the Creditor upon the Statute, and the Obligee brought a Scire Facias upon the Judgement on the Bond Debt, and she pleaded payment of the Recognizance; this was held a good Plea, for she is not bound to take Notice of the judgements against the Testator without being acquainted therewith by his Creditors, for she is in no wise privy to his Acts.    

DE Term. Sancti Mich. Anno 2 Jac. II. in Banco Regis, 1686.  

Anonymus.  
AN Information was exhibited against the Defendant for Perjury, 
Perjury in a Deposition taken before Commissioners in Chancery.  setting forth that a Bill in Chancery was exhibited by one A. B. and the Proceed thereon.  
The Perjury was assigned in a Deposition made by the Defendant 30 Julii, 1683. and taken in that Cause before Commissioners in the Country.  
It was tried this day at the Bar; and the Question was, Whether the Return of the Commissioners that the Defendant made Oath before them shall be a sufficient Evidence to convict him of Perjury without their being present in Court to prove him the very same person.  
Sergeant Pemberton for the Defendant, admitted an Information will lie in this Case against him, but the Commissioners must be here, or some other person, to prove that he was the person who made Oath before them.  
The Commissioners sign the Depositions, and they ought to produce them so signed to the Court and prove it, for Depositions are often suppressed by Order of the Court.  
If a true Copy of an Affidavit made before the Chief justice of this Court be produced at a Trial 'tis not sufficient to convict a Man of Perjury.  
This is not like the Case of Perjury assigned in an Answer in Chancery taken in the Country, for that is under the Parties Hand, but here is nothing under the Defendant's Hand, and therefore the Commissioners ought to be in the Court to prove him to be the Man.  
The Court were equally divided: The Chief justice and Wythens justice were of Opinion that it was not Evidence to convict the Defendant of Perjury; it might have been otherwise upon the Return of a Master of Chancery, for he is upon his Oath, and is therefore presumed to make a good Return; but Commissioners are not upon Oath, they pen the Depositions according to the best of their skill, and a man may call himself by another name before them without any offence.  
The Commissioners cannot be mistaken in the Oath, tho' they may not know the person; for this Court may be so mistaken in those who make Affidavits here, but not in the Oath; if the Commissioners or the Clerk to the Commission had been here, they would have been good Evidence.  
If an Affidavit be made before a justice of the Peace of a Robbery as enjoined by the Statute, if you will convict the person of Perjury you must prove the swearing of the Affidavit.  
The Attorney General perceiving the Opinion of the Court, rather than the Plaintiff should be nonsuit, because no Evidence could be given, offered to enter a Nolle prosequi, which the Court said could not be done, because the jury were sworn; but he insisted upon it and said he would cause it to be entered.   

Sir John Knight's Case.  
AN Information was exhibited against him by the Attorney General upon the Statute of 2 E. 3. 
Information upon the Statute for going armed. 2 E. 3. c. 3.  Which prohibits all persons from coming with Force and Arms before the King's Justices, etc. and from going or riding armed in affray of Peace on pain to forfeit his Armour, and suffer Imprisonment at the King's Pleasure.  
This Statute is confirmed by that of R. 2. 
20 R. 2.1.  with an Addition of a farther punishment, which is to make a Fine to the King.  
The Information sets forth that the Defendant did walk about the Streets armed with Guns, and that he went into the Church of St. Michael in Bristol in the time of Divine Service with a Gun to terrify the King's Subjects contra formam Statuti.  
This Case was tried at the Bar, and the Defendant was acquitted.  
The Chief justice said that the meaning of the Statute of Ed. 3. was to punish People who go armed to terrify the King's Subjects.  
'Tis likewise a great Offence at the Common Law, as if the King was not able or willing to protect his Subjects; and therefore this Act is but an affirmance of that Law, and it having appointed a Penalty this Court can inflict no other Punishment than what is therein directed.    

DE Term. Sancti Hill. Anno 2 & 3 Jac. II. in Banco Regis, 1686/7.  

Kingston versus Herbert.  
A Common Recovery was suffered Anno 22 Jacobi primi, 
Where a Scire Facias must go to the Tertenants before Judgement be reversed.  and a Writ of Error was brought about five years since to reverse it, and judgement was given for the Reversal; and it was now moved to set aside that Reversal, because there was not Scire Facias against the Tertenants.  
Mr. Williams, who argued for the Reversal, said that the want of a Scire Facias must be either in Law or in Fact; it cannot be Error in Law, for that must appear upon the Record itself which it doth not here.  
It cannot be Error in Fact, because there is no necessity of such a Writ, 'tis only discretionary in the Court, and not ex necessitate juris.  
But on the other side it was insisted, that the Court cannot proceed to examine Errors before a Scire Facias is awarded to the Tertenants, 
Dyer 320, 331.  for they may have a Matter to plead in Bar to the Writ, as a Release, etc. and the Party cannot be restored to all which he hath lost by the suffering of the Recovery, unless the Defendant be brought in upon the Scire Facias.  
Curia. The only Question is whether this judgement be well given without a Scire Facias.  
The Secondary hath reported that the Practice is so.  
Then as to the Ojection, that such a Scire Facias is not ex necessitate juris but only discretionary; 'tis quite otherwise, for 'tis not only a cautionary Writ as all other Scire Facias, but 'tis a legal caution which in a manner makes it necessary.  
'Tis true, if there had been a judgement corruptly obtained this Court might have set it aside; but if Erronice 'tis a doubt whether it may be vacated but according to the Forms and Methods of Law. Adjornatur.   

Baldwin versus Flower.  
BAron and Feme brought an Action on the Case for Words spoken of the Wife: 
Words, where actionable without special damage.  The Declaration was, that the Defendant having some discourse with another person called, the Wife Whore, and that she was his Whore, and concluded ad dampnum ipsorum, etc.  
The Plaintiff had a Verdict, and it was now moved in arrest of judgement, for that the Words were not actionable without alleging special damage.  
But it was answered, 
Rol. Abr. 35. placit. 7.  that the Action was well brought. To say, A Man is rotten with the Pox is actionable without alleging special damage, because the person by such means will lose the Communication and Society of his Neighbours.  
As to the Conclusion ad dampnum ipsorum 'tis good, for if she survive the Husband the Damages will go to her, and so are all the Precedents.  
Curia. The Words are actionable: And three justices were of Opinion that the Conclusion of the Declaration was as it ought to be, which justice Wythens denied; for if an Innkeeper's Wife be called a Cheat, and the House loses the Trade, the Husband hath an injury by the Words spoken of his Wife, but the Declaration must not conclude ad dampnum ipsorum.   

Sir Thomas Grantham's Case.  
HE bought a Monster in the Indies, which was a Man of that Country, who had the perfect Shape of a Child growing out of his Breast as an Excrescency, all but the Head.  
This Man he brought hither and exposed to the sight of the People for Profit.  
The Indian turns Christian and was baptised, and was detained from his Master, who brought a Homine Repleg '; the Sheriff returned that he had replevied the Body, but doth not say, the Body in which Sir Thomas claimed a Property; whereupon he was ordered to amend his Return, and then the Court of Common-Pleas bailed him.   

Banson versus Offley.  
AN Appeal of Murder was tried in Cambridgshire against three persons, 
An Appeal of a Murder was tried, not where the Stroke was given, but where the Party died.  and the Count was that Offley did assault the Husband of the Appellant and wounded him in Huntingtonshire, of which Wound he did languish and die in Cambridgeshire, and that Lippon and Martin were assisting.  
The jury found a special Verdict in which the Fact appeared to be, that Lippon gave the Wound, and that Martin and Offley were assisting.  
The first Exception to this Verdict was, that the Count and the Matter therein alleged must be certain, and so likewise must the Verdict, otherwise no judgement can be given; but here the Verdict finding that another person gave the Stroke, and not that person against whom the Appellant had declared, 'tis directly against her own showing.  
2. This Fact was tried by a jury of Cambridgshire when it ought to have been tried by a jury of both Counties.  
The Court answered to the first Exception, that it was of no force, and that the same Objection may be made to an Indictment, where in an Indictment if one gives the Stroke and another is abetting, they are both principally and equally guilty; and an Indictment ought to be as certain as a Count in an Appeal.  
As to the second Exception, 'tis a good Trial by a jury of Cambridgshire alone, and this upon the Statute of 2 & 3 Ed. 6. 
2 & 3 Ed. 6. cap. 24.  the Words of which Statute are, viz. Where any person, etc. shall hereafter be feloniously stricken in one County, and die of the same Stroke in another County, that then an Indictment thereof found by the Jurors of the County where the death shall happen whether it be found before the Coroner upon the sight of the Body or before the Justices of the Peace, or other Justices or Commissioners, who shall have Authority to inquire of such Offences, shall be as good and effectual in the Law as if the Stroke had been in the same County, where the Party shall die or where such Indictment shall be found.  
'Tis true, 
4 Inst. 49  that at the Common Law if a Man had received a mortal Wound in one County, and died in another, the Wife or next Heir had their Election to bring an Appeal in either County, but the Trial must be by a jury of both Counties.  
But now that mischief is remedied by this Statute, which doth not only provide that an Appeal shall be brought in the County where the Party died, but that it shall be prosecuted, which must be to the end of the Suit. Adjornatur.   

Dominus Rex versus Hinton and Brown.  
AN Indictment was brought against the Defendants setting forth, 
Subornation of Perjury.  that a Conventicle was held at a certain place, and that they movebant, persuadebant & subornaverunt a certain person to swear that several Men were then present, who really were at that time at another place.  
They were found guilty, and a Writ of Error was brought to reverse the judgement; the Error assigned was, that the Indictment doth not set forth, that any Oath was made, so it could not be Subornation.  
There is a difference between the persuading of a man to swear falsely and Subornation itself, for an Indictment for Subornation always concludes contra formam Statuti.  
Curia. 'Tis not enough to say a Man suborned another to commit a Perjury, but he must show what Perjury it is, which cannot be without an Oath; for an Indictment cannot be framed for such an Offence unless it appear that the thing was false which he was persuaded to swear.  
The Question therefore is, If the person had sworn what the Defendants had persuaded him to do, whether that had been Perjury.  
There is a difference when a Man swears a thing which is true in Fact, and yet he doth not know it to be so, and to swear a thing to be true which is really false; the first is Perjury before God, and the other is an Offence of which the Law takes notice.  
But the Indictment was quashed, because the Words Per Sacramentum duodecim proborum & legalium hominum were left out.  
They held that if the Return had been right upon the File, the Record should be amended by it.   

Blaxton versus Stone.  
THE Case was this. viz. A Man seized in Fee, etc. 
What words make an Estate Tail in a Will.  had Issue two Sons; he devised all his Land to his eldest Son, and if he die without Heirs Males then to his other Son in like manner.  
The Question was, Whether this was an Estate Tail in the eldest Son.  
Curia. 'Tis plain the Word Body, which properly creates an Estate Tail is left out; but the intent of the Testator may be collected out of his Will that he designed an Estate Tail; for without this Devise it would have gone to his second Son, if the first had died without Issue. 'Tis therefore an Estate Tail.    

DE Termino Paschae, Anno 3 Jac. II. in Banco Regis, 1687.  

Herbert Chief Justice.  
Wythens Justices.  
Holloway Justices.  
Powel Justices.   

Dominus Rex versus William Beal.  
MEmorandum, 
A Soldier executed not in the County where he wes condemned.  That on Saturday April 15. Mr. Attorney moved that this Court would award Execution upon the Defendant, who was a Soldier, for deserting of his Colours, and was condemned for the same at the Affizes at Reading in Berks and reprieved, and that he might be executed at Plymouth where the Garrison then was.  
The Chief justice in some heat said, that the Motion was irregular, for the Prisoner was never before the Court.  
Mr. Attorney then moved for a Habeas Corpus, and on Tuesday April the 18th. the Soldier was brought to the Bar, and Mr. Attorny moved it again.  
But it was affirmed by the Chief justice and justice Wythens that it could not be done by Law, for the Prisoner being condemned in Berks, and reprieved by the judge to know the King's Pleasure, and now brought hither cannot be sent into another County to be executed; it may be done in Middlesex by the Prerogative of this Court which sits in that County, but no where else but in the proper County where the Trial and Conviction was; so the Prisoner was committed to the King's Bench, and the Record of his Conviction was not filled.  
But it was the King's Will that this Man should be executed at Plymouth where the Garrison was, that by this Example other Soldiers might be deterred from running from their Colours.  
SIR Robert Wright, who was made Chief Justice of the Common Pleas in the room of Sir Henry Beddingfield, who died the last Term (as he was receiving of the Sacrament,) was on Friday following, being the 21st of April, made Chief Justice of this Court in the place of Sir Edward Herbert, who was removed into the Common Pleas, and made Chief Justice there; and Sir Francis Wythens had his Quietus the Night before.  
The same 21st day of April after this Removal the Soldier was brought again to the Bar, and upon the Motion of Mr. Attorny was ordered by the new Chief justice to be executed at Plymouth, which was done accordingly.  

Wright Chief Justice.  
Holloway, Justices.  
Powel, Justices.  
Allibon, Justices.    

Monday, May 2d.  
NOTA. A Writ of Error was brought upon a judgement given in this Court returnable in Parliament, which was Prorogued from the 28th day of April to the 22d. day of November following.  
Sir George Treby moved, that it might be discharged; for it could not be a Supersedeas to this Execution, because there was a whole Term, which intervened between the Teste and Return of the Writ of Error, viz. Trinity-Term.  
On the other side, it was said that the Proclamation was no Record, it only shows the present Intention of the King, which he may recall at any time.  
But the Court made no Rule.    

DE Term. Sanct. Trin. Anno 2 Jac. II. in Banco Regis, 1686.  

Wright, Chief Justice.  
Holloway, Justices.  
Powel, Justices.  
Allibon, Justices.  
Sawyer, Attorney General,  
Powis, Solicitor General.   

The Company of Merchant Adventurers versus Rebow.  
IN a special Action on the Case, 
Whether the King hath a Prerogative to restrain Trade to a particular number of Men.  the Plaintiffs declared, that in the Reign of H. 4. there was a Society of Merchant's Adventurers in England, and that afterwards Queen Elizabeth did by her Letters Patents incorporate them by the Name of the Governor and Company of the Merchant's Adventurers, etc. and gave them Privilege to trade into Holland, Zealand, Flanders, Brabant, the Country belonging to the Duke of Lunenburgh, and Hamburgh, prohibiting all others not free of that Company; by virtue whereof they did trade into those parts, and had thereby great Privileges and Advantages; that the Defendant not being free of the said Company did trade into those Parts without their authority, and imported Goods from thence into this Kingdom ad damnum, etc.  
The Defendant pleaded as to Hamburgh Not-guilty, 
15 E. 3. c. 3.  and as to the other places he pleaded the Statute of Ed. 3. That the Seas shall be open to all Merchants to pass with their Merchandise whither they please.  
The Plaintiff demurred, and the Defendant joined in Demurrer.  
This Case was now argued by Council on both sides.  
The Council for the Plaintiff in their Arguments made these Points.  
1. What Power the King had by his Prerogative to restrain his Subjects from trading to particular places.  
2. Admitting he had such a Prerogative, whether an Action on the Case will lie.  
As to the first Point it was said, 
Magna Charta cap. 30. 2 Inst. 57  that all Trades must be under some Regulation, and that the Subject hath not an absolute power to trade without the leave of the King; for it is said in our Books Omnes Mercatores nisi publice prohibiti fuerint habeant salvum & securum conductum, which is meant of Merchant Strangers in Amity with us, and nisi publice prohibiti must be by the King.  
Now if Merchant's Strangers may be prohibited from coming into England, by the same reason the King's Subjects may be restrained to go out of the Kingdom; and for that purpose the Writ of Ne exeat Regnum was framed, 
F. N. B. 85. 3 Inst. 179.  which is grounded upon the Common Law, and not given by any particular Statute.  
The King's Prerogative in this and such like Cases is so much favoured by Law, 
1 Leon. 9 More 172.  that he may by his Privy Seal command any of his Subjects to return out of a Foreign Nation or seize their Lands.  
The first Statute which regulates Trade is, 
27 E. 3. cap. 1.  that which confined the Staple to certain places that persons might not go about in Companies to trade without the King's Licence; and from thence came Markets; and if such were kept without the King's Grant a Quo Warranto would lie against them who continued it, and the People, who frequented those Markets were punishable by Fine.  
The Law is plain, 
F. N. B. 125. 2 Roll. Abr. 140.  that the King is sole judge of the place where Markets shall be kept; for if he grant one to be kept in such a place which may not be convenient for the Country, yet the Subjects can go to no other, and if they do, the Owner of the Soil, where they meet, is liable to an Action at the Suit of the Grantee of the Market.  
A Custom to restrain a Man from the exercising of his Trade in a particular place hath been adjudged good; 
Sir G. Farmer's Case cired in 8 Co. 127.  as to have a Bakehouse in such a Manor and that no other should use that Trade there.  
And as a Man may be restrained by Custom so he may restrain himself from using of a Trade in a certain place; 
2 Cro. Brown versus Joliffe.  as if he promise upon a valuable consideration not to use the Trade of a Mercer in such a place.  
And 'tis very necessary that Trade should in some measure be restrained so as to be managed only by Freemen, because 'tis of more advantage to the King that it should be carried on by a Company (especially in London) who may manage it with Order and Government, that is, by some power to restrain particular persons from that Liberty which otherwise they would use; and therefore such Companies have always power to make By Laws to regulate Trade, which is the chief End of their Incorporation.  
And if such Corporations have power to judge and determine who are fit persons to exercise Trades within their jurisdiction, the King hath certainly a greater Prerogative to determine which of his Subjects are fit to trade to particular places exclusive from the Rest.  
That the Governors of Corporations have taken upon them such Authority appears in Townsend's Case, 
Sid. 107.  who served an Apprenticeship to a Tailor in Oxford, and was refused by the Mayor to be made a Freeman of that City, which shows that if a person be not qualified he may be excluded.  
This is a very ancient Company, for Cloth was first brought into this Realm in the Reign of Ed. 3. and was always under some Government.  
My Lord Rolls quoting the Parliament Roll of H. 
1 H. 5. no. 41. 2 Abr. Roll. 174. placit. 39  5. wherein the Commons pray that all Merchants might import or export their Goods to any place (except such as were of the Staple) paying the Customs, takes notice that this Prayer was made against the Companies which prohibited such Trading.  
This shows that even in those days Trade was under a Regulation.  
King Ed. 
34 E. 3. c. 18. 38 E. 3. c. 11.  3. gave Licence to all Merchant's Denizens, who were not Artificers to go into Gascoigne for Wines, and that Aliens might bring Wines into this Realm, and that all Merchandizes might be carried into Ireland, and exported from thence, which shows that without such leave persons could not trade thither, and Denizens could not import Wines from those parts.  
The Case of sole Printing is a Manufacture, and so not in the power of the King to restrain, for 'tis a piece of Art and Skill; but when once it becomes of public concernment than the Prerogative interposeth.  
'Tis a vain Objection to say, that every Subject hath a Right to trade, which Right is grounded upon the Common Law; for that Law can give no such Authority against any King's Prohibition; For suppose a foreign Prince should forbid the Subjects of England to trade within his Dominions, what Right can the Common Law give them so to do?  
Or suppose any Foreign Prince should restrain Trade to a peculiar number of Men exclusive from the rest, how would the Common Law help them? So that if this Trade depend upon the Will of a Foreign Prince, why may not the King of England prohibit his Subjects from using of it?  
He who hath the sole power of making Leagues and Treaties is the foundation of Trade, and can that Right which the Subject hath at the Common Law be independent on this?  
The Question now is about the Regulation of a Trade by Letters Patents which the King hath power to do.  
1. By his Prerogative, 
27 E. 3. c. 1. 43 E. 3. c. 1. 47 E. 3. 1 H. 5. num. 40.  for the appointment of the Staple is not by virtue of any Act of Parliament, but 'tis the effect of Leagues and Treaties.  
2. By Acts of Parliament which have allowed such Grants, and from other Acts which take notice of the King's Prerogative.  
In 12 H. 7. 
12 H. 7. c. 6.  a Fellowship of Merchant Adventurers in London made an Order to restrain all persons to sell at such a Mart without their consent.  
The Statute of 3 Jacobi recites Letters Patents of the Incorporation to certain Merchants to trade into Spain; and 4 Jac. 
3 Jac. c. 6. Cap. 9  recites the like Letters Patents granted to the Merchants of Exeter by the Queen.  
The next thing to be considered is, what Acts of Parliament have either taken away or abridged the King's Prerogative.  
The first is Magna Charta, viz. That all Merchants shall stay here nisi publice antea prohibiti, the meaning of which hath been already explained.  
The second Statute is, that which the Defendant hath pleaded. In answer to which 'tis to be observed that a Preamble of any Statute Law is the best Expositor of it, because it usually mentions the occasion of its making; and this Act amongst other Things and Petitions recites, that the King had granted to the Men of Flanders that the Staple of Wool should be at Bruges, which Town had ordered that no Wool should be sold to Strangers, which was much to the damage of trading Merchants.  
Now what is the Remedy in this Case? Why the King grants that they may buy Wool at such prizes as they can agree, and carry it where they please, let the Seas be open, etc. So that this Act had only a prospect to remedy the abuse of the Staple, which hath in no sort abridged the King's Prerogative.  
If there should be no Regulation of Trade by the Power and Prerogative of the King, what would become of the Turkey Company, when it might be in the power of one Man to ruin all the Effects of our English Merchants there by a Misdemeanour? Therefore it ought to be looked after very strictly.  
All Arguments which may be deduced from Monopolies will have no influence upon this Case, because this Grant doth not bar the Subject of any precedent Right.  
2. As to the second Point 'tis not to be doubted, but that since they are abridged in Interest an Action on the Case will lie.  
Mr. 
E contra.  Pollexfen contra. These Letters Patents extend to a great part of Europe, and the consequence of this judgement (if for the Plaintiffs) must be, that all Merchants trading thither must be of this Company, or excluded from Trade in those Parts.  
Now supposing that several Men may be of this Company, 'tis impossible that all Merchants, who trade into those parts of Europe, should be Members thereof; for where should they meet to make By-Laws? Neither is it probable that other Merchants who live remote from London will adventure their Stock and Estates with the Citizens. What will become of the Clothiers, must they sell their Cloth at the Rate imposed by this Company?  
The Question is not whether the King may restrain his Subjects from trading to particular places, or that the Trade of the People is not under the Government of the King, nor whether he may make Leagues and Treaties, for 'tis certainly his Prerogative; nor how the Staple was formerly, which hath been long since discontinued and not easy to find out; nothing will follow from either of these considerations which may be of any use in this Case.  
But the Question is whether the King can make such a Grant excluding all others from trading; for 'tis expressly provided by the Statute of H. 7. 
12 H. 7. c 6.  that no Englishman shall take of another any Fine or Imposition, for his Liberty to buy and sell.  
The Case of the East-India Company is not like this, for they who argued then did admit, that if the Grant to that Company had restrained the Subjects from trading to Christian Countries it had been void; but it only prohibiting a Trade with Infidels with whom we should have no Communication without the King's Licence lest we should forsake the Catholic Faith and turn Infidels, for that reason it was held good.  
And such a Licence was seen by my Lord Coke, 
2 Brownl. 296.  as he tells us in Michelburn's Case, which was granted in the Reign of Ed. 3.  
But a Patent to exclude all others is void both by the Common Law and the Statute Law.  
As to the Argument that the Common Law gives no Privilege to Trade against the King's Prohibition, because Foreign Princes may restrain the Trade to a particular number of Men; can any Inference be made from thence that the Kings of England may therefore restrain Trade to a like number of Men?  
All Patents prohibiting Trade are void. 
1 Rol. Rep. 4. 13 H. 4.14.  If a Man would give give Lands in Mortmain, or would have a new Way by taking in the Common Highway, this may be done with the King's Licence, and the Escheator or Sheriff is to examine the Fact and if it be ad dampnum alterius such a Licence is void as being prejudicial to the Subject, 
F. N. B. 222.  and if 'tis void a fortiori a Grant to restrain Trade must be so.  
All Engrossing and Monopolising are void by the Common Law, the one is a Species of the other; 'tis defined by my Lord Coke to be an allowance by the King's Grant to any person for the sole buying or selling of any thing restraining all others of that Liberty which they had before the making of such a Grant; 
3 Inst. 181.  and this he tells us is against the ancient and fundamental Rights of this Kingdom.  
This Patent agreeth exactly with that Definition, 
9 E. 3. cap. 1. 18 E. 3. c. 3. 25 E. 3. c. 2. Roll. Abr. 180. 2 R. 2. c. 1. 11 R. 2. c. 7.  and therefore it must be against Law; 'tis against an Act of Parliament which gives Liberty to Merchants to buy and to sell in this Realm without disturbance; and 'tis expressly against the Statute of 21 Jac. cap. 3. which declares all such Letters Patents to be void.  
That which may give some colour to make such Grants good, 
2 Inst. 540. 11 Rep.  is a pretence of Order and Government in Trade; but my Lord Coke was of Opinion, that it was a hindrance to both, and in the end it produced Monopolies.  
There is a great difference between the King's Grant and his Prohibition; for the one vests an Interest, which is not done by the other, and all Prohibitions determine by the King's death; but Grants still remain in force. Adjornatur.   

Langford versus Webber.  
IN Trespass for the taking of a Horse; 
Justification upon a bare possession good against a wrong doer.  the Defendant justified, for that Joseph Ash was possessed of a Close, etc. and that the Defendant as his Servant took the Horse in that Close Damage fesant.  
And upon a Demurrer to this Plea, for that the Defendant did not show what Title Ash had to this Close. The Council for the Defendant insisted, that it being in Trespass, 'tis sufficient to say that Ash was possessed, because in this Case possession is a good Title against all others. But it might have been otherwise in Replevin.  
The Title of the Close is not in question, 
Cro. Car. 138. Yelv. 74. Cro. Car. 571. pl. 10.  the possession is only an inducement to the Plea, and not the substance thereof, which is the taking of the Horse; and the Law is plain, that where the interest of the Land is not in question, a Man may justify upon his own possession against a wrongdoer.  
Mr. Pollexfen on the other side alleged that damage pheasant would bring the Title of the Land in question: But the Court gave judgement for the Defendant.   

Perkins versus Titus.  
A Writ of Error was brought to reverse a judgement given in the Common-Pleas, 
Fine upon an Admittance where it must be certain.  in Replevin for taking of the Plaintiff's Sheep.  
The Defendant avowed the taking damage pheasant.  
The Plaintiff replied, that the Lands where, etc. were Copyhold, held of the Manor of Bushy in Com. Hertf. the Custom whereof was, that every Tenant of the said Manor qui admissus foret to any Copyhold Estate should pay a years Value of the Land for a Fine as the said Land is worth tempore Admissionis; And upon a Demurrer, the Question was, 1. Whether this be a good Plea or not, as 'tis pleaded?  
2. If it be good as pleaded, then whether such a Custom may be supported by Law?  
1. It was for the Plaintiff in the Writ of Error now, and in Michaelmas Term following argued that it was not a good Custom.  
The substance of whose Arguments were, that Fines are either certain or incertain; those which are incertain are arbitrary, and therefore cannot be due of Common Right, nor by Custom; for there can be no Custom for an incertain Fine, and such is this Fine; for the value of the Land cannot be known, because as this Custom is pleaded, it doth not appear whether it shall be a years value past or to come, at the time of the admittance of the Tenant.  
A Custom to assess rationabilem denariorum summam for a Fine upon an admittance, that is to say, 
13 Rep. 1.  being two years Rend of a Tenant of the yearly value of 53 s. 4 d. is no good Custom.  
A Lease is made for so many years as a third person shall name; this is altogether incertain; 
13 Edw. 3. Fitz. Abr. 273.  but when the Term is named then 'tis a good Lease, but this can be done but once.  
How can this Fine be assessed? It cannot be by jury, for than it stands in need of the Common Law, and will be therefore void; for a Custom must have nothing to support it but usage.  
1. Neither can this be a good Custom as 'tis pleaded, because all Customs are made up of repeated Acts and Usages, and therefore in pleading them, it must be laid time out of mind, which is not done here; for admissus foret hath a respect to future admissions, and are not to those which are past.  
2. Here is no time laid when this Fine shall be paid; for 'tis said Quilibet tenens qui admissus foret, etc. solvet tantam denariorum summam quantum terra valebat per Annum tempore admissionis, etc. which last words must be taken to relate to the value of the Land, and not to the time when the Fine shall be paid; so that if there be such a Custom, which is Lex loci, and not fully set forth and expressed, the Common Law will not help it by any Construction.  
2. Point. Whether such a Custom can be good by Law?  
And they argued that it cannot.  
Where the Fine is certain the Lord may refuse to admit without a tender of it, upon the prayer of the person to be admitted; 
4 Rep. 27. b.  but where 'tis incertain, the Lord is first to admit the Tenant, and then to set the Fine, the reasonableness whereof is to be determined by judges before whom the Case shall depend, or upon Demurrer, or by a jury upon proofs of the yearly value of the Land; but for non payment of an unreasonable Fine the Lord cannot enter. 
Cro. Eliz. 779. Cro. Car. 196.   
The Law admits of no Custom to be good, but such as is very certain; for incertainty in a Custom as well as in a Grant makes both void; and therefore 'tis held a void Custom for an Infant to make a Feoffment when he can measure an Ell of Cloth. 
Rol. Abr. 565. 6 Rep. 60. Davies Rep. 37.   
It may be objected, that certum est quod certum reddi potest; the meaning of which saying must be quod certum reddi potest by something which is certain; for if this Rule should be taken to be an answer to incertainties, it would destroy all the Books, which say a Custom must be certain.  
The Law is very clear, 
Fitz. Bar. 177. 2 Rol. Abr. 264.  that a Custom is void for the incertainty; therefore this Custom must be void, for the value of Land is the most incertain thing in nature, and therefore Perjury will not lie for swearing to the value.  
Sergeant Fuller and Mr. Finch contra.  
The chief Objection is the incertainty of this Custom; now if a Custom as incertain as this, hath been held good in this Court, 'tis a good Authority to support this Custom.  
And as to that it was said that a Custom for a person (whom a Copy holder should name) to have his Land after his death, and that he should pay a Fine for his admittance; And if the Lord and Tenant cannot agree about the Fine, that then the rest of the Tenants should assess it: 
1 Rol. Rep. 48. 2 Cro. 368. 4 Leon. 238. Noy 3. 2 Brownl. 85.  this was adjudged a good Custom by the Court of Common-Pleas, and affirmed upon a Writ of Error in this Court,: It was the Case of Crab and Bevis, cited in Warne and sawyer's Case. Adjornatur.  
Afterwards the first judgement was affirmed, and all the Court held the Custom to be a good Custom.   

Hacket versus Herne.  
JVdgment was had in Debt upon a Bond against Father and Son, 
Where the Defendants in the Action must join in a Writ of Error.  and afterwards the Father alone brought a Writ of Error, and the Error assingned was, that his Son was under Age; but because the Son did not join in the Errors, the Court ordered the Writ to be abated.  
If a Quare impedit be brought against a Bishop and others, and judgement be against them all, they must likewise all join in a Writ of Error, unless it be where the Bishop claims only as Ordinary.  
'Tis true, 
Rol. Abr. 929. pl. 30.  this is against the Opinion of my Lord Rolls in his Abridgement, who puts the Case, that where a Scire Facias was brought against four Executors, who pleaded plene administraverunt, the jury find Assets in the Hands of two of them, and that the other eant inde sine die; two bring a Writ of Error, and altho' at the opening of the Case it was held that the Writ should abate for that reason, because brought only by two, yet he says the judgement was afterwards affirmed, and the Writ held good.  
But there is a difference where a Writ of Error is brought by the Plaintiffs in the original Action, 
5 Co. 25. a Ruddock's Case.  and when by the Defendants; for if two Plaintiffs are barred by an erroneous judgement, and afterwards bring a Writ of Error, the Release of one shall bar the other, because they are both actors in a personal thing to charge another, and it shall be presumed a Folly in him to join with another, who might release all.  
But where the Defendants bring a Writ of Error 'tis otherwise; for it being brought to discharge themselves of a judgement, the Release of one cannot bar the other, because they have not a joint Interest but a joint burden, and by Law are compelled to join in Errors.   

Moss versus Archer.  
COvenant by an Assignee of an Assignee of Lands which were exchanged; the Breach assigned was, 
Breach not well assigned.  that a Stranger habens jus & titulum, did enter, etc.  
There was a Uerdict for the Plaintiff, and it was now moved in Arrest of judgement, that the Plaintiff had not showed a sufficient breach, for he sets forth the Entry of a Stranger, habens jus & titulum, but doth not show what Title, and it may be he had a Title under the Plaintiff himself, 
2 Cro. 315. Hob. 35.  after the Exchange made; and to prove this, the Case of Kirby and Hansaker was cited in point, and of that Opinion was all the Court.  
Nota, It was said in this Case, that an Exchange ought to be executed by either Party in their Life-time, or else it is void.   

Taylor versus Brindley.  
THE Original in Trespass was quare Clausum fregit, 
Variance between the Original and Declaration, where 'tis no Error.  and the Plaintiff declared quare Clausum & Domum fregit, and had judgement in the Common-Pleas, and a Writ of Error was brought in this Court, and the variance between the Original and Declaration was assigned for Error, and that one was not warranted by the other.  
But Sergeant Levinz argued, that because the Original was certified three Terms since, 
2 Cro. 674. 1 Rol. Abr. 790. n. 7. Cro. Car. 272. 18 Eliz. cap.  and no Continuances between it and the Declaration, therefore that could not be the Original to this Action, and that the Court might for that reason intent a Verdict without an Original, which is helped by the Statute of Jeofails. But he argued that where the Original varies from the Declaration, and is not warranted by it, 'tis not aided by this Statute: judgement was affrmed.    

DE Term. Sancti Mich. Anno 3 Jac. II. in Banco Regis, 1687.  

Wright, Chief Justice.  
Holloway, Justices.  
Powel, Justices.  
Allibon, Justices.  
Sawyer, Attorney General,  
Powis, Solicitor General.   

Mathews versus Cary, Pasch. 3 Jac. Rot. 320.  
TRespass for entering of his House and taking of a Silver Tankard. 
Where the Defendant justifies by way of excuse, he must set forth the Warrant, and that he took the Goods virtute Warranti.   
The Defendant made conusance as Bailiff of the Dean and Chapter of Westminster, for that the place where, etc. was within the jurisdiction of the Leet of the said Dean, who was seized of a Court Leet which was held there such a day, etc. And that the jury did present the Plaintiff (being a Tallow-Chandler) for melting of stinking Tallow, to the annoyance of the Neighbours, for which he was amerced, and that the Amerciament was affered to 5 l. which not being paid, the Defendant by a Mandate of the said Dean and Chapter, distreined the Tankard, etc.  
The Plaintiff replied de injuria sua propria absque hoc that he did melt Tallow to the annoyance of the Neighbours, etc. And upon a Demurrer to this Replication, it was argued this Term by Mr. Pollexfen for the Defendant, and Tremaine for the Plaintiff: and afterwards in Michaelmas- Term 1 Will. & Mariae, by Mr. Bonithan and Serjeant Thompson for the Defendant.  
It was said for the Defendant, that a Presentment in a Court Leet which concerns the person (as in this Case) and not the Free hold, 
5 H. 7.3. Fitz. Bar. 271. Bro. Abr. tit. Travers sans ceo. pl. 183. Presentment in Court, pl. 15.  was not traversable, and that the Amerciament was a Duty vested in the Lord for which he may distrain, or bring an Action of Debt. Co. Entr. 572.  
But on the other side it was said, that if such a Presentment is not traversable, the party hath no remedy; 'tis contrary to the Opinion of Fitzherbert in Dyer, 
Dyer 13. b.  who affimed the Law to be that it was traversable, and that if upon such a Presentment a Fine should be imposed erroneously, 
11 Co. 42. 1 Rol. Rep. 79.  it may be avoided by Plea, and this agrees with the second Resolution in Godfrey 's Case.  
2. It was objected to the Plea, that it was not good, for it sets forth, that the Plaintiff was amerced, and that it was affered at the Court, and so he hath confounded the Office of the jurors and Affearers together, which he ought not to do, for he should be amerced to a certain Sum, 
Hob. 129. Rol. Abr. 542.  and not in general, which Sum may be mitigated or affered by others.  
If it had been a Fine, 
8 Co. 38. 1 Leon. 142.  it need not be affered, because that is imposed by the Court; but this is an Amerciament which is the act of the Jury, and therefore it must be affered.  
3. The chiefest Exception was to the matter of the Warrant, viz. the Defendant sets forth that he seized by virtue of a Precept from the Dean and Chapter; whereas he ought to show it was directed to him from the Steward of the Court, and then to set forth the Warrant, without which he cannot justify to distrain for an Amerciament.  
And of this Opinion was the whole Court, and therefore judgement was given for the Plaintiff, in Michaelmas- Term, Primo Will. & Mariae.  
If it had been in Replevin where the Defendant made cognizance in the right of the Lord, it might be well enough as here pleaded; but where 'tis to justify by way of excuse, there you must aver the Fact and allege it to be done, and set forth the Warrant itself, 
3 Cro. 698.748. 1 Leon. 242.  and the taking virtute Warranti; for a Bailiff of a Liberty cannot distrain for an Amerciament by virtue of his Office, but he must have a Warrant from the Steward or Lord of the Leét for so doing.  
The other Exception that the Amerciament ought to be to a Sum, 
Rast. Ent. 606. Co. Ent. 665.  the Precedents are otherwise; for an Amerciament per duodecim probos & legales homines adtunc & ibidem jurat. ad 40 s. afferat ' is well enough, but the Warrant is always set forth.   

Dominus Rex versus Derby.  
THE Defendant was indicted for speaking of scandalous words of Sir J.K. a Justice of the Peace. Viz. Sir J.K. 
Indictment for Scandalous words.  is a buffle-headed Fellow, and doth not understand Law; he is not fit to talk Law with me, I have baffled him, and he hath not done my Client Justice.  
Mr. Pollexfen for the Defendant said that an Indictment would not lie for these words, because not spoken to the Party in the exceution of his Office, but behind his back; it will not lie for irreverent words, but for Libels and Writings, because such are public, but words are private offences.  
But the Court being of Opinion that an Indictment would lie where an Action would not, because it respects the public Peace: and that an Action would not lie in this Case, unless the party had a particular loss, 
Sid. 65. 2 Cio. 5 8.  and therefore it hath been held not to be actionable to call a justice of Peace Fool, Ass, Coxcomb.  
He then took Exceptions to the Form of the Indictment.  
1. There is no place of Abode laid where the Defendant did inhabit, which is expressly required by the Statute of H. 5. Viz. 
1 H. 5. cap. 5  That in Indictments there shall be addition of the Estate, Degree, etc. and of the Towns, Hamlets, Places and Counties where the Defendants dwell. And by the Statute of H. 6. 
8 H. 6. cap. 12  which gives the judge's power to amend Records in affirmations of judgements, such defects which are named in the Statute of H. 5. are excepted; and therefore where a Writ of Error was brought to reverse an Outlawry upon the Statute of 5 Eliz. for Perjury; 
2 Cro. 167.  the Defendant was Indicted by the Name of Nicholas Leech de Parochia de Aldgate, and did not show in what County Aldgate was; and for this cause it was reversed.  
2. The Caption is coram Justiciariis ad pacem dicti Domini Regis conservand ', and the word (nunc) is left out. It was the Opinion of justice Twisden, that it ought to be nunc conservand ', 
Sid. 422.  for otherwise it may be the Peace of King Stephen.  
The Council on the other side said, that it was a new Doctrine, that the King shall not have the same Remedy by an Indictment which the Subject may have by an Action; What is the meaning of the words of all Commissions, de propalationibus verborum?  
As to the first Exception, they said that the Indictment was certain enough, for the Defendant is laid to be de Almondbury in the West-Riding of Yorkshire.  
To the second Exception, they said that ad pacem conservand ' without nunc is well enough, for it cannot be intended upon this Indictment that they were justices to preserve the Peace in any other King's Reign, and what was quoted out of Siderfin, is but the Opinion of one single judge.  
This is a Scandal upon the Government, and 'tis as much as to say that the King hath appointed an ignorant Man to be a justice of Peace, for which an Indictment will lie.  
And of that Opinion was the whole Court, and gave judgement accordingly.   

Ball versus Cock.  
A Writ of Covenant did bear Teste the first day of Trinity- Term, 
Error to reverse a Fine, where the Cognisor died after the Caption, and before it passed the King's Silver.  retornable tres Trinitatis, and it was taken by Dedimus 30 Julii.  
A Writ of Error was brought to reverse this Fine, and the Error assigned was, that the Cognizor died after the Caption, and before the Enrolment at the King's Silver Office.  
It was argued by the Council for the Plaintiff in the Writ of Error, that a Fine Sur Cognizance de droit, etc. is said to be levied when the Writ of Covenant is returned, and the Concord and King's Silver (which is an ancient Revenue of the Crown pro licencia concordandi) duly entered; for though the Cognisor dieth afterwards, 
Dyer 220. b. 5 Co. 37. Cro. Eliz. 469.  the Fine is good, and the Land passeth; but if the King's Silver be not entered, the Fine may be reversed by Writ of Error; for it is an Action, and judgement, and the death of either Party abates it.  
If it should be objected that this cannot be assigned for Error, because 'tis against the Record, which is Placita terrae irrotulat. de Termino Sanctae Trinitatis anno primo Jacobi, etc.  
'Tis true, an Error cannot be assigned against the very essence of a Record, but in the matter of time it may, and so 'tis in this Case.  
'Tis like Syer's Case 32 Eliz. 
3 Inst. 230. 4 Co. Hind's Case. 10 H. 7.24.  who was indicted for a Burglary supposed to be done primo Augusti, and upon the Evidence it appeared to be done primo Septembris, and though he was acquitted of the Indictment for that reason, viz. because the judgement relates to the day of the Indictment, yet it was resolved by all the judges of England, that the very day needs not be set down in the Indictment; for be it before or after the Offence, the jury ought to find according to the truth of the Case upon the Evidence, for they are sworn ad veritatem dicendam, etc.  
This must be assigned for Error, for if the contrary be said 'tis against the Record, the Custos Brevium having returned that the Fine was taken 30 July, which could not be in Trinity- Term, for that ended 8 July, otherwise 'tis repugnant to itself.  
Econtra. It was argued, that this is not assignable for Error; 
Dyer 220. b. 12 Co. 124.  'tis true, if the Party had died before the Entry of the King's Silver, it had been Error, but if afterwards 'tis not so. Thus was the Case of Warnecomb and Carril, which was, Husband and Wife levied a Fine of the Lands of the Wife, and this was by Dedimus in the Lent Vacation, she being then but 19 years of Age; the King's Silver was entered in Hillary- Term before, and she died in the Easter- week; and upon a Motion made the first day of Easter- Term to stay the engrossing of the Fine, it was denied by the Court, for they held it to be a good Fine.  
Another reason why this is not assignable for Error, 
2 Cro. 11. Yelv. 33.  is because 'tis directly against the Record, which is of Trinity- Term, and can be of no other Term; and to prove this he cited Arundel's Case, where a Writ of Error was brought to reverse a Fine taken before Roger Manwood Esq; in his Circuit, he being then one of the justices of the; Common-Pleas, and the Dedimus was returned per Rogerum Manwood Militem, for he was Knighted and made Chief Baron the Eerm following; the Fine passed and this was afterwards assigned for Trror, that he who took the Caption was not a Knight, but it being directly against the Record, they would not intent him to be the same person to whom the Writ was directed. Adjurnatur. Afterwards the Fine was affirmed.   

Lock versus Norborne.  
UPon a Trial at Bar in Ejectment for Lands in Wiltshire, 
Verdict shall only be given in Evidence amongst privies.  the Case was thus. Viz. Marry Philpot in the year 1678. made a Settlement by Lease and Release to herself for Life, then to trusties to support contingent Remainders, then to her first, second and third Son, in Tail Male, etc. then to Thomas Arundel in Tail Male, with divers Remainders over.  
It was objected at the Trial, that she had no power to make such Settlement, because in the year 1676. her Husband had settled the Lands in question upon her for Life, and upon the Issue of his Body, etc. and for want of such Issue, then upon George Philpot in Tail Male, with several Remainders over, the Remainder to Mary Philpot in Fee, Proviso that upon the tender of a Guinea to George Philpot, by the said Mary, the Limitations as to him should be void.  
George Philpot having afterwards made a Lease of this Land, to try the Title, the trusties brought an Ejectment; but because the tender of the Guinea could not be proved, there was a Verdict for the Defendant.  
And now Mr. Philpot would have given that Verdict in Evidence at this Trial, but was not suffered by the Court, for if one Man hath a Title to several Lands, and if he should bring Ejectments against several Defendants, and recover against one, he shall not give that Verdict in Evidence against the rest, because the Party against whom that Verdict was had may be relieved against it, if 'tis not good, but the rest cannot, tho' they claim under the same Title, and all make the same defence.  
So if two Tenants will defend a Title in Ejectment, and a Verdict should be had against one of them, it shall not be read against the other, unless by Rule of Court.  
But if an Ancestor hath a Verdict, the Heir may give it in Evidence, because he is privy to it; for he who produceth a Verdict must be either party or privy to it, and it shall never be received against different persons, if it doth not appear that they are united in Interest.  
Therefore a Verdict against A. shall never be read against B. for it may happen that one did not make a good defence, which the other may do.  
The tender of the Guinea was now proved.    

DE Term. Sancti Hill. Anno 3 Jac. II. in Banco Regis, 1687/8.  

Wright Chief Justice.  
Holloway Justices.  
Powel Justices.  
Allibon Justices.   

Powis, Attorney General.  
Wm. Williams, Solicitor General.   
THIS Vacation Sir Robert Sawyer had his Quietus, and Sir Thomas Powis was made Attorney General, and Sir William Williams of Greys-Inn, was made Solicitor General.  

Rex versus Lenthal.  
AN Inquifition was taken in the second year of this King, under the Great Seal of England, by which it was found that the Office of Marshal of the Kings-Bench did concern the Administration of justice, and that Mr. Lenthal was seized thereof in Fee, and that upon his Marriage he had settled the said Office upon Sir Edward Norris and Mr. Coghill, and their Heirs in Truff that they should permit him to execute the same during his Life, etc.  
That the said trusties had neglected to give their attendance, or to execute the said Office themselves, that this Canveyance was made by Mr. Lenthal without the notice of this Court; that he received the Profits, and afterwards granted the said Office to Cooling for Life.  
That Cross and his Wife had obtained a judgement in this Court against Bromley, and had sued forth Erecution for the Debt and Damages, for which he was committed to the custody of the said Cooling, and being so in Execution did go at large.  
They find that Cooling had not sufficient to answer Cross and his Wise for the said Debt, etc. whereupon they impleaded Mr. Lenthal in the Common-Pleas, for 121 l. 2 s. 4 d. to answer as superior; that at the Trial Mr. Lenthal gave this secret Deed of Settlement in Evidence, whereupon the Plaintiffs in that Action were nonsuited ad dampnum, etc.  
They find that Cooling went out of the said Office, and the trusties neglecting the execution thereof, Mr. Lenthal granted the same to Glover for Life; that during the time he executed this Office, one Wordal was convicted of Forgery, and committed to his Custody, and that he permitted him voluntarily to Escape, by which the said Office was forfeited to the King.  
The King had granted the Office to the Lord Hunsdon.  
Sir Edward Norris and Mr. Coghill come in and plead that Mr. Lenthal was seized in Fee, and that he made a Settlement of the Office upon his Marriage with Mrs. Lucy Dunch (with whom he had 5000 l. Portion) viz. upon them and their Heirs in trust, prout in the Inquisition, and that he did execute the Office bytheir permission.  
Mr Lenthal pleads and admits the Grant to Sir Edward Norris and the other Trustee, bearing date such a day, etc. but saith, that the next day afterwards, viz. the 10th day of August a Trust of the said Office was declared by another Deed, viz. to himself for Life, with Remainders over, and that by virtue thereof, and the consent of the trusties, he took upon him the execution of the said Office, and was thereof possessed either by himself or his Deputy, until the time of the Inquisition taken; then he traversed that the Escapes were voluntary (but did not answer the concealing of the Grant) and concludes, viz. per quod petit, that the King Hands may be amoved, etc.  
The Attorney General demurred to the Plea of the trusties, he likewise demurred to the Plea of Mr. Lenthal, and took issue that the Escapes were voluntary.  
It was argued this Term and Trinity following, by Council on both sides, and as to the matter of Law, they made these Points.  
1. That this Office cannot be granted in Trust.  
2. The Escapes found in the Inquisition, and not answered by the trusties, are sufficient causes of Forfeiture of this Offce.  
3. Another Point was raised, whether the assignment of this Office to trusties (admitting it could be so granted) and their declaration of the Trust, did create an Estate at will in Mr. Lenthal.  
If it was a Tenancy at will.  
1. Then whether Mr. Lenthal had done any thing to determine his will?  
2. Whether he can by Law make a Deputy?  
3. Whether the assigning of this Trust without giving notice thereof to this Court, be a Forfeiture?  
1. This Office cannot be granted in Trust, 
Jones 128.  because 'tis a personal Inheritance, and will not pass by such Conveyances as are used to convey Lands; so is my Lord of Oxford 's Case, in which it was held that a Covenant to stand seized of an Office, is void; neither can Mr. Lenthal take upon him the execution of this Office by the consent of the trusties, for that cannot be without Deed.  
If the Law should be otherwise this inconvenience would follow, viz. Mr. Lenthal might grant the Office to another, without leave of the Court, and the Grantee might suffer voluntary Escapes, having no valuable Interest to answer the parties injured, who must then sue Mr. Lenthal and he hath no Estate in him, for he hath conveyed the Inheritance to the trusties, and if they should be likewise sued, no recovery could be against them, because they are only nominal?  
'Tis almost like the Grant of an Office of chief Prothonotary of the Court of Common-Pleas, to two persons for Life, 
18 Ed. 4. f. 7.  which cannot be good, because the Rolls of the Court cannot be in the keeping of two persons at one time.  
It hath been adjudged that this very Office cannot be granted for years, 
Cro. Car. 587. Jones 437.  because 'tis an Office of Trust and daily Attendance: and such a termor for years may die intestate, and then it would be in suspense till Administration is committed, which is the act of another Court.  
2. Point; That the Escapes found in the Inquisition and the non-attendance of the trusties, are sufficient cause of Forfeiture.  
'Tis true, at the Common-Law Debt upon an Escape will not lie against the Gaoler, that Action was afterwards given by the Statute of W. 2. For before that Act, the only remedy against the Gaoler was to bring an Action on the Case against him, founded upon a wrong done: 
Dyer 273.  But now Debt will lie, and if the party is not sufficient at the time of the Escape, 
2 Inst. 382.  respondeat superior.  
The Marshal who executes this Office, be it by right or wrong, is answerable to the King and his People for Escapes: If they are voluntary, 'tis a Forfeiture of his Office, nay, if a Deputy suffer such Escapes, 'tis a Forfeiture by the Principal, unless such Deputation be made for Life, and then the Grantee for Life only forfeits the Office.  
As to the non-attendance of the trusties, if Mr. 
39 H. 6.32.  Lenthal be Tenant at will, and hath granted this Office to another for Life, this is a determination of the Tenancy at will, and a Forfeiture as to him.  
Now this Grantee for Life cannot be said to be a Deputy, for such a Grantee himself cannot make a Deputy, and therefore a fortiori, a Tenant at will cannot do it.  
But admitting he should be Deputy, yet a Forfeiture by him is a Forfeiture by his Superior; and therefore Mr. Lenthal 's tenancy at will being gone, the trusties ought to attend, and their non-attendance ought to be a Forfeiture.  
The non-attendance of an Officer, 
Cro. Car. 491.  who was only a Searcher in a Port Town, was adjudged a Forfeiture; much greater is the Fault of that Officer who hath the administration of justice, if he do not give his attendance.  
Besides, 
39 H. 6.34. a. 9 Co. 46. Dyer 198. Sid. 81. Dyer 150, 151.  if they do not attend, by consequence they cannot act in the Office, and non-feazance is as sufficient a cause of Forfeiture as any other mis-behaviour whatsoever.  
But if the trusties had given attendance, they are persons inexperient, and therefore incapable to execute this Office, for which they may be lawfully refused by this Court.  
Mr. Pollexfen chief insisted upon the point of Pleading, that the matter found by the Inquisition was not answered by the Plea.  
First, he excepted that the Defendant had not by his Plea entitled himself to any Estate in this Office, 
1 Leon. 202. 2 Inst. 695. Stamf. 62, 64. 2 Leon. 123.  and therefore he could not traverse the Title of the King, without making a Title to himself, for why should he desire that the King's Hands may be amoved, and he restored to his Office, if he hath not shown a Title to it?  
His pleading of this Deed of Trust by which he is permitted to receive the Profits, etc. during Life cannot create such an Estate in him, as will be executed by the Statute of Uses; therefore he can have no Estate for Life; for if a Man is seized in Fee of an Estate, and makes a Declaration thereof in Trust for J. S. this is no colour to make an Estate for Life in J. S.  
The Defendant hath therefore no more than a Trust in this Office, which is nothing in the Eye of the Law, and for which there is no remedy but by Subpoena in Chancery, so that being only a Cestui que trust, he hath neither jus in re, nor ad rem.  
He cannot be Tenant at will, for he is not made so by the Deed of Trust.  
There is a great deal of difference between Evidence and Pleading; for this very Deed may be an Evidence of an Estate at will, but 'tis not so in pleading; therefore he ought to have pleaded that coram praetextu he was possessed of the Office, and took the Profits, etc. but he having otherwise pleaded, and not entitled himself to any Estate therein, he ought to be laid aside as an incompetent person.  
The Plea of Sir Edward Norris is likewise insufficient; for it sets forth the Deed of Settlement, etc. coram praetextu (the Defendant) juxta fiduciam in eo positam, was possessed of the Office ad eorum voluntatem.  
Now an Office is a thing which lies in Grant, 
1 Leon. 219.  and cannot be transferred from one to another without Deed, and here is no Deed pleaded; and as no Estate at will can be granted of an Office without Deed, so likewise there cannot be a deputation of such Offce without it.  
If then there can be no Tenant at Will of an Office, but by Deed, and no such Deed is pleaded, than Mr. Lenthal had no power to make a Deputation to Cooling; but neither Tenant at will, nor Tenant for Life can make a Deputy, if in the very Grant made to them, there is not an express Clause for the execution of the Office per se vel sufficientem Deputatum suum.  
The substance of all which is, viz. First, here is no Tenant at will: But admitting him to be so, he hath no authority to make a Deputy, and if he should appoint a Deputy, he executes the Office without Authority, and may suffer Escapes.  
Lastly, by pleading of this Deed, he hath alleged that the Estate was in the trusties, and that they permitted him to enjoy the Office coram praetextu, he did execute it, and receive the Profits; now this is too general, and an issue cannot be taken upon such a Plea; he should have pleaded positively, that it was demised to him at will, and that he made a Deputy; and then also the authority in rolls is against him, where 'tis held, 
2 Rol. Ab …  that the Marshal of the Kings-Bench may grant the Office for Life, but cannot give power to such grantee to make a Deputy.  
Now if a Tenant for Life cannot make a Deputy, certainly a Tenant at will hath no power so to do.  
But suppose a Deputy might be made, his neglect in the execution of the Office, shall make a Forfeiture of the Estate of the Grantee for Life.  
It cannot be reasonably objected in this Case, 
Rol. Abr. 155.  that 'tis any hardship for Mr. Lenthal to lose this Office for any defect in Pleading; for admitting the Plea to be good; yet there is a cause of Forfeiture, because the Marshal of the King's Bench being a ministerial Officer, is required by Law to be a person of such Ability as to answer all Escapes, that so Men may have the benefit of their Suits, for otherwise he having nothing to answer they may lose their Debts. Now here by a secret Grant Mr. Lenthal hath conveyed the Estate out of himself, and yet still continues Officer in possession, by which means the People are deprived of the Remedy which the Law provides for them, and this is a sufficient cause of Forfeiture.  
Then as to the trusties, they have not said any thing of the Escapes; 'tis true, Mr. Lenthal hath traversed those which are alleged to be voluntary, but that signifies nothing to them, because they cannot take any benefit by the Plea of another, for every one must stand and fall by his own Plea.  
If therefore their non-attendance be a Forfeiture, the intruders shall not help them, because they come in without any colour of Right.  
But the Council on the other side argued this last Point first, 
E contra.  which was thus.  
Viz. A Man seized of the Inheritance of the Office of Marshal of this Court, conveys it in Trust, the cestui que trust enjoys it and receives the Profits; the Question now is, whether the non-attendance of the trusties, being never required by the Court, be a Forfeiture of this Office?  
And as incident to this Question, it was debated whether Mr. Lenthal was Tenant at will?  
'tis no Forfeiture, for they are not bound to attend.  
It cannot be denied but that this Office doth concern the Administration of justice, but 'tis to be considered what Estate Mr. Lenthal hath in it.  
He had once an Estate in Fee, but if it had been for Life or in Tail, it may be settled as this is done, but not for years, because it may then come to an Administrator.  
If Mr. Lenthal be the cestui que use, 
Co. Lit. 404. Godb. 64.  than he hath an Estate of which the Law takes notice, for he may be a juror at the Common Law.  
'Tis plain that he hath an Estate created by operatian of the Law, for he is Tenant at Will, and for that reason the attendance of the trusties is not necessary; but if the Estate had been directly granted to them, than the Office had been forfeited for Non-attendance.  
It cannot be denied, but that this Office may be granted at Will, for so is Sir George Reynell's Case; 
9 Co. 98.  now if it may be granted at Will by the Possessor, it may likewise be so granted by him who hath an Estate created by the Law, for fortior est dispositio legis quam hominis; and in this Case no Inconveniency would happen; for if the Will be determined then the Grantor is the Officer.  
When Mr. Lenthal had assigned this Office to the trusties, and they by a subsequent Deed had declared it to be in trust for him, and that he should take the Profits during life, he hath thereby a legal Estate at Will; for a Cestuy que Trust by Deed is a Tenant at Will.  
It hath been objected, that a Tenancy at Will of an Office is void, and to prove this a Case in Jones' Rep. was cited, 
Jones 128.  but the reason of that Case is guided by the particular nature of that Office which could not be aliened without the consent of the King.  
If this Office is not alienable in its nature then Mr. Lenthal hath still the Fee-simple, but that will not be admitted.  
But this is not only a bare Estate at Will, but a Trust for Life, and such a Trust which hath a legal construction; 
Godbolt 6●  for if a Feoffment be made in Trust that he should convey the Estate to another which the Feoffee afterwards refused to do, the Cestuy que Trust may bring an Action against him; so if he should be returned on a jury 'tis no Exception to say that he hath not liberum tenementum, and therefore he is not an incompetent person to have the charge of Prisons if he may be impanelled on a jury to try men for their Lives.  
1. Then as to the first Question upon the last point, whether Mr. Lenthal had done any thing to determine his Tenancy at Will.  
The Grant of this Office by him to Cooling will not amount to a determination of his Will, because 'tis a void Grant.  
'Tis true, this is denied by my Lord Coke in his Comment upon Littleton, 
Sect. 71.  where he saith, If Tenant at Will grant over his Estate, and the Grantee entereth, he is a Disseisor, for though the Grant be void, yet it amounts to a determination of his Will.  
What ground he had for such an Opinion is not known; the Year Books quoted in the Margin will not warrant it, for they are in no sort parallel.  
That Case in the 27th of H. 
27 H. 6.3.  6. is no more than Tenant at Will cannot grant over his Estate, because he hath no certain or fixed Interest in it; and much to the same purpose is the Book of 22 E. 
22 E. 4.5.  4. there cited.  
But suppose this to be a void Grant, and to amount to a determination of the Tenancy at Will, yet if the trusties had no notice of it, that shall not determine their Estates.  
A Devise to an Executor that he shall have the oversight of the Testators Estate till his Daughter should come of Age; 
Yelv. 73.  the Executor made a Lease at Will rendering Rent; before the year expired the Daughter came of age, to whom the Tenant at Will attorned; the Executor brought an Action of Debt against him for the Rend arrear, it was held that this Attornment to the Daughter was no determination of his Will, for it would be of ill consequence to the Lessor if such a Tenant should determine his Will a day or two before the end of the year, who had enjoyed all the Profits of the Land.  
2. Whether he may make a Deputy?  
'Tis true, a judicial Officer cannot make a Deputy unless he hath a Clause in his Patent to enable him, because his Judgement is relied on in matters relating to his Office, which might be the reason of the making of the Grant to him; neither can a Ministerial Officer depute one in his stead, if the Office be to be performed by him in person, but when nothing is required but a Superintendency in the Office he may make a Deputy.  
This appears more evident in the common Case of a Sheriff, who is an Officer made by the King's Letters Patents, and 'tis not said that he shall execute his Office per se vel sufficientem Deputatum suum, 
Roll. Rep. 274. 1 Leon. 146. 3 Leon. 99 Cro. Eliz. 173.  yet he may make a Deputy, which is the under-sheriff, against whom Actions may be brought by the Parties grieved.  
And such a Deputy may be made without a Deed, for he claims no Interest in the Office but as a Servant, 
Cro. Eliz. 67. 10 Co. 192. a.  and therefore where an Action on the Case was brought against the Deputy of a Sheriff for an Escape, who pleaded that the Sheriff made him his Deputy to take Bail of Prisoners, and that he took Bond, etc. and shown no Deed of Deputation, yet the Plea was held good upon a Demurrer.  
3. Whether the Assignment of this Trust without giving notice to this Court be a Forfeiture?  
Tenant in Fee simple may do it, for he hath a power so to do by reason of the Dignity of his Estate.  
He who grants this Office without acquainting of this Court therewith must remain an Officer still, and is subject to all Duties and Attendance till the Court hath notice of the Grant.  
But there is no occasion of acquainting the Court in this Case, for upon the Grant made to the trusties by Mr. Lenthal he is still the Officer though he hath not the same Estate.  
It was objected that Sir Edward Norris, etc. hath not said any thing to the Escapes; but that doth neither concern Mr. Lenthal or the trusties; 
2 Cro. 17.  for if he be Tenant at Will they are not answerable for his neglect, for 'tis a personal Tort in him.  
If Tenant for years makes a Feoffment 'tis a Forfeiture of his Estate; but if he makes a Lease and Release, though 'tis of the same operation, yet it will not amount to a Forfeiture.  
Now if any Escapes should happen there is a plain remedy for the Parties aggrieved; for if Tenant at Will remaineth in possession of an Office, and suffers voluntary Escapes, his Office shall be seized into the Hands of this Court, than he in the Reversion must make his Claim, and when that is done, he is an Officer nolens volens, and this was the Duke of Norfolk's Case.  
Now though these Escapes are found by the Inquisition to be voluntary, yet they are answered in the Plea, for that part of the Inquisition is traversed, and that they were vi & armis, and this being not yet tried the Court cannot give judgement thereon.  
If there be many negligent Escapes these shall not amount to a Forfeiture; as if a Rebel should break Prison or the Prison should be on Fire, those are negligent, but the Officer should not be so much as fined.  
But if it should be a Forfeiture the Neglect must be particularly alleged, for the Word Neglect is too general. Adjornatur. 
5 E. 4.27. Dyer 66.    

Anonymus.  
A Man was indicted for using of a Trade not being an Apprentice, 
An Indictment quashed for misreciting of a Statute.  against the Statute of 5 Eliz. cap. 4. And now a Motion was made to quash it, because the Act gives power to two justices of the Peace, Quorum unus, to hear and determine Offences committed against any branch thereof, either by Indictment or Information before them in their Sessions; and 'tis not said that one of the justices, before whom this Indictment was taken, was of the Quorum.  
This Objection was answered by the Court that the Sessions cannot be kept without one justice of the Quorum.  
The Act saith, That it shall not be lawful to any person other than such who did then lawfully use any Art, Mystery or Manual Occupation, to set up any Trade used within this Realm except he had been an Apprentice for seven years, etc. and 'tis not averred that the Trade mentioned in the Indictment was a Trade used before the making of the Act.  
This seemed to be a material Objection, but the Indictment was quashed for misreciting of the Statute.   

Price versus Davies.  
ERror to reverse a Fine taken by Commission, and the Error assigned was, that the Cognizor died before the return of the Writ of Covenant.  
But this Point was not argued, because justice Allybon was of Opinion that the Plaintiff in the Errors had not well entitled himself by the Writ; for it was brought by him ut Consanguineus & Haeres scilicet Filius, etc. but doth not show how he was of Kindred.  
To this Objection Sir William Williams the Solicitor General, replied, that if a Descent be from twenty Ancestors 'tis not necessary to say, that he was Son and Heir of such a one, who was Son and Heir of such a one, and so to the twentieth Ancestor.  
Agreeable to this are all the Precedents; in Formedons 'tis only said that Jus descendit. Adjornatur.   

The Countess of Plymouth versus Throgmorton.  
ERror to reverse a judgement in the Common Pleas in an Action of Debt upon a Mutuatus brought by Mr. 
Contract, where 'tis entire shall not be separated in an Action of Debt.  Throgmorton as Executor to Sir Edward Biggs, against the Countess as Administratrix of the Earl of Plymouth, wherein the Plaintiff sets forth a Writing by which the Earl had given power to Sir Edward to be the Collector and Receiver of his Money and Rents, and that he promised to allow him 100 l. per Annum for his pains, and in default of payment thereof that Sir Edward should detain the same, which Writing was in these Words following, viz.  
I do direct and appoint Sir Edward Biggs to take and receive to his own use 100 l. of lawful Money of England out of the first Money which he shall receive of mine.  
The Action was brought for 75 l. being his Salary for three quarters of a year, and judgement by Nil dicit.  
It was argued this Term, and in Easter Term by Council on both sides.  
It was agreed on all sides, that the Earl left sufficient Assets to satisfy all his Bond Creditors, but not enough to pay Debts upon simple Contract.  
First it was said for the Plaintiff in the Errors, that no Action of Debt will lie against an Executor upon a Mutuatus, 
11 Co. Godfrey's Case.  because the Testator might have waged his Law, but this was not much insisted on.  
2. That admitting an Action would lie, yet this is an erroneous judgement, because the Suit was for 75 l. for three quarters Salary, when by the Writing Sir Edward was to serve the Earl a whole year, and this being an entire Contract shall not be separated.  
Therefore he cannot be well entitled to the Actionn unless his Testator had served a year, and he had averred it so in his Declaration.  
As where a Covenant was to pay 2 s. 
Yelv. 133. 7 Co. 10. Allen 9  for copying every Choir of Paper, and the Breach assigned that he copied 4 Choir and 3 sheets, for which 8 s. and 3 d. was due to the Plaintiff; 'tis true, he had judgement, but it was reversed because it was an entire Covenant of which no apportionment could be made pro rata.  
3. That which was chief insisted on was, to make these words amount to an Obligation, that so it might be satisfied amongst the Bond Creditors.  
But those who argued for the Plaintiff in the Errors said, that it cannot be an Obligation, for it was only a bare Letter of Attorney, and an Authority and no more; for there were no words to oblige the Earl, or which can make a Warranty, and therefore if the Money was not received, the Party to whom the Note was given could not resort back to him, who made it, had they been both living, neither shall the Plaintiff now to his Administratrix.  
Like the common Cases of the assigning of judgement, if the Assignee doth not receive the Money he cannot have an Action against the Assignor, who only directs and appoints him so to do.  
But on the other side, 
Ex parte Def.  the second Objection was thus answered, viz. That this being only an Executory thing the Plaintiff may now bring an Action for so long time as his Testator served, and this may be apportioned secundum ratam; if the Law should be otherwise, the Case of all Servants would be bad, for they are generally hired for a year and not usually serve so long.  
In an Assumpsit to pay for a years board, 
Sid. 225.  and the Plaintiff had declared only for three quarters of a year, but yet had judgement because (as the Book saith) if there be any variance in the Agreement 'tis for the advantage of the Defendant.  
The 3d. 
Vaughan 92, 93. Pl. Com. 182. Dyer 21.  Objection answered, viz.  
When a Man is indebted to another by simple Contract, which is aknowledged by Deed, an Action of Debt will lie against his Executor, for any thing which is under Hand and Seal will amount to an Obligation especially where the Debt is confessed.  
Now there are words in this Deed to show that Money was due, and that makes it a Bond.  
But the Court was of Opinion, that this was an entire Agreement, and therefore the Action not well brought for three quarters Salary, and for this reason the judgement was reversed, Nisi, etc.   

Chapman versus Lamphire.  
AN Action on the Case was brought for scandalous words spoken of the Plaintiff, 
Words spoken of a Carpenter, where actionable.  who declared that he was a Carpenter, and a Freeman of the City of London, and that he got great Sums of Money by buying of Timber and Materials, and by building of Houses, and that the Defendant having discourse of him and of his Trade spoke these words, viz. He is broken and run away, and will never return again.  
There was a Verdict for the Plaintiff, and a Motion was now made in arrest of judgement, for that a Carpenter was not a Trade within the Statute of Bankrupts; and a day being given to speak to it again,  
Mr. Pollexfen argued, that before the Statutes made against Bankrupts words spoken reflecting upon a man in his Trade were actionable even at the Common Law, because it might be the occasion of the loss of his Livelihood; 
1 Rol. Abr. 59 pl. 6. Hutton 60.  and therefore it was actionable to say of a Scrivener, that he is broken and run away, and dares not show his Face; and yet a Scrivener was not within the Statutes of Bankrupcy before the Act of 21 Jac. therefore the Action must lie at the Common Law, because words disparage him in his Trade.  
But the Council for the Defendant said, that these words were not actionable, for they do not tend to his disparagement, he may be broke and yet as good a Carpenter as before.  
The Case of one Hill in 2 Car. 
Latch. 114.  in this Court was much stronger than this; the words spoken of him were, viz. Hill is a base broken Rascal, and hath broken twice already, and I will make him break the third time; the Plaintiff had judgement, but it was arrested.  
A Carpenter builds upon the Credit of other men, and so long as the words do not touch him in the skill and knowledge of his Profession they cannot injure him.  
Chief justice. The Credit which the Defendant hath in the World may be a means to support his skill, for he may not have an opportunity to show his Workmanship without those Materials, for which he is entrusted.  
The judges were divided in Opinion, two against two, and so the Plaintiff had his judgement, there being no Rule made to stay it, so that he had his judgement upon his general Rule for judgement; but if it had been upon a Demurrer or Special Verdict, than it would have been adjourned to the Exchequer Chamber.   

Goring versus Deering.  
IN an Appeal for the Murder of Henry Goring Esq; 
Auterfoits convict of Manslaughter no good Plea in an Appeal for Murder.  brought by his Widow.  
The Defendant pleaded that he was indicted for the said Murder at the Sessions-house in the Old Bailie in Middlesex, that he was found guilty of Manslaughter, and not of Murder, prout patet per Recordum, that he was Clericus & paratus fuit legere ut Clericus, if the Court would have admitted him, and that he is the same person, etc.  
To this Plea the Appellant demurred.  
The truth of this Case was, that after the Conviction and before the Sentence an Appeal was brought, so that the Defendant had not an opportunity to pray his Book.  
It was argued by Mr. Pollexfen for the Appellant, and by Sir George Treby for the Appellee.  
If the Statute of 3 H. 
3 H. 7. c. 1.  7. was not in the way, this Plea might be a good Bar to the Appeal, because before the making of that Law, Auterfoits convict, etc. had been a good Plea, but now that Statute deprives the Defendant of that benefit; for 'tis enacted, That if any man be acquitted of Murder at the King's Suit, or the Principal attainted, the Wife or next Heir to him so slain, may take and have their Appeal of the Murder within a year and a day after the said Murder done, against the said persons so acquitted or attainted if they be alive, and the Benefit of 
* Nota, At this time Clergy was allowed for Murder, but now taken away by the Statute of 23 H. 8. c. 1. Hales Pl. Cor. 232.  Clergy before not had.  
Now though the Party be neither acquitted or attainted, but is only convicted of Manslaughter, yet the word Attaint in this Statute signifies the same with Convict, and this appears by the penning of the Act in that Clause which mentions the benefit of Clergy, viz.  
That if any man be attainted of Murder the Heir shall have an Appeal if the benefit of Clergy be not had.  
Now an Attainder supposeth a Conviction, for one is the consequence of the other, and if it should not signify the same thing in this place, than that Clause would be in vain, because if it should be taken for the judgement given upon the Conviction, then 'tis too late for the Party to have any benefit of his Clergy.  
Thus it was held in the second Resolution of Wrote and Wiggs Case that the word Attaint in this very Act shall not be intended only of a person, who hath judgement of Life, 
4 Co. 46. a.  but also of one Convict by Confession or Verdict. 'Tis true, 
2 Anders. 68  'tis said in that case and so likewise in Holecroft's Case that Auterfoits convict of Manslaughter upon an Indictment of Murder is a good Bar to an Appeal at the Common Law, as well as if the Clergy had been allowed; the reason may be because in both those Cases the judgements were by Confession, so that the Court ought to have granted the Clergy; but this is a Conviction by Verdict which altars the Case.  
E contra. Auterfoits convict is a good Plea at the Common Law in all other Cases (Treason only excepted) at this day.  
it appears by the Statute of H. 7. that the year and day which was the time allowed for the Appeal, and in which time the King's Indictment could not be tried was an usage, but not a Law, therefore that Act provides that the King shall proceed upon the Indictment within the year and a day, and not stay for the Appeal of the Party.  
If the Party be attainted or acquitted, the Wife or next Heir shall have an Appeal, but not if he be convicted.  
But now admitting that the word Attaint hath the same signification with the word Convict, yet this is a good Plea both within the Words and the Equity of the Statute.  
This appears upon the Construction of that Law, which must be expounded according to the vulgar Sense and signification of the words, and therefore where the Statute saith, That an Appeal lies where the benefit of Clergy is not had (is that it is not had de Jure) but the Clergy in this Case was de Jure, and the Defendant was ready to read if he had been admitted thereunto by the Court.  
Thus is the Statute of Malbridge about the taking away of Wards, viz. Si parents conqueruntur, that is, if they had cause to complain.  
2. This Statute hath been expounded according to Equity, for though it gives an Appeal to the Wife or next Heir of him slain, yet if a Woman be killed, her next of Kin shall bring an Appeal.  
Therefore by the same Equity these words, viz. (The benefit of Clergy not had) shall be construed had by the Grant of the Court; 
Co. Ent. 355.  for if a Man be indicted without the addition of Clerk, he cannot demand his Clergy unless the Court ask him; but if he be indicted with that addition than he may demand it, because 'tis supposed by the Court that he can read.  
That this Appeal was not well brought these Exceptions were taken grounded upon the Statute of Gloucester by which seven things are required in an Appeal of Murder. 
6 E. 1. ca 9   
That the Appellor declare the Fact, the Year, the Day, the Hour, the Year of the King, the Town where the Fact was done, and with what Weapon the Party was slain.  
Now in this Case there is a defect in two of the things required by that Statute.  
1. That of the Hour which is laid too general, for 'tis circa horam octavam, which is not certain enough.  
2. They have laid no Vill, for 'tis that the Defendant did assault the Husband of the Appellant in Parochia Sancti Martini in Campis; now though that word Parochia has crept into Fines and Recoveries and likewise into Indictments, it must not be allowed in Appeals.  
There may be several Vills in one Parish, and though this is ruled good in Indictments it ought not to be so here, because of the difference between an Indictment and an Appeal; 
Stamf. 80. b. Doct. & Stud. 48.  for in Indictments you need not mention the Hour, but it must be done in Appeals.  
A Parish is an Ecclesiastical Division, and though such may be a Vill, 'tis not necessary Ex vi termini that it should be so.  
But afterwards in Trinity-Term 4 Jac. the Chief justice delivered the Opinion of all the judges (except justice Street) who were assembled for that purpose at Serjeants-Inn, that this was no good Plea, and that the Court ought not to ask the Prisoner what he had to say, and so to let him into the benefit of his Clergy: Tamen quaere, for 'tis otherwise resolved.   

The Company of Horners versus Barlow.  
DEBT upon a By-Law wherein the Company set forth, 
A By-Law restrained to London and not to extend farther.  that they were incorporated by Letters Patents of King Charles I. and were thereby empowered to make By-Laws for the better Government of their Corporation, and that the Master, Warden and Assistants of the Company made a Law, viz. That two Men appointed by them should buy rough Horns for the Company, and bring them to the Hall there to be distributed every Month by the said Master, etc. for the use of the Company; and that no Member of the Company should buy rough Horn within four and twenty miles of London but of those two Men so appointed, under a Penalty to be imposed by the said Master, Warden, etc. That the Defendant did buy a quantity of rough Horn contrary to the said Law, etc.  
There was judgement in this Case by default.  
And for the Defendant it was argued that this was not a good By-Law.  
1. Because it doth restrain Trade, 
11 Co. 54. Hob. 210.  for the Company are to use no Horns but such as those two Men shall buy, and if they should have occasion for more than those Men should buy, then 'tis plain that Trade is thereby restrained.  
2. The Master, etc. hath reserved a power which they may use to oppress the Poor, because they may make what Agreements they will amongst themselves, and set unreasonable prices upon those Commodities, and let the younger sort of Tradesmen have what quantity and at what rates they please.  
To which it was answered by Sergeant Thompson.  
First, This By-Law is for the encouragement of Trade, because the Horns are equally to be distributed when brought to the Hall for the benefit of the whole Company.  
But the material Objection was, that this being a Company incorporated within the City of London, they have not jurisdiction elsewhere, but are restrained to the City, and by consequence cannot make a By-Law which shall bind at the distance of four and twenty miles; for if they could make a Law so extensive they might by the same reason enlarge it all over England, and so make it as binding as an Act of Parliament, and for this reason it was adjudged no good By-Law.   

Sir John Wytham versus Sir Richard Dutton.  
ASsault and False Imprisonment, 14 Octob. 36 Car. 2. etc.  
The Defendant as to the Assault before the 6th day of November pleads Not-Guilty, and as to the False Imprisonment on the said 6th day of November in the same year he made a special justification, viz.  
That 28 Octob. 32 Car. 2. etc. the King by his Letters Patents did appoint the Defendant to be Captain general and Chief Governor of Barbadoes, and so sets forth the Grant at large, by which he appoints twelve Men to be of the King's Council during pleasure, of which the Plaintiff Wytham was one; that the Defendant had also power by the advice of that Council to appoint and establish Courts, judges and justices, and that the Copies of such Establishments must be sent hither for the King's Assent, with power also to establish a Deputy-Governour; that by virtue of these Letters Patents the Defendant had appointed Sir John Wytham to be Deputy-Governour of the said Island in his absence, and that he being so constituted did male & arbitrary execute the said Office.  
That when the Defendant returned to Barbadoes, viz. 6 Novemb. 35 Car. 2. he called a Council, before whom the Plaintiff was charged with male Administration in the absence of the Defendant, viz. That he did not take the usual Oath for observing of Trade and Navigation; that he assumed the Title of Lieutenant Governor, and that Decrees made in Court were altered by him in his Chamber: Upon which it was then ordered that he should be committed to the Provost Marshal, until discharged by Law, which was done accordingly; in whose Custody he remained from the 6th day of November to the 20th of December following which is the same Imprisonment, etc.  
To this Plea the Plaintiff demurred, and the Defendant joined in Demurrer.  
Mr. Pollexfen argued for the Plaintiff, and Sergeant Thompson for the Defendant.  
1. It was said for the Plaintiff, that the Causes of his Commitment (if any) yet were such which they ought not meddle withal, because they relate to his Mis-behaviour in his Government, for which he is answerable to the King alone.  
But supposing they might have some cause for the committing of him, this aught to be set forth in the Plea that the Plaintiff might answer it; for to say he did not take the Oath of Deputy Governor in what concerned Trade and Navigation is no cause of Commitment, because there was no Body to administer that Oath to him, for he was Governor himself.  
Then to allege that he did alter in his Chamber some Decrees made in the Court of Chancery, that can be no cause of Commitment for the Governor is Chancellor there.  
Besides the Defendant doth not show that any Body was injured by such alterations, neither doth he mention any particular Order but only in general, so 'tis impossible to give an Answer to it.  
2. He doth not allege that the Plaintiff had made or done any of these things, but that he was charged to have done it, and non constat whether upon Oath or not.  
The Governor hath a large power given by these Letters Patents to make Laws such as he by consent of a general Council shall enact. 
Ex parte Def.   
The Fact is set forth in the Plea, the Plaintiff was committed by virtue of an Order of Council, until he was brought to a general Court of Oyer and Terminer by which Court he was again committed.  
That the Court had power to commit him is not denied, for the King is not restrained by the Laws of England to govern that Island by any particular Law whatsoever, and therefore not by the Common Law, but by what Law he pleaseth.  
For those Islands were gotten by Conquest or by some of his Subjects going in search of some prize and planting themselves there. 
Calvin 's Case.   
The Plaintiff being then committed by an Order of Council till he should be discharged by due course of Law, this Court will presume that his Commitment was legal.  
The Court were all of Opinion that the Plea was not good, so judgement was given for the Plaintiff; but afterwards 5 Willielmi & Mariae this judgement was reversed by the House of Peers.   

Sir Robert Jefferies versus Watkins.  
THIS was an Action brought for a Duty to be paid for weighing of Goods at the Common Beam of London, 
Verdict cures a defective Declaration.  setting forth that the Lord Mayor, etc. time out of mind kept a common Beam and Weights, and Servants to attend the weighing of Goods. That the Defendant bought Goods, etc. but did not bring them to the Beam to be weighed per quod proficuum amisit.  
Upon Not-Guilty pleaded there was a Verdict for the Plaintiff, and it was moved in arrest of judgement, that the Plaintiff had not brought himself within the Prescription, for he doth not say that the Defendant sold the Goods by Weight, and this is a fault which is not helped by a Verdict.  
This had been certainly naught upon a Demurrer, and being substance is not aided by this Verdict.  
This is Substance, for the Duty appears to be wholly in respect of the Weights which are kept; now Weighing being the Principal, and it being no where alleged that the Goods were weighed elsewhere, or that they were such which are usually sold by Weight, than there is no need of bringing of them to the Beam.  
If one prescribes to a Common, and doth not say for Cattle Levant and Couchant, the Prescription is not good.  
This being the consideration of the Duty it ought to be precisely alleged, as in an Assumpsit, where the Plaintiff declared that in consideration that the Defendant owed him 40 l. he promised to pay it ante inceptionem proximi itineris to London, 
Yelv. 175. 2 Cro. 245.  and alleged that such a day incepit iter suum ad London ', but for omitting the Word proxime judgement was arrested after Verdict, because the Duty did arise upon the commencement of his next journey.  
The true reason why any thing is helped by Verdict is for that the thing shall be presumed to be given in Evidence at the Trial.  
Mr. 
E contra.  Pollexfen contra. Here is enough set forth in the Plea to show that the Goods were not weighed, and it must be given in Evidence at the Trial that they were sold contrary to the Custom, which is the only Offence to be proved.  
The want of Averment that the Goods sold by the Defendant were not weighed shall not vitiate this Declaration after a Verdict.  
To prove this some Authorities were cited, 
Cro. Eliz. 458. 2 Cro. 44. Siderfin 218. Palmer 360. Cro. Car. 497.  as where in Trespass the Defendant justified for Common by Prescription for Beasts Levant and Couchant, and that he put in his Beasts utendo Communia; Issue was taken upon the Prescription and found for the Defendant; now though he did not aver that the Cattle were Levant and Couchant, yet it was held that it was cured by a Verdict.  
And of this Opinion were three judges now; but justice Allybon differed, for says he if this Declaration should be good after a Verdict then a Verdict will cure any fault in Pleading.  
judgement for the Plaintiff.   

Prowse versus Wilcox.  
AN Action on the Case for scandalous Words. 
Words spoken of a Justice of the Peace where actionable.  The Plaintiff declared that he was a Justice of the Peace for the County of Somerset; that there was a Rebellion in the West by the Duke of Monmouth and others, that search was made for the Defendant, being suspected to be concerned in that Rebellion, and that the Defendant thereupon spoke these words of the Plaintiff, viz.  
John Prowse is a Knave, and a busy Knave for searching after me and other honest Men of my sort, and I will make him give me satisfaction for plundering me.  
There was a Verdict for the Plaintiff, and the judgement being stayed till the Return of the Postea,  
Mr. Pollexfen moved that the Plaintiff might have his judgement, because the Words are actionable, 
1 Roll. Abr. 59 pl. 3.  for they touched him in his Office of a justice of a Peace.  
It was objected (to stay the judgement) that the Words were improper, and therefore could not be actionable.  
But admitting them so to be, yet if they in any wise reflect upon a Man in a public Office they will bear an Action.  
Shore contra. The Plaintiff doth not lay any Colloquium of him as a Justice of the Peace, or that the words were spoken of him relating to his Office, or the Execution thereof, and therefore an Action will not lie though, an 
* Vid. antea Rex versus Derby. 2 Cro. 315.  Information might have been proper against him.  
If a Man should call another Lewd Fellow; and that he set upon him in the Highway, and took his Purse from him, an Action will not lie, because he doth not directly charge him with Felony or Robbery.  
The Court were divided in Opinion, two against two, so the Plaintiff had his judgement.   

Boil versus boil.  
A Libel was in the Spiritual Court against a Woman causa jactitationis Maritagii. 
Prohibition granted.   
The Woman suggests that this person was indicted at the Sessions in the Old-Bayly for marrying of her (he then having a Wife living) contra formam Statuti; 
Godb. Rep. Can. 507. Hales 121. 1 Jac. cap. 11. Sid. 171.  that he was thereupon convicted and had judgement to be burned in the Hand, so that being tried by a jury and a Court which had a jurisdiction of the cause and the Marriage found, a Prohibition was prayed.  
Sergeant Levinz moved for a Consultation, because no Court, but the Ecclesiastical Court, can examine a Marriage; for in the Dower Writ is always directed to the Bishop to certify the lawfulness of the Marriage; and if this Woman should bury this Husband and bring a Writ of Dower, and the Heir plead Ne unques accouple, etc. this Verdict and Conviction shall not be given in Evidence to prove the illegality of the Marriage, but the Writ must go to the Bishop.  
This is proved by the Case of Emerton and Hid in this Court. The Man was married in fact, and his Wife being detained from him (she being in the Custody of Sir Robert Viner) brought an Habeas Corpus; she came into the Court, but my Lord Hales would not deliver the Body, but directed an Ejectment upon the Demise of John Emerton and Bridget his Wife, that the Marriage might come in question. It was found a Marriage; and afterwards at an Hearing before the Delegates, this Verdict was not allowed to be given in Evidence, because in this Court one jury may find a Marriage and another otherwise; so that it cannot be tried whether they are legally married by a Temporal Court. 'Tis true, this Court may control the Ecclesiastical Courts, but it must be eodem genere.  
E contra. 
E contra.  It was said that if a Prohibition should not go then the Authority of those two Courts would interfere, which might be a thing of ill consequence: If the lawfulness of this Marriage had been first tried in the Court Christian the other Court at the Old-Bayly would have given Credit to their Sentence.  
But that Court hath been prohibited in a Case of the like nature, 
2 Cro. 535.  for a Suit was there commenced for saying, That he had a Bastard.  
The Defendant alleged that the Plaintiff was adjudged the reputed Father of a Bastard by two justices of the Peace according to the Statute, and so justified the speaking of the words, and this being refused there, a Prohibition was granted, and so it was in this Case by the Opinion of three judges.  
Dr. Hedges a Civilian, being present in the Court said, that Marriage or no Marriage never came in question in their Court upon a Libel for Jactitation, unless the Party replies a lawful Marriage, and that the Spiritual Court ought not to be silenced by a Proof of a Marriage de facto in a Temporal Court; for all Marriages ought to be de jure, of which their Courts had the proper jurisdiction.   

Sir John Newton versus Francis Creswick.  
IN an Action on the Case, 
Plea, where it amounts to the general Issue.  wherein the Plaintiff declared that the Defendant exhibited a Peittion against him, and Sir R. H. before the King in Council, by reason whereof he was compelled to appear at his great Expense, and that he was afterwards discharged of the matter alleged against him, which was the erecting of Cottages in Kingswood Chase in the County of Gloucester.  
This Action was first laid in Gloucestershire, and the Defendant moved that it might be laid in Middlesex where the Petition was exhibited.  
But it was insisted for the Plaintiff, that where a cause of Action ariseth in two places he hath his Election to lay it in either.  
The Court held that the exhibiting of the Petition was the ground of the Action, and though it contained matter done in another place, yet it shall be tried in the County where the Petition was delivered; for suppose the Petition had contained Matter done beyond Sea, etc.  
Now in this Case the Action being brought in Middlesex the Defendant pleaded that the Chase was injured by the erecting the said Cottages, by the digging of Pits, and by the making of a Warren by Sir John Newton, and that the other person Sir R. H. being then a justice of the Peace for the County of Gloucester upon Complaint to him made did not impose Penalties upon the Offenders, but did abet the said Plaintiff, by reason whereof the Deer were decreased from 1000 head to 400.  
To this Plea the Plaintiff demurred.  
Mr. Pollexfen argued against the Plea, first that it charged Sir R. H. with no particular Crime, but enlargeth the Matter upon the Plaintiff, and amounts to no more than the general Issue; for the Question is whether the Defendant hath falsely prosecuted the Plaintiff before the King in Council, which is only matter of fact, and which is charged upon the Defendant, and therefore he ought to have pleaded Not-Guilty.  
'Tis true, where the Defence consists in matters of Law there the Defendant may plead specially, but where 'tis purely fact the general Issue must be pleaded.  
E contra. 
E contra.  It was insisted upon that what is alleged in this Plea might be given in Evidence upon the general Issue, but the Defendant may likewise plead it specially, and not trust the Matter to the Lay-gents.  
As in Conspiracy for procuring of the Plaintiff to be falsely and maliciously indicted of a Robbery; 
Cro. Eliz. 871, 900. 21 E. 3.17. 27 Ass. 12. Kelway 81. Moor 600. Rast. Ent. 123. Sed nota, This Defence was matter of Law.  the Defendants plead that they were rob, and suspecting the Plaintiff to be guilty procured a Warrant in order to have the Plaintiff examined before a justice of the Peace, of which he had notice, and absented himself, but was afterwards committed to the Gaol by a judge of this Court who advised them to prefer a Bill of Indictment, etc. quae est eadem conspiratio; this was adjudged a good Plea, though it amounted to no more than the general Issue, and all this matter might have been given in Evidence at the Trial.  
The Court, except justice Allybon, advised the Plaintiff to waive his Demurrer, and the Defendant to plead the general Issue.  
But justice Allybon took an Exception to the Declaration for that the Plaintiff had not alleged any damnification, but only that he was compelled to appear, and doth not show how, either by the Petition of the Defendant, or by Summons, etc.  
He ought to set forth that he was summoned to appear before the King in Order to his discharge, but to say coactus fuit comparere is incertain, for that might be in the vindication of his Honour or Reputation.  
He complains of a Petition exhibited against him which the Defendant hath answered by showing to the Court sufficient matter which might reasonably induce him so to to; and for that reason he held the Plea to be good. Sed adjornatur.   

Rex versus Hockenhul.  
AN Information was exhibited against him for a Riot, 
Misprision of a Clerk amended.  of which he was found guilty, and this Exception was taken in arrest of judgement.  
Memorandum quod ad general ' quarterial ' Session ' Pacis tent ' etc. die Sabbati prox ' post quindenam Sancti Martini praesentat ' existit quod the Defendant 27 die Januarii in such a year vi & armis &c. So the Fact is laid after the Indictment, which was exhibited against the Defendant at the Michaelmas Sessions, and the Fact is laid to be in January following in the same year.  
But the Attorney General said this was only a Misprision of the Clerk in titling the Record, viz. in the Memorandum, 
8 Co. 156. 4 H. 6.16. 10 Ass. 26. Cro. Car. 144.  and there was no fault in the Body of the Information, and that it was amendable at the Common Law: He cited some Cases to prove where amendments have been in the Cases of Subjects of greater Mistakes than here, a fortiori it aught to be amended in the King's Case.  
'Tis not only amendable at the Common Law; 
4 H. 6. c. 3. 8 H. 6. c. 12. Jones 421.  but by several Statutes which extend to all Misprisions of Clerks, except Treason, Felony and Outlawry, wherefore this mistake of Quinden ' Martini was amended and made Quinden ' Hillarii.   

Rex versus Sellars.  
THE Defendant was indicted at the Sessions in London for not attending at the Wardmote Inquest being chosen of the jury for such a year. 
Indictment quashed.   
To this Indictment he pleaded the King's Grant to the Company of Cooks, of which he was a Member, by which Grant that Company is exempted from being put or summoned upon a jury or Inquest before the Mayor or Sheriffs or Coroner of London, etc.  
And upon a Demurrer the Question was, whether the Cooks are discharged by this Grant from their Attendance at the said Wardmote Inquest.  
And for the King it was argued that they are not discharged.  
Before the judgement upon the Quo Warranto brought against the City of London these Courts there were like the Hundred Courts in the County; for as these were derived out of the County, 
4 Inst. 249.  so those were derived from the Lord Mayor's Court, which is a Court of Record, and erected for the better Government of the City, and the Aldermen of every Ward had right to hold Leets there.  
1. But now the words of this Grant do not extend to this Case, for the Cooks are thereby discharged only from being of a jury before the Mayor, Sheriffs or Coroner, etc. but the Court of Wardmote is held before neither, for 'tis held before the Alderman of the Ward.  
2. 
Dyer 269.  The words in this Grant aught to be taken strictly, viz. that Cooks shall be exempted if there be other sufficient Men in the Ward to serve besides, and if this doth not appear the Grant is void; but this is not alleged.  
E contra. 
E contra.  As to the first Exception it was said that the Wardmote Court was held before the Mayor, for the juries there are not to try any Matter, but only to make Presentments which are carried before the Mayor.  
Exceptions were taken against the Indictment, which was for not serving at a Wardmote Inquest for such a year.  
1. Because 'tis a thing not known at the Common Law that a Man should be of a jury for a whole year.  
The Indictment was that the Defendant was an Inhabitant of such a place, and elected a jury Man.  
2. But doth not say that he ought to hold the Office to which he was elected.  
It was quashed.   

Calthrop versus Axtel.  
THE Husband being seized in Fee had Issue two Daughters, 
Ejectment upon the Statute of Ph. & Mar. for marrying under 16 without the Parents Consent. Antea Hicks versus Gore.  and died, his Wife survived, who was then by Law Guardian in Socage to her Children; one of which under the Age of sixteen years married one Mr. B. without her Mother's Consent, by reason whereof her Estate became forfeited during life to her Sister by virtue of the Statute of 4 & 5 Ph. & Mar. who now brought an Ejectment which was tried at the Bar.  
The Mother was produced as a Witness at this Trial against the married Daughter, but it was objected against her that she was Tenant in Possession of the Lands in question under her other Daughter, that some part of the Estate was in Houses, and that she had made Leases thereof to several Tenants for 99 years, etc. and covenanted with the Lessees, that she together with the Infants, when of Age, shall and will join to do any ●●●rther Act for the quiet enjoyment thereof; therefore this is like the Case of a Bailiff or Steward, who if they put themselves under such Covenants shall never be admitted as Witnesses in any Cause where the Title of such Lands shall come in question.  
The Proofs that the Mother did not consent were, That she made Affidavit of the whole matter, and got the Lord Chief Justice's Warrant to search Mr. B's. Houss for her Daughter, and upon application made to my Lord Chancellor she obtained a Writ of Ne exeat Regnum, and got a Homine replegiando, and gave notice of the Fact in the Gazett, and exhibited an Information in the Crown Office against Mr. B. and his Father and his Maid.  
Attorney General contra. 
E contra.  The Preamble of this Act will be a Guide in this Case, which is, For that Maids of great Substance in Goods, etc. or having Lands in Fee have by Rewards and Gifts been allowed to contract Matrimony with unthrifty persons, and thereupon have been conveied from their Parents by sleight or force, etc.  
Then it enacts, That no person shall convey away a Maid under 16 years without her Parents Consent; which Assent is not necessary within the meaning of this Act, unless the Child be taken away either by sleight or force, which must be proved.  
The Mother was no good Guardian to these Children, for she did set up one G. to be a Curator for her Daughter in the Spiritual Court to call herself to an account for the personal Estate of which her Husband died possessed, she having given Security to exhibit a true Inventory.  
This Account was stated in the Prerogative Court between her and the Curator to 300 l. only, for which she gave Bond, when in truth the Personal Estate was worth more, and afterwards obtained a Decree in Chancery, thinking thereby to bind the interest of the Infants.  
In this Case it was said, that there must be a continued refusal of the Mother, for if she once agree, though afterwards she disassent, yet 'tis an assent within the Statute: There must likewise be proof of the stealing away.   

Obrian versus Ram. Mich. 3 Jac. 2. Rot. 192.  

Angl ' ss. 
Entry of a Writ of Error out of Ireland.  DOminus Rex mandavit praedilecto & fideli Conciliario suo Willielmo Davis Militi Capitali Justic. suo ad placita in Curia ipsius Domini Regis coram ipso Rege in Regno suo Hiberniae tenend ' assign ' Breve suum Clausum in haec verba. ss. Jacobus secundus Dei gratia Angliae Scotiae Franciae & Hiberniae Rex Fidei defensor etc. pradilecto & fideli Conciliario nostro Willielmo Davis Militi Capital ' Justic ' nostro ad placita in Curia nostra coram nobis in Regno nostro Hiberniae tenend ' assign ' salutem Quia in Recordo & Processu acetiam in redditione Judicii loquelae quae fuit in Curia nostra coram nobis in praed. Regno nostro Hiberniae per Billam inter Abel Ram Mil. nuper dict. Abel Ram de Civitate Dublin Alderman ' & Elizabetham Grey de Civitate Dublin Viduam de quodam debito quod idem Abel a praefat ' Elizabetha exigebat Quae quidem Elizabetha postea cepit Donnough Obrian Armigerum in virum suum & obiit Necnon in adjudications executions ejusdem Judicij super Breve nostrum de Scire Fac extra eandem Curiam nostram coram nobis emanen ' versus ipsum praed. 
In adjudicatione Executionis super Scire Fac.  Donnogh in loquela praed. ut dicitur Error intervenit manifestus ad grave dampnum ipsius Donnogh sicut ex querela sua accepimus Nos Error si quis fuerit modo debito corrigi & partibus praed. plenam & celerem justiciam fieri volentes in hac parte vobis mandamus qd ' si judicium in loquela praed ' reddit ' ac adjudicationem executionis judicii praed. super breve nostrum de Scire fac praed. adjudicat tunc record ' & process. tam loquel ' quam adjudicationis executionis judicii praed ' cum omnibus ea tangen ' nobis sub sigillo vestro distincte & aperte mittatis & hoc Breve ita qd ' ea habeamus in Crastino Ascentionis Domini ubicunque tunc fuerimus in Angl ' Ut inspect ' record ' & process. praed ' ulterius inde pro Errore illo corrigendo Fieri fac ' quod de jure fuerit faciend ' Et Scire fac. praefat ' Abel qd ' tunc sit ibi ad procedend ' in loquela praed ' & faciend ' ulterius & recipiend ' quod dicta Curia consideraverit in praemissis Teste meipso apud Westm. xxii Januarii Anno Regni nostri secundo.  
Price.   

Record ' & Process. 
The Return.  loquelae unde infra fir mentio cum omnibus ea tangen ' coram Dno. Rege ubicunque etc. ad diem & locum infracontent ' mitto in quodam Record ' huic Brevi annex ' & Scire feci Abel Ram qd ' tunc sit ibi ad procedend ' in loquela praed. prout interius mihi praecipitur.  
Respons' ' W. Davis.   

Placita coram Domino Rege apud the Kings Courts de Termino Sanctae Trinitatis Anno Regni Domini nostri Caroli Secundi Dei gratia Angliae Scotiae Franciae & Hiberniae Regis Fidei Defensoris etc. vicesimo nono Teste Johanne Povey Mil. Savage & Rives.   

Com. Civitat. Dublin ss. Memorandum quod die Veneris prox. 
Declaration in Debt upon a Bond.  post Crastinum Sanctae Trinitatis isto eodem Termino coram Domino Rege apud the Kings Courts ven ' Abel Ram de Civitate Dublin Alderman ' per Faustin ' Cuppaidge Attornatum suum Et protulit hic in Cur ' dict' Domini Regis tunc ibidem quadam Billam suam versus Elizabetham Grey de Civitate Dublin Viduam in Custod. Maresc. etc. de placito debiti Et sunt pleg ' de prosequend ' Johannes Do & Richardus Roe quae quidem Billa se quitur in haec verba ss. Com. Civitat. Dublin ss. Abel Ram de Civitate Dublin Aldermannus queritur de Elizabetha Grey de Civitate Dublin Vidua in Custodia Maresc. Marescal. Domini Regis coram ipso Rege existen ' de placito qd ' reddat ei octingent. libras bonae & legalis monetae Angliae quas ei debet &  detinet pro eo videlicet qd ' come praed ' Elizabetha vicesimo tertio die Junij Anno Domini millesimo sexcentisimo septuagesimo sexto Annoque Regni Regis Caroli Secundi vicesimo octavo apud Civitat ' Dublin praedict. in Parochia Sancti Michaelis Archangeli in Warda Sancti Michaelis in Comitatu ejusdem Civitatis per quoddam scriptum suum obligatorium sigillo ipsius Elizabethae sigillat ' Curiaeque dicti Domini Regis nunc hic ostens ' cujus dat' est eisdem die & anno cogn ' se teneri & firmiter obligari praefat. Abel in praed. octingent. libris sterling ' solvend ' eidem Abel cum inde requisite ' fuisset Praedicta tamen Elizabetha licet saepius requisite ' praedict. octingent. libras sterling ' eidem Abel nondum solvit sed ill. ei hucusque solvere recusavit & adhuc recusat ad dampnum ipsius Abel centum libr. sterling ' Et inde producit sectam etc.   

Et praedicta Elizabetha per Walterum Chamberlain Attornatum suum venit & defendit vim & injuriam quando etc. 
Judgement by Cognovit actionem.  Et dicit qd ' ipsa non potest dedicere actionem praed. Abel praedict. nec quin scriptum praed. sit factum suum nec quin ipsa debet praefat ' Abel praedict. octingent. libras modo & forma prout praed. Abel superius versus eam queritur Ideo considerat ' est qd. praed. Abel recuperet versus praefat. Elizbaetham debitum suum praed. nec non tres libras undecim solid. & sex denar. sterling ' pro dampnis suis quae sustin ' tam occasione detentionis debiti illius quam pro mis. & custag ' suis per ipsum circa sectam suam in hac parte apposit ' eidem Abel per Curiam dicti Domini Regis nunc hic ex assensu suo adjudicata Et praed. 
Tisdale.  Elizabetha in misericordia etc.   

Placita coram Domino Rege apud the Kings Courts de Termino Paschae Anno Regni Domini nostri Jacobi Secundi Dei gratia Angliae Scotiae Franciae & Hyberniae Regis Fidei defensoris etc. secundo Test. Willielmo Davis Mil. Savage & Rives.   

Dominus Rex mandavit Vic' Com. 
The Scire Fac. against Baron after the Marriage, and death of his Wife.  Civitat. Dublin Breve suum Clasum in haec verba ss. Jacobus Secundus Dei gratia Angliae Scotiae Franciae & Hiberniae Rex Fidei defensor etc. Vic. Com. Civitat. Dublin salutem Cum Abel Ram de Civitat. Dublin Aldermannus nuper scilicet Termino Sanctae Trinitatis Anno Regni Domini Caroli Secundi Dei gratia nuper Regis Angliae etc. Fratris nostro praecharissimi vicesimo nono in Cur. ipsius nuper Regis coram ipso nuper Rege apud the Kings Courts per Billam sine Brevi dicti nuper Domini Regis ac per Judicium ejusdem Curiae recuperasset versus Elizabetham Grey de Civitat. Dublin Vidua tam quoddam debitum octingent. libr. bonae & legalis monetae Angliae quam tres libras undecim solid. & sex denar. consmilis monetae pro dampnis suis quae sustin ' tam occasione detentionis debiti illius quam pro mis. & custag ' suis per ipsum circa sectam suam in hac parte apposite ' unde convict ' est sicut nobis constat de Recordo ac post recuperationem Judicij praed. praed. Elizabetha cepit in virum suum quendam Donatum Obrian Armigerum ac postea scilicet Termino Sanctae Trinitatis Anno Regni dci. Domini nuper Regis tricesimo primo in Curia ipsius Dni. Regis coram ipso nuper Rege per considerationem ejusdem Curiae adjudicat ' fuisset qd. praed. Abel Ram haberet executionem suam versus praefat ' Donatum Obrian & Elizabetham uxorem ejus de debito & dampnis praed. juxta vim formam & effectum recuperationis & adjudicationis praedict. Executio tamen tam Judicij praed. quam adjudicationis praed. adhuc restat faciend. ac post adjudicationem praed. praed. Elizabetha obiit & praed. Donat ' Orbian eam supervixit prout ex insinuatione ipsius Abel qui post recuperationem & adjudicationem praed. ordin ' Militis super se suscepit in Curia nostra coram nobis accepimus unde idem Abel nobis supplicavit sibi de remedio congruo in hac parte adhiberi & nos eidem Abel in hac parte fieri volentes quod est justum vobis praecipimus qd. 
Ordinem Militis suscepit.  per probos & legales homines de Balliva vestra Scire fac. praefat. Donat. Obrian qd ' sit coram nobis apud the Kings Courts die Mercurii prox. post Quinden ' Paschae ostens ' si quid pro se habeat vel dicere sciat quare praed. Abel Ram executionem suam versus eum de debito & dampnis mis. & custag. praed. habere non debeat juxta vim formam & effectum recuperation ' & adjudication ' praed. si sibi viderit expedir. & ulterius factur ' & receptur quod Curia nostra coram nobis de eo adtunc & ibidem cons. in hac parte & habeatis ibi nomina eorum per quos ei Scire Fac. & hoc Breve Teste Willielmo Davis Milite apud le Kings Courts duodecimo die Februarij Anno Regni nostri secundo.  
Ad quem diem coram dicto Domino Rege apud the Kings Courts, 
The Return of the Sheriff.  ven. praed. Abel Ram in propria persona sua & Vic' videlt. Richardus French & Edwardus Rose Ar. return ' qd. praed. Donatus Obrian nihil habet in balliva sua per quod ei Scire fac. potuissent nec fuit invent. in eadem & praed. Donatus Obrian non venit Ideo sicut prius precept. est eisdem Vic. pd. 
Alias Sci. fa. awarded.  per probos etc. Scire fac. praefati Donato Obrian qd. sit coram Domino Rege apud le Kings Courts die Mercurij prox ' post quinque septimanas Paschae ad ostend. in forma praed. si etc. Ulterius etc. Idem dies dat. est praefat. Abel Ram ibidem etc.  
Ad quem diem coram dicto Domino Rege apud the Kings Courts ven. praed. 
Sheriffs Return.  Abel per Faustinum Cuppaidge Attornatum suum & praefat. Vic. ut prius return. qd. praefat. Donatus Obrian nihil habet in balliva sua per quod ei scire facere potuissent nec est invent. in eadem super quo praed. Donat. 
The Defendant appears and pleads another Sci. fa. against himself and Wife.  Obrian per Johannem Morris Attornatum suum ven. & defend. vim & injuriam quando, etc. Et dicit qd. praed. Abel Ram executionem suam versus eum de debito & dampnis praed. habere non debet quia dicit qd. praed. Abel Ram alias super recuperationem & adjudicationem praed. tulit breve Domini Caroli Secundi nuper Regis Angliae, etc. tunc Vic. dicti nuper Regis Com. Civit. Dublin direct. ad praemuniend ' ipsum Donat. Obrian & dictam Elizabetham tunc Uxorem ejus ad essend ' coram ipso nuper Rege apud le Kings Courts die Sabbati prox. post Quinden. Sancti Martini tunc dicti nuper Regis tricesimo sexto ad ostend ' si quid ipsi idem Donat. & Elizabetha tunc Uxor ejus pro se haberent aut dicere scirent quare praed. Abel Ram executionem suam versus eos de debito & dampnis praed. non haberet juxta vim & formam recuperationis praed. si sibi vidissent expedir ' Et ad diem ill ' coram ipso nuper Rege apud the Kings Courts, praed. ven. praed. Abel Ram in propria persona sua & praed. Donat. Obrian & Elizabetha Uxor ejus solempnit. exact ' non ven. & Johannes Coin & Samuel Walton Are ' tunc Vic. Com. 
return ' vic.  Civit. praed. super breve praed. eyes per nomen Vic Com. Civitat. Dublin direct ' retornaver ' qd. praed. Donat. Obrian & Elizabetha tunc Uxor ejus nihil habuer ' in balliva sua super quo eis Scire fac. potuissent neque fuer ' invent. 
Alias Sci fa.  in eadem balliva & ideo sicut alias precept. fuit eisdem. Vic. qd. per probos & legales homines etc. Scire Fac. praefat. Donat. Obrian. & Elizabethae qd. essent coram dicto nuper Rege apud le Kings Courts praed. die Mercurij prox ' post Octab. Sancti Hillarij tunc prox ' futur. ad ostend. si quid pro se haberent vel dice scirent quare praed. Abel executionem suam versus eos de debito & dampnis praed. non haberet in forma praed. & idem dies dat. fuit praefat. Abel Ram ibidem, etc. Et eodem die ill ' coram dicto nuper Rege apud the Kings Courts praed. ven. praed. Abel per praed ' Fustinum Cuppaidge Attornatum suum & praefat. tunc Vic. retornaver. super breve de al. Scire fac. eyes in forma praed. direct. qd. praed. Donat. & Elizabetha nihil habuer. in balliva sua per quod eis Scire fac. potuissent neque fuer ' invent. in eadem & praed. Abel Ram obtulit se quarto die placiti versus praefat. 
The Baron and Feme appear and plead that Execution was levied upon the Judgement by a Fieri. fac.  Donat. & Elizabetham & super hoc iidem Donat. & Elizabetha per Henr. Daniel tunc eorum Attorn. ven. & dixer. qd. praefat. Abel Ram executionem suam versus eos de debito & dampnis praed. habere non debuit quia dixer. qd. praedict. Abel Ram infra unum Annum post recuperationem & adjudicationem praed. prosecut. fuit breve Domini tunc Regis tunc Vic. Com. Civit. Dublin direct. de Fire. fac. de bonis & catallis ipsorum Donat. & Elizabethe debitum & dampna praed. & ill habere coram dicto nuper Rege die Mercurij prox. post Quinden. Pasch ' prox. post. recuperationem & adjudicium praedict. ad reddend. praefat. Abel Ram pro debito & dampnis praed. & dixer. qd. iidem tunc Vic. virtute ejusdem brevis apud Civit. Dublin in Paroch. Sancti Michaelis in Com. ejusdem Civitat. levaver. debitum & dampna praed. de bonis & catallis ipsorum Donat. & Elizabethe etc. Et ideo petier. judicionem si praed. Abel executionem suam de debito & dampnis praed. versus eos iterum habere deberet. Et postea scilicet die Sabbati prox ' post Crastin ' Ascentionis Domini tunc prox ' futur. coram dicto tunc Rege apud le Kings Courts, 
Relicta verificatione placiti.  praed. vener. prates praed. per Attorn. suos praed. & super hoc iidem Donatus & Elizabetha per Henr. Daniel Attornatum suum praed. reliquer ' verificationem placiti sui praed. 
Judgement thereupon.  & ideo adtunc & ibidem cons. fuit qd. praed. Abel haberet executionem suam versus prefat. Donat. & Elizabetham de debito & dampnis praed. juxta vim formam & effectum recuperationis & adjudicationis praedict. & super hoc idem Abel obtinuit executionem ill. versus ipsos Donat. & Elizabetham & praed. Donat. in facto dic. qd ' praed. debitum & dampna praed. de quibus sic adjudicat. fuit qd. praed. Abel haberet executionem suam praed. in forma praed. sunt eadem debitum & dampna mentionat. in dict. brevibus de Scire fac. versus ipsum Donat. nunc latis & non alia neque diversa & qd. dict' recuperatio eadem quam sic adjudicat fuit est eadem recuperatio & adjudicatio mentionat. in dict' Brevibus de Scire fac. versus ipsum Donat. in forma praed. latis & non alia neque diversa & hoc idem Donatus parat. est verificare unde ex quo nulla fit mentio considerationis & adjudicationis praedict. in dict' Brevibus de Scire fac. idem Donatus Obrian pet. Judicium si Cur ' hic al. executionem super recuperationem & adjudicationem praed. in dict' nunc Brevibus de Scire fac. mentionat. adjudicari debeat, etc.   

Et praed. Abel Ram dic ' qd. praed. placitum praed. Donat. 
Demurrer.  Obrian superius placitat, materiaque in eodem content. minus sufficiens in lege existit ad ipsum Abel Ram ab executione sua praed. versus ipsum Donat. habend precludend ' quodque ipse ad placitum ill ' necesse non habet nec per legem terrae tenetur respondere & hoc parat. est verificare unde pet. judicium & executionem suam de debito & dampnis praed. versus ipsum Donat. sibi adjudicari & pro causa moration. in lege super placitum ill. idem Abel ostend. & Cur. hic monstrat causam subsequen. videlicet eo qd. dict' Donat. in placito praed. allegat qd. praed. Abel per cons. 
Special Causes.  Cur. Domine Regis hic obtinuit executionem versus praefat. Donat. & Elizabetham de debito & dampnis praed. & non dicit se illud probatur. per Record ' prout dicere debuit.   

Et praed. Donatus Obrian per Attorn. suum praed. dic ' qd. 
joinder in Demurrer.  placitum praed. materiaque ineodem content. bon ' & sufficien ' in lege existunt a ipsum Abel ad exedutionem suam versus ipsum Donat. habend. precludi quamquidem materiam praed. Abel non dedicit nec ad eam a liqualit. respond. Et hoc pat. est verificare unde ut prius praed. Donatus petit judicium & qd. praed. 
Continuances.  Abel ab executione sua praed. versus ipsum Donat. habend ' precludatur etc. Et quia Cur. Domini Regis hic de Judicio suo de & super praemissis reddend ' nondum advisatur dies inde dat. est partibus praed. coram dicto Domino Rege apud the Kings Courts, usque diem Veneris prox ' post Crastin. Sanctae Trinitat. extunc prox ' sequen ' de Judicio suo de & super premissis audiend ', etc. Eo qd. Cur. dicti Domini Regis hic inde nondum, etc. Ad quem diem coram dicto Domino Rege apud the Kings Courts, ven ' parts praed. per Attorn. suos praed. Et quia Cur. dicti Domini Regis de Judicio suo de & super praemissis reddend ' nondum advisatur dies inde dat. est partibus praed. coram dicto Domino Rege apud le Kings Courts usque diem Sabbati prox ' post Crastin ' Animarum extunc. prox ' sequen ' de Judicio de & super praemissis audiend ' etc. eo qd. Cur. Domini Regis hic inde nondum, etc. Ad quem diem coram dicto Domino Rege apud le Kings Courts ven. parts praed. per Attorn ' suos praed. Et quia Cur. dicti Domini Regis hic de Judicio suo de & super prmissis reddend ' nondum advisatur dies inde dat. est partibus praed. coram dicto Domino Rege apud le Kings Courts usque diem Lunae prox ' post Octab. Sancti Hillarij extunc prox ' sequen ' de Judicio suo de & super praemissis audiend ' eo qd. Cur ' dicti Domini Regis hic inde nondum etc. Ad quem diem coram dicto Domino Rege apud le Kings Courts vener ' parts praed. per Attorn ' suos praed. super pro visis & per Cur ' dicti Domini Regis hic plen. 
Judgement qd. habeat executionem.  intellectis omnibus & singulis praemiss. maturaque deliberatione inde habita videtur Cur ' dicti Domini Regis hic qd. placitum praed. praedicti Donat. modo & forma praed. placitat. & materia in eodem content. minus sufficien ' in lege existunt ad ipsum Abel Ram ab executione sua praed. versus ipsum Donat. habend ' praecludend ' Ideo cons. est qd. praed. Abel Ram habeat executionem suam versus praefat ' Donat. de debito & dampnis praed. juxta vim formam & effectum recuperationis & adjudicationis praed. etc.  
ss. 
Error assigned.  Postea scilicet die Lunae prox ' post tres septimanas Sancti Michaelis isto eodem Termino coram Domino Rege apud Westm. ven ' praed. Donat. Obrian per Johannem Hancock Attorn ' suum Et dic ' pd. in Record ' & Process. praed. acetiam in adjudicatione execution. Judicij praed. manifest. est errat. in hoc videlt ' quod per Recordum praed ' apparet qd. adjudicatio executionis in Record ' praed. in forma praed. reddit. reddit. fuit pro praefat ' Abel versus eundem Donat. ubi per legem Hiberniae praed. nulla adjudicatio execution. Judicij illius reddi debuisset pro praefat ' Abel versus eundem Donat. ideo in eo manifest. est Errat. Errat. est etiam in his qd. 
Diminution alleged.  per Record ' praed. tunc. hic missum duminut. existist in non certificando duo Brevia dicti Domini Caroli Secundi nuper Regis Angli etc. Vic. dicti nuper Regis Com. Civit. Dublin direct. ad praemuniend ' praed. Donat. Obrian & praed. Elizabetham Uxor. ejus ad essend. coram ipso nuper Rege apud le Kings Courts Dublin praed. ad ostend. causam quare praefat. Abel executionem versus eos de debito & dampnis praed. non haberet aceciam in non certificando process. & Judic. superinde quia in adjudicatione executionis superinde adjudicatio ill. reddit. fuit pro praefat. Abel versus praed. Donat. & Elizabetham Uxorem ejus ubi per legem Hiberniae nulla adjudicatio execution ' Judicij praed. reddi debuisset pro preaefat ' Abel versus ipsos Donatum & Elizabetham Uxorem ejus aceciam in non certificando causam vel rationem super Recordnm allegat quare Brevia praed. emanarent versus praefat. Donatum & Elizabetham Et in his manifest. est erratum Et pet. idem Donat. breve Domini Regis praedilecto & fideli Consiliario dicti Domini Regis Thome Nugent Ar. 
A Cerciorari prayed.  Capital ' Justice. dicti Domini Regis ad placita in Cur. ipsius Domini Regis coram ipso Rege in Regno suo Hiberniae tenend. 
And granted.  Assign ' dirigend ' ad certificand ' dicto Domino Regi nunc plenius inde viritatem Et ei conceditur etc. quod quidem Breve dictus Dominus Rex mandavit praedilecto & fideli Consiliario suo Thomae Nugent Armigero Capitali Justiciario suo ad placita in Cur. 
The Cerciorari to certify the Dimunition.  ipsius Domini Regis coram ipso Rege in Regno suo Hiberniae tenend ' Assign ' Breve suum clausum in hec verba ss. Jacobus Secundus Dei gratia Angliae Scotiae Franciae & Hiberniae Rex Fidei Defensor, etc. Praedilecto & fideli Consiliario nostro Thomae Nugent Ar. Capital. Justice. nostro ad placita in Curia nostra coram nobis in Regno nostro Hiberniae tenend ' Assign Salutem Volentes de certis causis certiorari de duobus Brevibus Domini Caroli Secundi nuper Regis Angliae etc. é Cur. dicti nuper Domini Regis coram ipso Rege vocat ' the Kings Courts Dublin. nuper emanen ' Vic. dicti nuper Regis Com. Civit. Dublin. direct ' add praemuniend ' Donat. Obrian & Elizabeth. Uxor ' ejus tunc nuper dict' Elizabetham Grey de Civitat. Dublin. vid. add essend. coram ipso nuper Rege apud le Kings Courts Dublin. praed. ad ostend ' causam quare Abel Ram modo Mil. sed tempore emanationis praed. Brevium de Scire Fac ' Abel Ram de Civit. Dublin. Alderman. executionem suam versus eos de quodam debito Octingent ' librarum nec non trium librarum undecim solid. & sex denar ' pro dampnis per ipsum Abel versus ipsam Elizabetham dum sola fuit in eadem Cur. recuperat. quae quidem Elizabetha post recuperationem Judicij praed. versus ipsam nec non ante impetrationem praed. Brevium de Scire Fac ' cepit in virum suum praed. Donat. Obrian quod certior tot. return. process. & adjudication. execution. super inde ac pro eo qd. record. & process. Judicij praed. super quo praed. Brevia de Scire Fac. emanaver. virtute Brevis nostri de error. corrigend ' Cur. nostrae coram nobis apud Westm. miss. & habit. fuer. ac ibidem de record. jam resident. erroribus superinde assign ' minime discussis vobis mandamus qd. praed. duo Breveia dict' nuper Regis de Scire Fac. Vic. dict' nuper Civit. Dublin. direct ' unacum return ' process. & adjudicatione executionis superinde nobis indilate ubicunque etc. certifices hoc Breve nostrum nobis remitten. Teste Roberto Wright Mil ' apud Westm. viij die Novembris Anno Regni tertio  
Henly.   

Breve return ' process. & adjudication. 
The Return.  executionis superinde unde infra fit mentio Serenissimo Domino Regi ubicunque etc. humillime mitto & certifico prout interius mihi praecipitur sic respond.  
T. Nugent.   

Breve de Scire Fac. unde in Brevi huic Schedul anexat. fit mentio.   

The first Scifac. against Baron and Feme to revive the Judgement and make both liable.  
Carolus Secundus Dei gratia Angliae Scotiae Franciae & Hiberniae Rex Fidei Defensor etc. Vic. Com. Civit. Dublin salutem  
Cum Abel Ram de Civit. Dublin. Aldermannus nuper in Cur ' not stracoram nobis apud le Kings Courts per billam sine brevi nostro ac per Judicium ejusdem Cur. recuperavit versus Elizabetham Grey de Civit. Dublin. vid. tam quoddam debitum Octingent. librarum bonae & lelegalis monetae Angl. quam tres libr. undecim solid. & sex denar. consimilis monetae quam eidem Abel in eadem Cur. nostra coram nobis adjudicat. fuer. pro dampnis suis quae sustin. tam ccasione detention ' debiti illius quam pro mis. & custag. suis per ipsum circa sectam suam in hac parte apposite ' unde convict ' est sicut nobis constat de Recordo Executio tamen Judicij praed. adhuc restat faciend ' ac praed ' Elizabetha post Judicium praed. redditum cepit in virumsuum quendam Donat. Obrian Armiger ' prout ex insinuatione ipsius Abel accepimus Unde nobis supplicavit idem Abel sibi de remedio suo congruo in hac parte adhiberi & nos eidem Abel fieri volentes quod est justum vobis praecipimus qd ' per probos & legales homines de balliva vestra Scire fac. praefat. Donat. & Elizabethae quod sint coram nobis apud le Kings Courts die Mercurij prox ' post quinque Septimanas Paschae prox ' futur ' ad ostend. si quid pro se habeant vel dicere sciant quare praed. Abel executionem suam versus eos de debito & dampnis praed. habere non debet juxta vim formam & effectum recuperationis praed. si sibi viderit expedir ' & ulterius ad factur. & receptur. qd ' Cur ' nostra coram nobis de eo adtunc & ibidem cons. in hac parte & habeat. ibi nomina eorum per quos eis Scire Fac. & hoc Breve  
Teste Roberto Booth Mil ' apud the Kings Courts septimo die Maij Anno Regni nostri tricesimo primo.  
Cuppaidge Savage & Rives.   

Infranominat. 
The Return.  Donat. & Eli zabetha nihil habent aut eorum alter habet in balliva nostra per quod eis aut eorum alteri Scire Fac● possumus neque sunt neque eorum alter est invent. in eadem Sic respond ' Willielmus Cook & Thomas Tennant Armiger ' Vic.   

The alias sci. fac.  
Carolus Secundus Dei gratia Angliae Scotiae Franciae & Hiberniae Rex fidei Defensor etc. Vic. Com. Civit. Dublin. Salutem  
Cum Abel Ram de Civit. Dublin. Aldermannus nuper in Cur ' nostra coram nobis apud the Kings Courts per billam sine Brevi nostro ac per Judicium ejusdem Cur ' recuperavit versus Elizabetham Grey de Civitat. Dublin. vid. tam quoddam debitum Octingent ' librarum bonae & legalis monetae Angl. quam tres libras undecim solid. & sex denar ' consimilis monetae qui eidem Abel in eadem Curia nostra coram nobis adjudicat. fuer ' pro dampnis suis quae sustinuit tam occasione detentionis debiti illius quam pro mis. & custag. suis per ipsum circa sectam suam in hac parte apposit. unde convict ' est sicut nobis constat. de Recordo Executio tament Judicij praed. adhuc restat faciend. Ac praed. Elizabetha post Judicium praed. redditum cepit in virum suum quendam Donat. Obrian Armiger ' prout ex insinuatione ipsius Abel accepimus Unde nobis supplicavit idem Abel sibi de remed ' suo congruo in hac parte adhiberi & nos eidem Abel fieri volentes quod est justum vobis praecipimus sicut alias vobis praeceperimus qd. per probos & legales homines de balliva vestra Scire Fac. praefat. Donat. & Elizabethae qd ' sint coram nobis apud le Kings Courts die Veneris prox ' post Crastinum Sanctae Trinitatis proximo futuro ad ostend ' si quid pro se habeant vel dicere sciant quare praed. Abel executionem suam versus eos de debito & dampnis praed. habere non debet juxta vim formam & effectum recuperationis praed. si sibi viderit expediri & ulterius factur. & receptur. quod Cur. nostra coram nobis de eo adtunc & ibidem cons. in hac parte & habeatis ibi nomina eorum per quos eis Scire Fac. & hoc breve  
Teste Roberto Booth Mil ' apud the Kings Courts vicesimo primo die Maij Anno Regni nostri tricesimo primo.  
Cupppaidge, Savage & Ryves.   

Infranominat ' Donat ' & Elizabetha nihil habent aut eorum alter habet in balliva nostra per quod eis aut eorum alteri Scire Fac. 
The Return.  possimus neque sunt nec eorum alter est invent in eadem Sic respond ' Willielmus Cook & Thomas Tennant Armiger ' Vic.  
Record ' adjudication. executionis super praed. Breve de Scire Fac.  
Placita coram Domino Rege apud the Kings Courts de Termino Sanctae Trinitatis Anno Regni Domini nostri Caroli Secundi Dei gratia Angliae Scotiae Franciae & Hiberniae Regis Fidei Defensoris etc. tricesimo primo Teste Roberto Booth Milite. 
The Placita.   
Savage & Ryves.   

Dominus Rex mandavit Vic. Com. Civit. Dublin. 
The Entry of the Sci. Fac. upon the Roll.  Breve suum Clausum in haec verba ss. Carolus Secundus Dei gratia Angliae Scotiae Franciae & Hiberniae Rex Fidei Defensor etc. Vic. Com. Civit. Dublin. salutem Cum Abel Ram de Civit. Dublin. Aldermannus nuper in Cur ' nostra coram nobis apud the Kings Conrts per billam sine Brevi nostro ac per Judicium ejusdem Cur. recuperavit versus Elizabetham Grey de Civit. Dublin. vid. tam quoddam debitum octingentarum librarum bonae & legalis monetae Angl ' quam tres libr. undecim solid ' & sex denar ' consimilis monet. qui eidem Abel in eadem Curia nostra coram nobis adjudicat. fuer. pro dampnis suis quae sustin ' tam occasione detentionis debiti illius quam pro mis. & custag ' suis per ipsum circa sectam suam in ea parte apposite. unde convict ' est sicut nobis constat de Recordo Executio tamen Judicij praed ' adhuc restat faciend ' ac praed. Elizabetha post Judicium praed. redditum cepit in virum suum quendam Donat ' Obrian Armiger ' prout ex insinuatione ipsius Abel accepimus Unde nobis supplicavit idem Abel sibi de remedio suo congruo in hac parte adhiberi & nos eidem Abel fieri volentes quod est justum vobis precipimus qd ' per probos & legales homines de balliva vestra Scire Fac. praefat ' Donat. & Elizabethae qd ' sint coram nobis apud le Kings Courts die Mercurij prox ' post quinque septimanas Paschae prox ' futur. ad ostend ' si quid pro se habeant vel dicere sciant quare praed ' Abel executionem suam versus eos de debito & dampnis praed ' habere non debet juxta vim formam & effectum recuperationis praed ' si sibi viderit expediri & ulterius factur ' & receptur ' qd ' Cur ' nostra coram nobis de eo adtunc & ibidem cons. in hac parte Et habeatis ibi nomina eorum per quos eis Scire Fec. & hoc Breve Teste Roberto Booth Mil ' apud the Kings Courts septimo die Maij Anno Regni nostri tricesimo primo.  
Ad quem diem coram Domino Rege apud the Kings Courts ven ' praed ' Abel in propria persona sua & Vic. 
Return.  videlicet Willielmus Cook & Thomas Tennant Armiger ' return ' qd ' praed ' Donat. & Elizabetha nihil habent in balliva sua per quod eis Scire fac. 
Als. Sci. fa. awarded.  & potuissent nec fuer ' invent ' in eadem & praed ' Donat. & Elizabetha non ven ' Ideo sicut alias precept ' fuit eisdem Vic. qd ' per probos etc. Scire fac. praefat ' Donat ' & Elizabethae qd ' sint coram Domino Rege apud the Kings Courts die Veneris prox ' post Crastin ' Sanctae Trinitatis ad ostend ' in forma praed ' &c. si etc. & ulterius &c. idem dies dat' est praefat ' Abel ibidem etc.  
Ad quem diem coram Domino Rege apud the Kings Courts ven. 
Return.  praefat ' Abel per Faustinum Cuppaidge Attornatum suum & praefat ' Vic' ut prius return ' qd ' praed ' Donat ' & Elizabetha nihil habent in balliva sua per quod eis Scire fac ' potuissent nec sunt invent. 
Judgement qd. habeat executionem against Baron and Feme.  in eadem & praed ' Donat ' & Elizabetha non vener. sed default ' fec ' Ideo cons. est qd ' praed ' Abel habeat executionem suam versus praefat ' Donat ' & Elizabetham de debito & dampnis praed ' juxta vim formam & effectum recurerationis praed ' &c.  
Al' Breve de Scire fac ' in't ' Abel Ram quer ' & Donat ' Obrian & Elizabetham Uxor ' ejus defend.  
Scire fac. against Baron upon the Judgement upon the Scire fac. against them to make them both alike.  
Carolus Secundus Dei gratia Angliae, Scotiae Franciae & Hiberniae Rex Fidei Defensor etc. Vic's Com' Civitatis Dublin salutem  
Cum Abel Ram de Civitat ' Dublin Aldermannus nuper in Curia nostra coram nobis apud the Kings Courts per Billam suam sine Brevi nostro ac per Judicium ejusdem Curiae recuperavit versus Donatum Obrian Armigerum & Elizabetham Obrian alias Grey uxorem ejus tam quoddam debitum octingent ' librarum sterling ' quam tres libras undecim solid ' & sex denar ' consimilis monetae quae eidem Abel in eadem Curia nostra coram nobis adjudicat ' fuer ' pro dampnis quae sustin ' tam occasione detentionis debiti illius quam pro mis. & custag ' suis per ipsum circa sectam suam in hac parte apponit ' unde convict ' sunt sicut nobis constat de Recordo Executio tamen Judicij praed ' adhuc restat faciend ' prout ex insinuane ipsius Abel accepimus Unde nobis supplicavit idem Abel sibi de remedio suo congruo in hac parte adhiberi & nos volentes eidem Abel fieri quod est justum vobis praecipimus qd ' per probos & legales homines de Balliva vestra Scire fac ' praefat ' Donat ' Obrian & Elizabethae uzor ' ejus qd ' sint coram nobis apud the Kings Courts die Sabbati prox. post Quinden ' Sancti Martini prox. futur ' ad ostend ' si quid pro se habeant vel dicere sciant quare praed ' Abel executionem suam versus eos de debito & dampnis praed ' habere non debet juxta vim formam & effectum recuperationis praed ' si sibi viderit expediri & ulterius factur ' & receptur ' qd ' Curia nostra coram nobis de eo adtunc & ibidem consideraverit in hac parte Et habeatis ibi tunc nomina eorum ꝑ quos eye Scire fac ' Et hoc Breve  
Teste Roberto Booth Mil ' apud the Kings Courts sexto die Novembris Anno Regni nostri tricesimo secundo.  
Cuppaidge, Savage & Rives.   

Infranominat ' Donat ' & Elizabetha nihil habent aut corum alter habet in Balliva nostra per quod eis aut eorum alteri Scire fac. 
Return.  possumus neque sunt nec eorum alter est invent ' in eadem Sic respond ' Johannes Coin & Samuel Walton Armig ' Vic'.   

Alias Scire Fac.  
Carolus Secundus Dei gratia Angliae Scotiae Franciae & Hiberniae Rex Fidei Defensor etc. Vic. Com' Civitatis Dublin salutem  
Cum Abel Ram de Civitate Dublin Aldermannus nuper in Curia nostra coram nobis apud the Kings Courts per Billam sine Brevi nostro & per Judicium ejusdem Curiae recuperavit versus Donatum Obrian Armigerum & Elizabetham Obrian alias Grey uxorem ejus tam quoddam debitum octingent ' libr ' sterling ' quam tres libras undecim solid ' & sex denar ' consimilis monetae quae eidem Abel in in eadem Curia nostra coram nobis adjudicat ' fuer ' pro dampnis suis quae fustin ' tam occasione detentionis debiti illius quam pro mis. & custag ' suis per ipsum circa sectam suam in hac-parte apposit ' unde convict ' sunt sicut nobis constat de Recordo Executio tamen Judicii praed ' adhuc restar faciend ' ꝑut ex insinuatione ipsius Abel accepimus Unde nobis supplicavit idem Abel sibi de remedio suo congruo in hac parte adhiberi & nos volentes eidem Abel fieri quod est justum vobis praecipimus sicut alias vobis praeceperimus qd ' per probos & legales homines de Balliva vestra Scire fac. praefat ' Donat ' Obrian & Elizabethae uxor ' ejus qd ' sint coram nobis apud the Kings Courts die Mercurii prox. post Octab. Sancti Hillarii prox. futur ' ad ostend ' si quid pro se habeant vel dicere sciant quare praed ' Abel executionem suam versus eos de debito & dampnis praed. habere non debet juxta vim formam & effectum recuperationis praed. si sibi viderit expediri & ulterius factur ' & receptur ' quod Curia nostra coram nobis de eo adtunc & ibidem cons. in hac parte Et habeas ibi tunc nomina eorum per quos eis Scire fec. Et hoc breve  
Teste Robero Booth Mil. apud the Kings Courts vicesimo octavo die Novembris Anno Regni nostri tricesimo secundo.  
Cuppaidge, Savage & Ryves.   

Infranominat ' Donat ' & Elizabetha nihil habent aut eorum alter habet in balliva nostra per quod eis aut eorum alteri Scire Fac. 
Return.  possumus neque sunt nec eorum alter est invent. in eadem Sic respond ' Johannes Coin & Samuel Walton Armiger ' Vic'.  
Record ' adjudication ' execution ' supper praed. breve de Scire Fac ' ult ' mentionat '.  
Placita coram Domino Rege apud the Kings Courts de Termino Paschae Anno Regni Domini Caroli Secundi Dei gratia Angliae Scotiae Franciae & Hiberniae Regis Fidei Defensoris etc. 
The Placita  tricesimo tertio Test. Willielmo Davis Mil '  
Savage & Ryves.   

Dominus Rex mandavit Vic' Com' Civitat ' Dublin Breve suum Clausum in haec verba ss.  
The Entry of the Scire Fac.  
Carolus Secundus Dei gratia Angliae Scotiae Franciae Hiberniae Rex Fidei Defensor etc. Vic' Com. Civitat. Dublin Salutem  
Cum Abel Ram de Civitate Dublin Aldermannus nuper in Curia nostra coram nobis apud the Kings Courts per Billam sine Brevi nostro ac per Judicium ejusdem Curiae recuperavit versus Donatum Obrian Armigerum & Elizabetham Obrian alias Grey uxorem ejus tam quoddam debitum octingent ' librarum sterling. quam tres libr. undecim solid. & sex denar ' consimilis monetae qui eidem Abel in eadem Curia nostra coram nobis adjudicat ' fuer ' pro dampnis suis quae sustin ' tam occasione detentionis debiti illius quam pro mis. & custag ' suis per ipsum circa sectam suam in hac parte apposite ' unde convict ' sunt sicut nobis constat de Recordo Executio tamen Judicii praed. adhuc restat faciend ' prout ex insinuatione ipsius Abel accepimus Unde nobis supplicavit idem Abel sibi de remed ' suo congruo in hac parte adhiberi & nos volentes eidem Abel fieri quod est justum vobis praecipimus qd. per probos & legales homines Balliva vestra Scire Fac ' praefat Donat ' Obrian & Elizabethae uxori ejus qd ' sint coram nobis apud the Kings Courts die Sabbati prox. post Quinden ' Sancti Martini prox. futur ' ad ostend ' si quid pro se habeant vel dicere sciant quare praed ' Abel executionem suam versus eos de debito & dampnis praed ' habere non debet juxta formam & effectum recuperationis praed. si sibi viderit expediri & ulterius factur ' & receptur ' quoth Curia nostra coram nobis adtunc & ibidem de eo cons. in hac parte Et habeatis ibi tunc nomina eorum per quos eis Scire fec. Et hoc Breve  
Teste Roberto Booth Mil ' apud the Kings Courts sexto die Novembris Anno Regni nostri tricesimo secundo.  
Ad quem diem coram Domino Rege apud the Kings Courts ven ' praed ' Abel in propria persona sua & Vic. 
Return.  videlicet Johannes Coin & Samuel Walton Armigeri return ' qd ' praed ' Donat ' Obrian & Elizabetha uxor ejus nihil habuer ' in Balliva sua per quod eis Scire fac. potuissent neque fuer ' invent ' in eadem & praed ' Donat ' & Elizabetha non ven ' Ideo sicut alias precept ' fuit eisdem Vic. 
Alias Scire Fac. awarded.  qd ' per probos etc. Scire fac. praefat. Donat ' & Elizabethae quod essent coram Domino Rege apud the Kings Courts die Mercurii prox. post Octab. Sancti Hillarii ad ostend ' in forma praed ' si &c. Et ulterius etc. Idem dies dat' est praefat ' Abel ibidem etc.  
Ad quem diem coram dicto Domino Rege apud the Kings Courts ven ' praed ' Abel per praed. Faustinum Cuppaidge Attornatum suum & praefat ' Vic' ut prius return ' qd ' praed ' Donat ' & Elizabetha nihil habuer ' in Balliva sua per quod eis Scire fac. potuissent neque fuer ' invent ' in eadem & praed. Abel optulit se quarto die placiti versus praefat. 
The Defendants appear, and plead that the Money due upon the Judgement was levied upon a Fi. Fa.  Donatum & Elizabetham Et super hoc idem Donat ' & Elizabetha per Henricum Daniel Attornatum suum ven ' & dicunt qd ' praefat ' Abel executionem versus eos de debito & dampnis praed ' habere non debet quia dic. qd ' praed ' Abel infra unum annum post recuperationem praed ' prosecut ' fuit Breve Domini modo Regis adtunc Vic' Com' Civitatis Dublin. direct ' de Fieri fac. de bonis & catallis praefat ' Donati & Elizabethae debit ' & dampn ' praed ' & qd ' ill ' haberent hic in Curia die Mercurii prox. post Quinden ' Paschaes prox. post recuperationem debiti & dampn ' praed ' add reddend ' praefat ' Abel Ram pro debito & dampnis praed ' & dicunt qd ' iidem Vic. virtute ejusdem Brevis apud Civitatem Dublin. in Parochia Sancti Michaelis Archangeli in Warda Sancti Michaelis in Com' ejusdem Civitatis fecer ' & levaver ' debitum & dampna praed. de bonis & catallis ipsorum Donat ' & Elizathae Et hoc parati sunt verificare unde petunt Judicium si praedictus Abel executionem suam de debito & dampnis praedict. versus eos iterum habere debeat etc.  
Postea scilicet die Sabbati prox. 
Relicta Vereficationis.  post Crastin ' Ascentionis Domini isto eodem Termino coram dicto Domino Rege apud the Kings Courts ven ' parts praed ' per Atornatos suos praed ' Et super hoc iidem Donatus & Elizabetha per Attornatum suum praed ' relict ' per eos prior ' verification ' per ipsos in forma praed ' superius placitat ' dicunt qd ' ipsi non possunt dedicere quin praed ' Abel executionem suam versus eos de debito & dampnis mis. 
Judgement thereupon.  & custag ' praed. virtute recuperationis praed. habere debeat Ideo considerate ' est qd ' praed ' Abel habeat Executionem suam versus praefat ' Donatum & Elizabetham de debito mis. & custag ' praed ' juxta vim formam & effectum recuperationis praed ' &c. Super quo praed ' Donat ' ut prius dic ' qd ' in Record ' & process. praed ' necnon in adjucatione recuperation ' praed '  est erratum allegando Errores praed. 
The Plaintiff counts upon his Errors.  per ipsum superius allegat ' ac petit qd. Judicium praed ' ob Errores ill ' & al' in Record ' & process. praed. existen. revocetur adnulletur & penitus pro nullo habeatur ac qd ' idem Donat ' add omnia quae ipse occasione Judicii praed ' amisit restituatur quodque praed ' Abel ad Errores praed. rejungeret.  
Et superinde praed. 
The Defendant in the Errors pleads in Nullo est erratum.  Abel dicit qd. nec in Record. & process. pred. nec in redditione Judicii praed ' nec in adjudicatione executionis super Judic ' illud in ullo est erratum Et pet ' similiter qd ' Curia dicti Dni. Regis nunc hic procedat tam ad examinationem tam Record ' & process. praed. quam materias praed ' superius pro errore assignat ' & qd ' Judic ' praed. in omnibus affirmetur Sed quia Curia dicti Dni. Regis nunc hic de Judicio suo de & super praemissis reddend ' nondum advisatur dies inde dat' est partibus praed ' coram Domino Rege usque in Octab. 
Continuances.  Sancti Hillarii ubicunque etc. de Judicio suo de & super premissis audiend ' eo qd ' Curia dicti Domini Regis nunc hic inde nondum etc. Ad quem diem coram Domino Rege apud Westm. ven ' parts praed. per Attornatos suos praed. Sed quia Curia dict Dni. Regis nunc hic de Judicio de & super praemissis reddend ' nondum advisatur dies inde dat' est partibus praed ' coram Domino Rege usque a die Paschae in quindecim dies ubicunque etc. de Judicio suo inde audiend ' eo qd ' Curia dicti Domini nunc hic inde nondum etc. Ad quem diem coram Domino Rege apud Westm ' ven ' parts praed ' per Attornatos suos praed ' Sed quia Curia dicti Domini Regis nunc hic de Judicio suo de & super praemissis reddend ' nondum advisatur dies inde dat' est partibus praed ' coram Domino Rege usque in Crastino Sanctae Trinitatis ubicunque etc. de Judicio suo inde audiend ' eo qd ' Curia dicti Domini Regis nunc hic inde nondum etc. Ad quem diem coram Domino Rege apud Westm. ven ' parts praed ' per Attornatos suos praed ' sed quia Curia dicti Domini Regis nunc hic de Judicio suo de & super praemissis reddend ' nondum advisatur dies inde dat. est partibus praed ' coram Domino Rege usque a die Sancti Michaelis in tres Septimanas ubicunque etc. de Judicio suo inde audiend ' eo qd ' Curia dicti Domini Regis nunc hic inde nondum etc. Ad quem diem coram Domino Rege apud Westm. ven ' parts praed ' per Attorn ' suos pred' sed quia Curia dicti Domini Regis nunc hic de Judicio suo de & super praemiss. reddend ' nondum advisatur dies inde dat' est partibus praed ' coram Domino Rege usque in Octab. Sancti Hillarij ubicunque etc. de Judicio suo inde audiend ' eo qd ' Curia dicti Domini Regis nunc hic inde nondum etc. Postea scilicet a die Paschae in quindecim dies extunc prox. sequen ' usque quem diem Record ' & process. praedict. 
The Process discontinued, but revived by Act of Parliament. Stat. 1 W. &c M.  praedict. antea remanen ' sine die virtute cujusdam Act ' Parliamenti confect ' apud Westm ' decimo tertio die Februarii Anno Regni Domini Willielmi & Dominae Mariae nunc Regis & Reginae Angliae etc. primo revivificat ' continuat ' & adjornat ' fuit coram dicto Domino Rege & dicta Domina Regina Willielmo & Maria apud Westm ' ven ' parts praed. per Attornatos suos praed. sed quia Curia dict' Domini Regis & Dominae Reginae nunc hic de Judicio suo de & super praemiss. reddend ' nondum advisatur dies inde dat' est partibus praed. coram Domino Rege & Domina Regina usque a die Paschae in tres Septimanas ubicunque etc. 
Continuances.  de Judicio suo inde audiend ' eo qd ' Curia dict' Domini Regis & Dominae Reginae nunc hic inde nondum etc. Ad quem diem coram Dno. Rege & Dna. Regina apud Westm ' vener ' parts praed. per Attornatos suos praed ' super quo visis & per Cur ' dicti Domini Regis & Dominae Reginae nunc hic plenius intellect ' omnibus & singulis praemiss. diligenterque examinat ' & inspect ' tamburlaine Record. & process. praed. ac Judic ' & adjudication ' executionis super eisdem reddit ' quam praed. causas & materias per praed Donatum Obrian superius pro Error ' assign ' videtur Curiae Domini Regis & Dominae Reginae nunc hic qd ' nec in Record ' & process. predict ' nec in redditione Judicij predict ' & adjudicatione executionis superinde in ullo est errat ' ac qd ' Record ' ill ' in nullo vitiosum aut defectivum existit Ideo considerate ' est qd ' Judicium praed ' & adjudication ' executionis superinde in omnibus affirmetur ac in omni suo robore stet & effectu dict' causis & materiis superius pro Error ' assign ' in aliquo non obstante Et ulterius per Cur. 
Judgement affirmed.  Domini Regis & Dominae Reginae nunc hic cons. est qd ' predict ' Abel Ram recuperet versus praefatum Donatum Obrian octodecim libras eidem Abel per Curiam Domini Regis & Dominae Reginae nunc hic secundum formam Statuti in hujusmodi casu edit ' & provis. adjudicat ' pro mis. custag ' & dampn ' suis quae sustin ' occasione dilationis executionis Judicij predict ' praetextu prosecutionis predict ' Brevis de Errore Et qd ' praedictus Abel habeat inde executionem etc.    

Obrian versus Ram.  
ERror to reverse a judgement given in Ireland, 
Whether a Sci. fa. will lie against the Husband alone, after the death of the Wife, upon a Judgement had against her dum sola.  upon a Scire Fac. brought against the Plaintiff in the Errors, setting forth, that Debt was brought upon a Bond against Elizabeth Grey, and a judgement was thereupon obtained for 800 l. dum sola: That the said Elizabeth afterwards intermarried with Mr. Obrian: That a Scire Facias was brought upon that judgement against Husband and Wife, to show cause why the Plaintiff should not have execution. That upon this Scire Facias there were two Nichils returned, and thereupon judgement was had against Husband and Wife. It rested for a year and a day and, than the Wife died, and the Plaintiff brought a new Scire Fac. against the Husband alone, to show cause why he should not have Execution upon the first judgmont.  
The Defendant pleaded, that there was another Scire Fac. brought against him and his Wife for the same Cause, etc. And upon a Demurrer to this Plea, judgement was given in Ireland against him.  
The Question now was, whether this Scire Fa. will lie against the Husband alone, after the death of his Wife.  
This Case was argued by Mr. Finch and Mr. Pollexfen, that the Husband was not chargeable.  
It was admitted on all sides, that if a Feme sole is indebted and marries, that an Action will lie against the Husband and Wife, and he is liable to the payment of her Debts.  
It was agreed also, that if a judgement be had against a Feme sole, and she marries, and afterwards dies, that the Husband is not chargeable, because her Debts before Coverture shall not charge him, unless recovered in her Life-time.  
In like manner no Debts which are due to her dum sola, shall go to the Husband by virtue of the inter-marriage, if she die before those are recovered,; but her Administrator will be entitled to them, which may be the Husband, but then he hath a Right only as Administrator, 
1 Roll Abr. 351.  and the reason is, because such Debts before they are recovered are only choses in Action.  
And from hence the Council did infer, that the judgement in this Case against the Wife, dum sola, did not charge the Husband.  
Then the Question will be, if the Husband is not chargeable by the Original judgement, whether the judgement on the Scire Fac. had not made an alteration, and charged him after the death of his Wife?  
And as to that, it was said that this judgement upon the Scire Fac. made not new charge, for 'tis only quod habeat executionem, etc. and carries the first judgement no farther than it was before, for 'tis introduced by the Sci. Fac.  
At the Common Law no Execution could be had upon a judgement after a year and a day; and there was then no remedy but to bring an Action of Debt upon that judgement.  
This Inconvenience was remedied by the Statute of Westm. 
W. 2. cap. 45.  the 2. which gives a Scire Fac. upon the judgement, to show cause why Execution should not be had, which can be no more than a liberty to take Execution upon the Original judgement, which cannot charge the Husband in this case, because 'tis only a consequence of that judgement, and creates no new charge, for a Release of all Actions will discharge this award of Execution.  
But the Reasons why the original judgement shall not be carried farther by the judgement in the Scire Fac. are as follow.  
1. By considering the nature of a Scire Fac. which lay not at the Common Law, but is given by the Statute in all persosonal Actions; the words whereof are these, Viz. 
2 Inst. 469. Sid. 351.  Observandum est de caetero quod ea quae inveniuntur irrotulat, etc.  
Upon which words it is evident, that the execution of the first judgement on Record is all which is given by this Act after the year and day, and it takes off that bar which was incurred by the lapse of time, and gives a speedy Execution of the judgement recorded.  
2. The Proceed upon a Scire Facias show the same thing, for the Writ recites the first judgement, and then demands the Defendant to show cause why the Plaintiff should not have Execution thereon juxta vim formam & effectum recuperationis praed. but prays no new thing.  
3. A Scire Facias is not an Original but a judicial Writ, which depends purely upon the first judgement, 
1 Roll. Abr. 777. pl. 6. 8 Co. 143 Dr. Drurie's Case.  and a Writ of Error suspends the execution of both; so likewise if the Original judgement be reversed, even a judgement obtained upon a Scire Facias, will be reversed in like manner.  
4. The Law doth not charge a Man without an Appearance, but here is none; and the Statute can never operate upon this Case, because that extends only to such judgements upon which there has been a Recovery; and here is nothing recovered upon this Scire Facias, for 'tis only to have Execution upon the first judgement.  
If the Law should be otherwise, this absurdity would follow, Viz. There would be a Recovery without a Record; for the purport of the Scire Facias is only to have Execution according to the form and effect of the Record, and the very Record itself doth not charge the Husband.  
Besides, the first judgement did charge the Lands of the Wife, which are still liable to satisfy the Debt; why therefore must the Lands of the Husband be charged? Cannot the Administrator of the Wife bring a Writ of Error to reverse this judgement? and if it should be reversed, shall the Husband pay the Debt, and the Administrator of the Wife be restored?  
The Objections made by the Council on the other side against this Opinion were, viz. That if an Action of Debt will lie upon a judgement in a Scire Facias, the Original judgement is by this means carried farther, for without a new Recovery Debt will not lie; 
F.N.B. 122. E.  and to prove this there is and Authority in Fitzherbert, where a Prior had judgement for an Annuity, and brought a Scire Fac. upon that judgement, against the Successor of the parson who was to pay it, and obtained a judgement upon that Scire Fac. to recover the arrearages, and afterwards brought an Action of Debt upon the last judgement, and the Book says fuit maintain.  
There is another Case in 2 Leon. 
2 Leon. 14. 4 Leon. 186. 15 H. 7.16.  where 'tis held, that an Action of Debt will lie upon a judgement in a Scire Facias, upon a Recognizance.  
Which Objections may receive this Answer.  
First, As to the Case in Fitzherbert, 'tis admitted to be Law, but 'tis not an Authority to be objected to this purpose, because the first judgement for the Annuity charges the Successor; but the Original judgement in this Case doth not charge the Husband, so the Cases are not parallel.  
The like answer may be given to the Case in Leonard, for a Recognizance is a judgement in itself, and Debt will lie upon it without a Sci. Fa. upon that judgement.  
But on the other side it was argued, 
E contra.  that the award of execution is absolute against Husband and Wife; for 'tis a Recovery against both, whereas before it was only the Debt of the Wife, but now 'tis joint against the one as well as the other.  
The judgement upon the Sci. Fa. is a distinct Action.  
It cannot be denied but that if a Woman be indebted and marrieth, the Husband is chargeable during the Coverture, 
Bro. Ab. tit. Baron and Feme pl. 27. 49 E. 3.35. b.  which shows that by the Marriage, he is become the principal Creditor.  
As to the Sci. Fa. 'tis true, at the Common Law, if a Man had recovered in Debt, and did not sue forth Execution within a year and a day, he must then bring a new Original, 
1 H. 5. 5. a 43 Ed. 3.2. b.  and the judgement thereon had been a new Recovery; but now a Sci. Fa. is given by the Statute instead of an Original; and therefore a judgement thereon shall also be a new judgement; for tho' 'tis a judicial Writ yet 'tis in the nature of an Action, because the Defendant may plead any matter in Bar of the Execution upon the first judgement, 
1 Inst. 290. b.  and 'tis for this reason that a Release of all Actions is a good bar to it.  
Besides, 
Rast. Ent. 193. 4 Leon. 186. Dyer 214. b.  an Action of Debt will lie upon a judgement on a Sci. Fa. which shows that 'tis an Action distinct from the Original, and upon such a judgement the Defendant may be commited to Prison several years afterwards without a new Sci. Fa.  
The Husband may have execution of a judgement recovered by him and his Wife, after the death of his Wife without a Sci. Fa. 
1 Mod. Rep. 179.  for the judgement hath made it a proper Debt due to him, and he alone may bring an Action of Debt upon that judgement, and it seems to be very reasonable that he should have the benefit of such a judgement and yet not be charged after the death of his Wife, when there hath been a Recovery against both in her life-time.  
This is like the Case where a Devastavit is returned against Husband and Wife as Executrix, 
Moor 299. 3 Cro. 216. Cro. Car. 603. Sid. 337.  and a judgement thereon quod querens habeat executionem de bonis propriis, the Wife dies, yet the Husband shall be charged, for the Debt is altered.  
If it should be otherwise this inconvenience would follow, that if the Wife should die, 
F.N.B. 121. c. 1 Rol. Abr. 351. 10 H. 6.11.  the Husband will possess himself of her Estate, and defraud the Creditors; so that he takes her but not cum onere. But the Law is otherwise, for if a Feme being Lessee for years doth marry, and the Rent is behind, and she dies, the Husband shall be charged with the Rend arrear, because he is entitled to the Profits of the Land by his marriage.  
To which it was answered, that if a Man should marry an Exerecutrix, and then he and his Wife are sued, and judgement obtained against them to recover de bonis testatoris and thereupon a Fi. Fa. is awarded to levy the Debt and Damages, and the Sheriff returns a Devastavit, and then the Wife dies, the Husband is not chargeable, because the judgement is not properly against him, who is joined only for conformity; but if upon the return of the Devastavit there had been an award of execution De bonis propriis, that would have been a new judgement, and the old one De bonis testatoris had been discharged, 
1 Roll. Abr. 351.  and then the Husband must be charged for the new wrong. Adjornatur.  
Afterwards in 1 Will. & Mar. the judgement was affirmed.   

Bowyer versus Lenthal.  
INdebitatus Assumpsit quantum meruit ad insimul computasset. 
Valerent for Valebant good after Verdict.  The Plaintiff had a judgement by default in the Court of Common-Pleas, and a Writ of Enquiry was brought, and entire Damages given; and now the Defendant brought a Writ of Error, and it was argued, that if any of the Promises be ill, judgement shall be reversed; the Error now assigned was in the second Promise, Viz. That in consideration that the Plaintiff would let the Defendant have Meat, Drink and Lodging, he promised to pay so much Quantum rationabiliter valerent, it should have been, valebant at the time of the Promise made, Sed non allocatur. So the judgement was affirmed.    

DE Termino Paschae, Anno 4 Jac. II. in Banco Regis, 1688.  

Wright Chief Justice.  
Holloway Justices.  
Powel Justices.  
Allibon Justices.   

Powis, Attorney General.  
Wm. Williams, Solicitor General.   
NOTA, Wednesday May 2. being the first day of this Term, Sir Bartholomew Shower Recorder of London, was called within the Bar.  

Heyward versus Suppie.  
IN an Action of Covenant which was to make such an Assignment to the Plaintiff, 
Covenant to make an Assignment as Council should advise.  according to an Agreement made between him and the Defendant as Council should direct and advise, and for non-performance thereof this Action was brought; the Defendant pleaded non est factum, and judgement was obtained against him.  
Upon which a Writ of Error was brought, and the common Error assgned. It was objected that the Plaintiffs Council should give the advice because he is the person interested.  
This Objection was answered by Mr. Pollexfen, who said, that the Defendant had likewise an interest in this matter, for 'tis an advantage to him to make the Assignment that his Covenant might be saved; 'tis true, it had been otherwise if the Covenant had been to make such a Conveyance as Council should advise, for then the person to whom the Covenant is made may choose whether he will have a Feoffment, Release, or Confirmation, and then his Council should advise what sort of Conveyance is proper.  
But here it is to make an Assignment, and such as the Parties had agreed on.  
If a Man should be bound to give another such a Release as the judge of the Prerogative Court shall think fit, 
5 Co. 23. Lamb's Case. 1 Rol. Abr. 424. pl. 8.  the person who is so bound must procure the judge to direct what Release shall be given, because the Condition is for his benefit, and he hath taken upon him to perform it at his Peril.  
'Tis usual for Men to have Council on both sides, to put their Agreements into method; but in this Case it being left generally as Council shall direct, what reason can be given why the Defendants Council shall not be intended; especially when it seems by the penning of the Covenant he shall? For an Assignment is to be made as Council shall direct, and here being a Verdict for the Plaintiff, it must now be presumed that the Defendants Council was first to give the advice, and then he was to make the Assignment.  
E contra. 
E contra.  It was argued, that first as to the Verdict, 'tis not materially objected in this Case, because the Plea is non est factum, so that nothing of the special matter could come in Evidence.  
Now admitting this Covenant to be general, yet one of the Parties must make his choice of Council, before he can entitle himself to an Action.  
All Deeds are taken according to the general intendment, and therefore by this Covenant his Council is to advise to whom the Assignment is to be made; 
3 Bulstr. 168.  for if the Council of the Defendant should advise an insufficient Deed, that would not have saved his Covenant.  
Besides, the Plaintiff hath not averred that Council did not advise, and therefore the Defendant could not plead any thing but non est factum. Adjornatur.   

Anonymus.  
A Pleint was removed out of the Lord Mayor's Court by Habeas Corpus, the Return whereof was, 
Exceptions to a By-Law.  that the City of London was an ancient City Incorporate, and that time out of mind there was a Custom that the Portage and unlading of all Coals and Grain coming thither should belong to the Mayor and Aldermen, etc. That there was a Custom for them to regulate any Custom within the City, etc.  
Then they set forth an Act of Common-Council, by which the Porters of Billingsgate were made a Fellowship, and that the Metres of Corn should from time to time give notice to the Porters to unlade such Corn as should arrive there, and that no Bargeman, not being Free of the said Fellowship, shall unlade any Corn upon the Forfeiture of 20 s. to be recovered in an Action brought in the Name of the Chamberlain, and that the Party offending shall have no Essoign or Wager of Law.  
Then they set forth the judgement in the Quo Warranto, and the re-grant, and that the Defendant not being of the said Fellowship, did unlade one hundred Quarters of Malt, etc.  
Sergeant Thompson took many Exceptions to this By Law, but the most material were,  
1. It appears upon the Return, that the City of London hath assumed an Authority to create a Fellowship by Act of Common Council, which they cannot; for 'tis a Prerogative of the Crown so to do; and they have not averred or showed any special Custom to warrant such an Authority.  
2. They have made this By-Law too general, for if a Man should carry and unlade his own Goods there, he is liable to the Forfeiture, in which Case he ought to be excepted.  
3. This Act of Common Council prohibits Bargemen not being Free of the Fellowship of Porters, to unlade any Coals or Grain arriving there, and they have not averred that the Malt unladed did arrive, etc. so they have not pursued the words of the By-Law.  
4. They say in this Law, 
Godb. 107.  that the person offending shall have no Essoign or Wager of Law, which is a Parliamentary Power and such as an inferior jurisdiction ought not to assume. Adjornatur.   

Beak versus Thyrwhit.  
THere was a Sentence in the Court of Admiralty, 
Whether Trover will lie for a Ship after Sentence in Admiralty for the same Ship.  concerning the Taking of a Ship, and afterwards an Executrix brought an Action of Trover and Conversion for the same.  
The Defendant after an Imparlance pleads that at the time of the Conversion he was a Servant to King Charles the Second, and a Captain of a Man of War called the Phoenix, and that he did seize the said Ship for the Governor of the East-India Company, she going in a trading Voyage to the Indies contrary to the King's Prohibition, etc.  
And upon a Demurrer these Exceptions were taken to this Plea.  
1. The Defendant sets forth that he was a Servant to the King, but hath not showed his Commission to be a Captain of a Man of War.  
2. That he seized the Ship going to the Indies contrary to the King's Prohibition, and hath not set forth the Prohibition itself.  
It was Argued by the Council contra. That it may be a Question whether this was the Conversion for which this Action is brought, for it was upon the Sea, and the Defendant might plead to the juisdiction of this Court the Matter being then under the Cognizance of the Admiralty.  
But as to the Substance of this Plea 'tis not material for the Defendant either to set forth his Commission or the King's Prohibition; he hath showed enough to entitle the Court of Admiralty to a jurisdiction of this Cause, and therefore this Court cannot meddle with it, for he expressly affirmeth that he was a Captain of a Man of War, and did seize this Ship, etc. which must be intended upon the Sea; so that the Conversion might afterwards be upon the Land; 
Cro. Eliz. 685.  yet the original cause arising upon the Sea, shall and must be tried in the Admiralty; and it having already received a determination there, shall not again be controverted in an Action of Trover.  
The Case of Mr. 
3 Keb. 785.  Hutchinson was cited to this purpose, who killed Mr. Colson in Portugal, and was acquitted there of the Murder; the Exemplification of which Acquittal he woduced under the great Seal of that Kingdom being brought from Newgate by an Habeas Corpus to this Court; notwithstanding the King was very willing to have him tried here for that Fact; the consideration whereof he referred to the judges, who all agreed, that he being already acquitted by their Law, could not be tried again here. Adjornatur.   

Smith versus Pierce.  
A Special Verdict was found in Ejectment, 
A Term for years was devised for payment of Debts, the Remainder over in Tail, he in Remainder enters and levies a Fine and settles the Land upon his Wife for life and dies, the Wife surviving, and the Debts not paid, whether this Term is barred by the Fine and Non-claim.  the Substance of which was, That Robert Basket was seized in Fee of the Lands in Question, who by Will devised it to Philip Basket and others for 99 years, with power to grant Estates for the payment hf the Debts and Legacies of the Testator, the Remainder in Tail to John Basket his Brother; but that if he gave Security to pay the said Debts and Legacies or should pay the same within a time limited that then the trusties should assign the Term to him, etc.  
John Basket entered after the death of his Brother with the assent of the said trusties, and received the Profits, and paid all the Legacies and all the Debts but 18 l.  
The jury find that John had Issue a Daughter only by his first Wife, after whose death he married another Woman, and levied a Fine, and made a Settlement in consideration of that Marriage upon himself for Life, and upon his Wife for Life, with divers Remainders over; that he died without Issue by his second Wife, who entered, and five years were passed without any claim, etc.  
And now the Heir at Law in the name of the trusties brought this Action.  
The Questions were,  
1. Whether the Term for 99 years thus devised to the trusties was bound by this Fine and Nonclaim or not?  
2. Whether it was divested and turned to a Right at the time of the Fine levied?  
For if it was not, than the Fine could not operate upon it.  
It was agreed that as a Disseisin is to a Freehold, so is a divesting to a Term, and that a Fine and Non-claim is no Bar, but where the Party at the time of the levying thereof had a Will to enter, and when the Estate of which 'tis levied is turned to a Right.  
That in the Case at the Bar the Entry of John Basket was tortuous, because the legal Estate was still in the trusties.  
But if he had gained any Right by his Entry 'tis only a Tenancy at Will to them, for they took notice of the Devise, and he entered by their consent; and such a Right is not assignable, and then a Fine levied is no Barr.  
To prove this, 
9 Co. 106.  Margaret Prodger's Case was cited, where the the Lord granted a Copyhold to John, Elizabeth and Mary for their Lives, and afterwards by Deed enroled sold the Land to John in Fee, and levied a Fine to him and his Heirs, etc. and five years passed without any Claim; John died, his Son entered and levied another Fine to trusties to the use of himself and Margaret his Wife for Life, the Remainder to his own right Heirs; the Son died and his Wife survived, who having a Freehold for Life distrained, and the Husband of Elizabeth brought a Replevin: It was adjudged that this Fine and Nonclaim did not bar those in Remainder, becase the Bargain and Sale to John did not divest their Estate and turn it to a Right; for the Lord did what he might do, and John accepted what he might lawfully take, who being in possession by virtue of a particular Estate for Life, could not by this acceptance divest the Estate of her who had the Freehold; and the Fine and Nonclaim could not do it; for to what purpose should he make any Claim when he was in actual possession of the thing to be demanded? And he who is so in possession need not make any Claim either to avoid a Fine or a collateral Warranty.  
Now though at the Common Law there must be Livery and Seisin to create an Estate of Freehold, 
3 Co. Fermer 's Case.  yet any thing is sufficient to make an Estate at Will, in which neither the Inheritance or the Title of the Land is concerned, and therefore a Fine levied by such a Tenant is no Barr.  
'Tis true, 
Sid. 458. Freeman versus Barns.  if a Lease be made for an hundred years in Trust to attend the Inheritance, and Cestuy que Trust continues in possession, and devises to another for fifty years, and levies a Fine and the five years pass without Claim, he being still in possession after the first Lease made is thereby become Tenant at Will; and by making the second Lease, the other is divested and turned to a Right, though he was not a Disseisor, and so 'tis barred by the Fine, because the Cestuy que Trust of the term of one hundred years, was also Owner of the Inheritance.  
But in the Case at the Bar John shall not be a Disseisor but at the Election of the trusties of the Term of 99 years, to prove which there are many Authorities in the Books.  
As if Tenant at Will make a Lease for years and the Lessee enters, 
Latch. 53. 1 Leon. 121. Lit. Sect. 588.  'tis not a Disseisin, but at the Election of him who hath the Freehold, and even in such Case if the Tenant of the Freehold should make a Grant of the Land 'tis good, though not made upon the Land itself, for he shall not be taken to be out of possession but at his own Election.  
'Tis like the common Case of a Mortgagee for years where the Mortgagor continues in possession twenty years afterwards, and pays the Interest, and in that time hath made Leases and levied a Fine, this shall not bar the Mortgagee, for the Mortgagor is but Tenant at Will to him.  
The trusties need not make any claim in this Case, because there was no transmutation of the possession, so they could take no notice of the Fine.  
'Tis true, John Basket entered by their consent, but still as Tenant at Will to them; and the Acts done by him after his Entry will not didst this Term, for though he made a Bargain and Sale of the Lands, yet nothing will pass thereby but what of right aught to pass.  
He likewise demised the Lands to Vndertenants for years, but 'tis not found, that they entered; but admitting they did enter, yet that could not displace this Term, for these Tenants claimed no more than for one or two years and made no pretence to the whole Term.  
But if by either of these Acts the Term should be divested; yet still it must be at the election of those who have the Interest in it. 
Dyer 61, 62, 173.   
The Case of 
* Cro. Car. 302. 1 Rol. Abr. 661.  Blunden and Baugh which is grounded upon Littleton's Text Sect. 588. is an Authority to this purpose, which was, The Father was Tenant in Tail and his Son was Tenant at Will, who made a Lease for years, than both Father and Son join in a Fine to the use of the Son for Life and to Elizabeth his Wife for Life, the Remainder to the Heirs Males of the Body of the Son, who died without Issue Male; the Lessee being in possession made a Conveyance of the Estate by Bargain and Sale to Charles Lord Effingham, who was Son and Heir of the Tenant in Tail, who made a Lease to the Plaintiff who was ousted by the Defendant Elizabeth.  
The Question in which Case was, whether by the Entry of the Son, who was Tenant at Will, and his making of this Lease the Father was disseised of the Freehold? And it was held not, for it was found in that Verdict that he occupying at Will, and entering by his Father's Assent the Lease was also intended to be made by his Assent.  
But on the other side it was said that this Fine was a Bar by the express Words of the Statute of H. 7. 
E contra.  which excludes in all Cases but where there is Fraud or the person is incapable, 
4 H. 7. c. 24.  or where the Right to be barred is not divested.  
In this Case John Basket had an Interest and present Right, and though it be closed with a Trust, yet that will not make any difference.  
1. 
Cro. Car. 550. 10 Co. 56.  Here is no Fraud, for the Fine was levied by Tenant in Tail in possession; but if there had been Fraud it ought to be found, otherwise it shall not be presumed.  
This is not like Blunden's Case, for there the Son was Tenant at Will, but 'tis not found by this Verdict that John occupied at Will.  
There is no difference between this Term and a Trust of a Term to attend the Inheritance, whose Interest shall be barred by such a Fine and Nonclaim, because the Trust is included in the Fine, and therefore the trusties not making of their Claim within the five years are for ever excluded.  
It cannot be denied but a Term for years is such an Interest which may be barred by Fine, 
5 Co. 123.  'tis Saffin's Case expressly, which was a Lease for years to commence in futuro after a Lease then in being should be determined; the first Lease ended; the second Lessee did not enter, but the Reversioner did, and made a Feoffment, and levied a Fine and five years passed without Entry or Claim by the second Lessee; it was adjudged that this Fine was a Bar to him, for when his future Interest commenced, then and not before he had such a present Interest in the Land, which might be divested, and turned to a Right.  
To which it was answered, that this differs from Saffin's Case, which was an interest Termini, and the Case of Alport which was an Executory Devise.  
If John Basket had still continued in Possession, it might have altered the Case, but he died, and his Wife entered, and then the five years passed without any Claim. Adjournatur.   

Evans versus Crocker.  
A Special Verdict in Ejectment was found in Ireland, 
In Ejectment, where the Entry seems to be before the Title, yet the Declaration is good.  and judgement given there for the Plaintiff; and now a Writ of Error was brought in this Court, and the Common Error assigned. The Objection was to the Declaration, which was, That the Plaintiff declared upon a Demise made 12 Junii, etc. Habendum a praedicto duodecimo die Junij (which must be the 13th day of the same Month) usque etc. virtute cujus quidem dimissionis he entered, etc. and that the Defendant, postea scilicet eodem duodecimo die Junij, did eject him, etc. So that it appears upon the Face of the Declaration that the Defendant entered before the Plaintiff had a Title; for the Lease commenced on the 23th of June, and the Entry was on the 12th of that Month.  
And it was said that this agrees with a former Resolution in this Court where the Lease was made the 24th of June for five years Habendum a die datus, 
Siderfin 8. 2 Cro. 96.  which must be the 25th by virtue whereof the Plaintiff entered, and that the Defendant postea scilicet 24th Junij did eject him, which must be before the commencement of the Lease.  
Curia. The Plaintiff entered as a Disseisor by his own showing, and thereupon judgement was reversed.   

Rex versus Kingsmill.  
QUO Warranto against the Defendant to show cause why he executed the Office of a Bailiff of the Hundred of Barnstaple. 
Grant of an Hundred, where good, etc.   
The Defendant pleaded that the said Hundred was an ancient Hundred, and that the Office of Bailiff was an ancient Office, and that the Hundred Court was an ancient Court held from three Weeks to three Weeks before the Steward thereof; that the Return of Writs was an ancient Liberty and Franchise which did belong to the said Bailiff; that King Charles I. was seized of the said Franchise jure Coronae in Fee, who by Letters Patents dated, etc. did grant the same to one North, Habendum the said Hundred to him and his Heirs, and that by several mesne Assignments it came to, and was vested in the Defendant, and so he justified to have Retorna Brevium.  
To this Plea the Plaintiff demurred.  
And for the King it was argued, that this Claim was not good.  
First as to the manner of the Grant as 'tis here pleaded, viz. that the King was seized in Fee, etc. and that he granted the Franchise Habendum the said Hundred.  
That such a Grant can never include the Hundred, for nothing can pass in the Habendum, but what was mentioned in the Premises.  
2. The Defendant hath derived a Title from the Crown to this Office of a Bailiff, which must be either by Grant or Prescription.  
It cannot be by Grant, for 'tis a Question whether the Hundred Court can now be separated from the County Court; it hath been derivative from it in former times when the Sheriffs did let those Hundreds to farm to several persons who put in Bailiffs errand to the great oppression of the People, which was the occasion of the making of the Statute of Ed. 
14 E. 3. c. 9  3. by which such Hundreds were united and rejoined to the Counties, as to the Bailiwicks thereof, 
4 Inst. 267.  except such as were then granted in Fee by the King or his Ancestors.  
Now these Hundreds were usually granted to Abbots and other religious persons, 
31 H. 8. c. 13.  and their Possessions coming afterwards to the King by the dissolution of their Abbeys and Monasteries are now merged in the Crown, and cannot be regranted after the making of that Statute.  
And as the Defendnat cannot have a Title by Grant, so he hath not prescribed to have this Office; 'tis true, the Plea sets forth that 'tis an ancient Office, but that is not a Prescription but a bare Averment of its Antiquity.  
But admitting he had alleged it by way of Prescription, 
14 H. 4.89.  he could not do it by a Que Estate to have Retorna Brevium.  
A man cannot preserive to have Cognizance of Pleas in an Hundred Court, he may in a County Palatine, because 'tis of a mixed jurisdiction.  
Neither can he prescribe to have Return of the King's Writs, 
Abbot de Strata Marcelia.  because they are matter of Record.  
Here is a good Title pleaded. 
E contra.   
It was never yet denied, but that the King may be seized in Fee of an Hundred, and that he may grant Retorna Brevium; the Statutes are plain in it, 
14 E. 3. c. 9  for otherwise how came any Lords to have Hundreds in Fee, but by the King's Grants?  
And 'tis as plain that Hundreds may be divided from the County; 
2 E. 3. c. 12.  for else to what purpose was the Statute of Lincoln made, which adjoins Hundreds and Wapentakes to the Counties, and provides that they shall never be separated again, this shows that they were divided at that time.  
The Objections which have been made are, viz. That the Defendant cannot have a Title to this Office by Grant, and he hath not made any Prescription to it.  
The Reasons given why he could not have it by Grant were, because ancient Hundreds which were united to the Counties by the Statute of Ed. 3. could never afterwards be divided from them by any Grant of the King, and those which were excepted in that Statute, as being granted in Fee by the King or his Ancestors, when they come again to the Crown cannot be regranted, because they are merged in it.  
In answer to which it was said that such ancient Liberties, which were created by the Crown and did subsist by the King's Grant before the Statute of Ed. 3. when afterwards they came to the King were not merged, but remained a distinct Interest in him.  
The Hundred of Gartree in the County of Leicester was such a Liberty; it was an ancient Hundred and granted by Ed. 2. 
Cole versus Ireland. Raym. 360.  to John Sedington, not in Fee, but durante bene placito Regis; this Grant was long before the making of the Statute of Ed. 3. and yet afterwards this very Hundred was granted to several other persons by the succeeding Kings of England, which shows it was merged in the Crown, when it came to the King.  
The other Objection was, that Retorna Brevium doth not lie in Prescription.  
Now as to that, though it be true, that no Title by Prescription can be made to such Franchises and Liberties which cannot be seized as forfeited before the cause of Forfeiture appears on Record, because Prescription being an Usage in pais doth not extend to such things which cannot be had without matter of Record: 
1 Inst. 114. b.  Yet my Lord Coke is clear that a good Title may be made to hold Pleas, Leets, Hundreds, etc. by Prescripteon only without Matter of Record.  
But notwithstanding what was said to maintain this Plea judgement was given against the Defendant.   

Rex versus Griffith.  
THE Defendant was convicted of Manslaughter at the Old-Bayly, 
Indictment for Murder, the Party was found guilty of Manslaughter, and pleaded his Pardon, and afterwards the Indictment was quashed to save the Forfeiture of his Goods.  and the Record being removed into this Court by Certiorari he pleaded his Pardon, and had judgement Quod eat inde sine die.  
But being once convicted the Dean and Chapter of Westminster did seize his Goods as forfeited by that Conviction, who thereupon (although he was out of the Court by that judgement) yet he moved by his Council to quash the Indictment.  
The Exceptions taken were, viz.  
That the Indictment was Per Sacramentum duodecim proborum & legalium hominum jurat ' & onerat ' praesentat ' existit modo & forma sequen '.  
Midd. ss. Juratores pro Domino Rege praesentant, etc.  
That there was no Precedent to warrant such an Indictment, for this may be the Presentment of another jury; it being very incoherent to say that it was presented by the Oaths of twelve Men, that the jury do present.  
It ought to be praesentat ' existit quod, etc. and so is the form of this Court, as the Clerk of the Crown informed them.  
2. They present that Griffith and two others did make an Assault on the Body of the deceased, and that quidam Johannes in nubibus did wound him with a Gun, so that 'tis uncertain who did shoot, and what Gun was discharged, which ought to be certainly laid in the Indictment.  
Vaux 's Indictment for Poisoning Ridley was, 
4 Co. 44. b.  that the said Ridley not knowing the Beer to be poisoned, but being persuaded by Vaux recepit & bibit, but did not say venenum praedictum; and so it not appearing what thing he did drink (which ought to have been expressly alleged) the Indictment was held insufficient.  
And the reason is plain, for an Indictment for Felony being a Declaration for the King against the Life of a Subject, aught to set forth a sufficient certainty of the Fact, which shall not be supplied either by Argument, or any intendment whatsoever.  
And therefore in Long 's Case the Defendant was indicted for discharging a Gun upon Long, 
5 Co. 122. b.  Dans eidem Henrico Long mortale vulnus, and doth not say percufsit, for which reason that Indictment was also held insufficient; because in all Indictments for Murder they ought expressly to allege a stroke given.  
For these Reasons the Indictment was quashed, and a new Roll was made, on which this Indictment and Certiorari were both entered, and judgement quod exoneretur, and this was done to avoid the seizure.  
And afterwards in Michaelmas- Term primo Will. & Mar. it was said by the Chief justice, that it must be intended these were two persons, for no Court would justify such a judgement.   

Anonymus.  
IN Assault and Battery, 
After a Traverse you must not conclude to the Country.  the Defendant pleaded a Release of all Actions, etc.  
The Plaintiff replied, that the Release was gotten by duress, etc.  
The Defendant rejoined and showed cause why it was not gotten by duress, but that he sued forth a Capias, and did Arrest him, etc. and that the Release was voluntary, etc.  
The Plaintiff surrejoyns, and saith, that it was gotten by duress, absque hoc, that it was voluntary, Et hoc petit quod inquiratur per patriam.  
Upon this Issue the Cause was tried, 
Dyer 353. a. 1 Inst. 126. a. Cro. Car. 316. Sid. 341. 2 Cro. 588. 2 Rol. Rep. 186.  and the Plaintiff had a Verdict; and now it was moved in Arrest of judgement, that he ought not to conclude to the Country after a Traverse, because a Traverse itself is Negative, and therefore the Defendant ought to have joined issue in the Affirmative; 'tis true, if issue had been joined before the Traverse it might have been helped by the Statute of jeofails, but it was not so in this Case; and therefore the judgement was Arrested.   

Hitchins versus Basset, Mil '.  
IN Ejectment upon the Demise of Mr. Nosworthy.  
The jury found a special Verdict, 
A subsequent Will which doth not appear, shall not be a Revocation of the former.  the substance of which was,  
Viz. That Sir Henry Killigrew was seized in Fee of the Lands in question, in the County of Cornwall, and being so seized, did in the year 1644. devise the same to Mrs. Berkley for Life, remainder over to Henry Killigrew in Tail, and that he made Mrs. Berkley Executrix of his Will, which was found in haec verba.  
That afterwards in the year 1645. the said Sir Henry Killigrew made aliud Testamentum in Writing, but what was contained in the said last mentioned Will juratores penitus ignorant.  
They find that Sir Henry Killigrew in the year 1646. died seized of those Lands, and that Mrs. Berkley conveyed the same to Mr. Nosworthy 's Father, whose Heir he is, and that the Defendant Sir William Basset is Cousin and Heir to Sir Henry Killigrew, etc.  
The Question upon this special Verdict was, whether the making of this last Will was a revocation of the former or not?  
It was argued this Term by Mr. Finch, and in Michaelmas- Term following by Sergeant Maynard for the Plaintiff, that it was not a revocation.  
In their Arguments it was admitted that a Will in its nature was revocable at all times, but than it must be either by an express or implied revocation.  
That the making of this latter Will cannot be intended to be an implied revocation of the former; for if so, than the Land must also be supposed to be devised contrary to the express disposition in the first Will, and that would be to add to the Record, which finds, Viz. that what the last Will was penitus ignorant.  
It is possible that a subsequent Will may be made so as not to destroy but consist with a former; for the Testator may have several parcels of Land, which he may devise to many persons by divers Wills, and yet all stand together.  
A man may likewise by a subsequent Will revoke part and confirm the other part of a former Will; and therefore admitting there was such a Will in this case, 'tis still more natural that it should confirm than revoke the other.  
If the Testator had purchased new Lands, and had devised the same by a subsequent Will, no person will affirm that to be a revocation of the former Will.  
When a Man hath made a disposition of any part of his Estate, 'tis a good Will as to that part; so is likewise the disposal of every other part; they are all several Wills, tho' taken altogether, they are an entire disposition of the whole Estate.  
Nothing appears here to the contrary, but that the latter Will may be only a devise of his personal Estate, or a confirmation of the former, which the Law will not allow to be destroyed without an express revocation.  
The Case of Coward and Marshal is much to this purpose, 
Cro. Eliz. 721.  which was, a devise in Fee to his younger Son; and in another Will (after the Testators Marriage to a second Wife) he devised the same Lands to his Wife for Life, paying yearly to his younger Son 20 s. It was the Opinion of Anderson and Glanvil, that both these Wills might stand together, and that one was not a revocation of the other; because it appeared by the last Will that he only intended to make a Provision for his Wife, but not to alter the Devise to his Son.  
So where a Man had two Sons by several Ventures, 
Cro. Car. 24. Hodgkinson vers. hood. Co. Lit. 22. b. 1 Co. 104. a. 319. b.  and devises the Lands to his eldest Son for Life, and to the Heirs Males of his Body, and for default of such Issue to the Heirs Males of his second Son, and the Heirs Males of their Bodies, Remainder to his own right Heirs, and then made a Lease of 30 years to his youngest Son, to commence after the death of the Testator: the youngest Son entered and surrendered the Term to his elder Brother, who made a Lease to the Defendant, and then died without Issue; afterwards the youngest Brother entered and avoided this Lease made by his Brother. It was held that the Lease thus made to him was not a revocation of the devise of the Inheritance to his Brother, tho' it was to commence at the same time in which the devise of the Inheritance was to take effect, but it was a revocation quoad the Term only, that the elder Brother should not enter during that time, for the devise shall not be revoked without express words; and that tho' the Testator had departed with the whole Fee without reserving an Estate for Life to himself, yet the Law created such an Estate in him, till the future Use should commence; and in such case the right Heirs cannot take by Purchase but by Descent; so that here the Inheritance in Fee simple was not vested in the elder Brother by Descent, for then the Lease which he made would be executed out of the Feé and the younger Brother would be bound thereby.  
But in the Case at the Bar, there is no colour of a Revocation.  
1. Upon the nature of the Verdict, to which nothing can be added, neither can it be diminished, for whatever is found must be positive, and not doubtful, because an Attaint lies if the Verdict be false.  
Therefore the Court cannot take notice of that which the jury hath not found: Now here the entry of the judgement is,  
Viz. Quibus lectis & auditis & per Curiam hic satis intellectis, etc. But what can be read or heard where nothing appears?  
That Case in the Year-Book of the 2 R. 3. 
2 R. 3. f. 3.  comes not up to this question, it was an Action of Trespass for the taking of his Goods.  
The Defendant pleaded that the Goods did appertain to one Robert Strong, who before the supposed Trespass devised the same to him, and made him Executor, etc.  
The Plaintiff replied, that the said Strong made his last Will, and did constitute him Executor.  
And upon a Demurrer to this Replication, because he had not traversed that the Defendant was Executor, it was argued for the Plaintiff, that this last Will was a Revocation of the former, for tho' there were no express words of Revocation, yet by the very making another the Law revoked the former; and to prove this, two Instances were then given, viz. That if a Man devise his Lands to two, and by another Will gives it to one of them and dies, he to whom 'tis devised by the last Will shall have it.  
So likewise, if the Testator by one Will giveth Lands to his Son, and by another Will deviseth the same again to his Wife, then makes an Alienation, and taketh back an Estate to himself, and dieth; and in an Assize brought between the Widow and the Son, he was compelled by the Court to show that it was his Father's intention that he should have the Land, otherwise the last Devisee will be entitled to it.  
Now both these Instances are not sufficient to evince that the last Will in this Case was a revocation of that under which the Plaintiff claims, because those Wills were contradictory to each other; for by one the Land was devised to the Son, and by the other to the Wife, they both had their existence at one and the same time, and it appeared they were made to distinct purposes, but here no body can tell what was designed or intended by the Testator in this subsequent Will.  
And therefore it hath been held, 
Cro. Car. 51. Eyre's Case. Godolph. 443. Perkins 92. b.  that where a Man devised Legacies to his two Brothers, and afterwards in his sickness was asked to leave Legacies to his said Brothers, he replied he would leave them nothing, but devised a small Legacy to his Godson, and died. This Discourse was set down in a Cocidil, which, together with the Will was proved in common form: This Codicil was not a revocation of the Legacies given to the Brothers, because the Testator took no notice of the Will which he had made in the time of his Health, and non constat what he intended by these words which were set down in the Codicil.  
If therefore doubtful words shall not make a revocation of a former Will, a fortiori, a subsequent Will, especially when the contents of such Will do not appear, shall not revoke a former.  
It was argued for the Defendant. 
E contra.  And  
The only Objection is, That a latter Will being made, and it not appearing to the jury what was contained in that Will, it can be no revocation, because no express words of revocation can be found, or any thing which is contradictory to the first Will, and without the one or the other, a former Will cannot be revoked.  
But this is contrary to all the Authorities in the Books, 
Linwood 175. Swinb. 7 part, Sect. 14. 2 H. 5.8. pl. 3. Offiice of Ex. 443.  which show that a Testament which is good in the beginning may become void by making of a subsequent Will, by words of revocation, or by words contradicting each other; for in such cases 'tis not doubted but the first Will is revoked.  
But the meaning must be, that by the very making of a latter Will the first is become void.  
This may be collected from the nature of a Will, which a Man hath power to alter in part or in all, at any time during his Life; but when he makes a new Will, it must be presumed that he declared his whole mind in it; for if his Intentions are to alter any part, the Law hath appointed a proper Instrument for that purpose, which is a Codicil; but when he maketh aliud Testamentutum, 'tis a sign that he intended nothing of his former Will should take any effect, when he had so easy a method to alter it in part.  
Every subsequent act of the Testator shows that he intends a revocation, either by word or deed; and there is great reason why it should be so, because every revocation of a Will is in the nature of restitution to the Heir.  
It cannot be denied but that a Will may be revoked by words without writing, before the making of the Statute against Frauds, 
1 Rol. Abr. 614. Dyer 310. b.  etc. As if a Man should say that he would alter his Will when he came to such a place, and he should die before he came thither, this is a revocation.  
But it never was yet controverted but a revocation may be by Deed; as if a Man devise Lands to another, 
1 Rol. Abr. 614.  and afterwards makes a Feoffment to the use of his Will, this was always held a revocation.  
So it is if Lands which are well given by a Will are afterwards by another Will devised to the Poor of the Parish; 
1 Rol. Abr. 614. pl. 4.  tho' this last Will is void, because the Devisees have not a capacity to take, yet 'tis a revocation of the first Will; and shall a Will which is lost be of less authority than such which is void?  
'Tis not denied but that there may be a subsequent Will which may not contradict the first; so is Coward 's Case, where both Wills did appear to be consistent; but that is not parallel with this, because the jury hath found that the Testator made aliud Testamentum, which word aliud imports a distinct Will from the former.  
'Tis agreed also, that a Man may make many Wills, and that they may stand together; and it must also be agreed that such are but partial Wills, because they are but pieces of the whole, tho' written in several papers; but when 'tis found in general that aliud Testamentum was made, it must naturally be intended of his whole Estate.  
The Case in the Year Book of Richard III. is an Authority in point, where in Trespass the Defendant justified the taking of the Goods by virtue of a Will by which they were devised to him, and of which Will he was made Executor.  
The Plaintiff replied, that the Testator made another Will, and thereby did constitute him Executor; and this was held a good Replication without a Traverse that the Defendant was Executor, because by the making of the second Will the other was void in Law; and therefore the showing that he was Executor was not to avoid the first Will (which the Law doth adjudge to be of no force) but to make to himself a Title to the Goods taken out of his possession.  
If a Man should make twenty Codicils without dates, they may all stand together; but if he make two Wills without dates they are both void; the reason is because by the making of the later Will the first is destroyed; and it being incertain which is the last, rather than the Rules of Revocation should be broken they adjudge both to be void.  
It cannot be reasonably objected, that this later Will may devise the same Lands to the same person; for why should a Man be thought so vain? Besides if it was so, the Plaintiff should have claimed under that Will.  
But this cannot be the same Will, because 'tis contrary to the Verdict which hath not found it to be idem, but aliud Testamentum; besides 'tis in the Case of an Heir who shall not be disinherited by an intendment that the later Will is the same with the first.  
Neither can the Statute of Wills have any influence upon this Matter. 
32 H. 8. c. 1. 34 H. 8. c. 5.  'Tis true, at the Common Law no Land could be devised by a Will, but now by the Statutes of H. 8. Lands, etc. in Socage may be devised by Will; and if held in Knight's Service then only two parts in three, 
Godolph. 299.  but it must be by the last Will.  
Now how can any Man say that this shall be a Devise of the Lands by the last Will of the Testator, when the jury find he made aliud Testamentum; the Contents whereof are not necessary to be showed, because the Defendant claims as Heir, and not as Executor.  
It must not be intended that this Will shall confirm or stand with the other, because the Law is otherwise; and therefore if the Plaintiff would have supported his Will by which he claims, he ought to show the other Will, by which it must appear that nothing is contradictory to it, or that it doth confirm the first; but if Presumptions shall be admitted it must be in favour of the Heir, for nothing shall be presumed to disinherit him.  
Afterwards in Trinity-Term 5 Willielmi, judgement was given for the Plaintiff, and a Writ of Error was brought in the House of Peers to reverse that judgement, but it was affirmed.   

Anonymus.  
A Writ of Error was brought to reverse a judgement in the Common Pleas in an Ejectment for Lands in the County of Essex, in which a Special Verdict was found, viz. That R. F. 
What Words in a Will make Tenants in Common.  was seized in Fee of the Lands in question, who had Issue two Daughters 

Frances,  
Jane.    
Frances had Issue 

Philp,  
Frances,  
Anne.    
R. F. the Father devised unto Philip, Frances and Anne, the Children of his Daughter Frances, and to Jane his other Daughter, the Rents and Profits of his Manor of Spain for thirty years, to hold by equal parts, viz. the three Grandchilds to have one Moiety and his Daughter Jane the other Moiety.  
And if it happen that either of them should die before the thirty years expired, than the said Term should be for the benefit of the Survivor; and if they all die, than the same was devised over to other Relations.  
Afterwards he made a Codicil in these words, viz.  
I give Power and Authority to my Executors to let my whole Lands for the Term of thirty years for the benefit and behalf of my Children.  
Anne, one of the Granchildrens, died without Issue.  
Frances, another of the Grandchilds, died, but left Issue.  
The first Question was, whether the Power given to the Executors by the Codicil will take away that Interest which was vested in the Grandchilds by the Will?  
Mr. Appleton argued that it would not, because the Executors had only a bare Authority to let it or improve it for the benefit of the Children, there was no Devise of the Land to them.  
If Power be given to Executors to sell Lands, 'tis only an Authority and not an Interest in them; but a bare Authority only to let is of much less importance.  
2. After the Testator had devised the Profits of these Lands to his Grandchilds and Daughter equally to be divided during the term, and had provided that if any dye without Issue, that then it should survive, and if all dye, then to remain over to collateral Relations, etc.  
Whether Frances being dead, but leaving Issue, her Interest shall survive to Philip, or go to such her Issue?  
As to that he held that the Testator made them Tenants in Common, by equal parts, and therefore he devised it by Moieties, in which there can be no Survivorship.  
'Tis like a Devise to the Wife for life, 
2 Cro. 448. 1 Roll. Abr. 833. King versus Rumbal. Cro. Car. 185.  and after her decease to his three Daughters equally to be divided, and if any of them die before the other, than the Survivors to be her Heirs equally to be divided, and if they all die without Issue then to others, etc. the Daughters had an Estate Tail, and there was no Survivorship.  
So in this Case it shall never go to the third Grandchild as long as any Issue of the second are living.  
On the other side it was argued that they are joint-tenants and not Tenants in Common, 
E contra.  for the Testator having devised one Moiety to his three Grandchilds jointly by equal parts that will make them joint-tenants.  
But the Court were all of Opinion that the words in the Will show them to be Tenants in Common, for equally to be divided runs to the Moieties. So the judgement was affirmed.   

Woodward 's Case.  
THE Statute of 23 H. 8. c. 9 
Church Ornaments are a personal Charge upon the Inhabitants and not upon those who live else where, though they occupy Lands in that Parish. Godb. 134. pl. 4. 152. pl. 29. 154. pl.  prohibites a Citation out of the Diocese wherein the Party dwelleth, except in certain Cases therein mentioned, one whereof is, viz. Except for any Spiritual Cause neglected to be done within the Diocese whereunto the Party shall be lawfully cited.  
One Woodward and others, who lived in the Diocese of Litchfield and Coventry, but occupied Lands in the Diocese of Peterborough, were taxed by the Parishioners, where they used those Lands, for the Bells of the Church, and they refusing to pay this Tax a Suit was commenced against them in the Bishop of Peterborough's Court, who thereupon suggested this Matter, and prayed a Prohibition, because they were not to be charged with this Tax, it being only for Church Ornaments.  
And a Prohibition was granted, the reason given was, because 'tis a personal charge to which the Inhabitants only are liable, and not those who only occupy in that Parish and live in another; but the repairing of the Church is a real Charge upon the Land let the Owner live where he will.    

DE Term. Sanct. Trin. Anno 4 Jac. II. in Banco Regis, 1688.  

Wright, Chief Justice.  
Holloway, Justices.  
Powel, Justices.  
Allibon, Justices.   

The Bishop 's Case. Friday, June 15th.  
THE King having set forth a Declaration for Liberty of Conscience, did on the 4th day of May last by Order of Council enjoin that the same should be read twice in all Churches, etc. and that the Bishops should distribute it through their respective Dioceses that it might be read accordingly.  
The Archbishop of Canterbury (who then was) together with six other Bishops petitioned the King, setting forth that this Declaration was founded upon a dispensing Power, which had been declared illegal in Parliament, and therefore they could not in Honour or Conscience make themselves Parties to the Distribution and Publication of this Declaration, who thereupon were summoned before the King in Council, and refusing there to give Recognizance to appear before the Court of King's Bench, they were committed to the Tower by Warrant of the Council-Board.  
The Attorney General moved for a Habeas Corpus retornable immediate, and the same Morning in which that Motion was made Sir Edward Hales Lieutenant of the Tower returned the same, and they were all brought into the Court.  
The Substance of the Return was, viz. That they were committed to his Custody by Warrant under the Hands and Seals of the Lord Chanchellor Jefferies, and also naming more of the Lords of the Privy-Council, Dominos Concilij, for contriving, making and publishing a Seditious Libel against the King, etc.  
Then it was prayed that the Return might be filled, and that the Information which was then exhibited against them for this Crime might be read, and that they might all plead instanter.  
Sergeant Pemberton, Mr. Finch and Mr. Pollexfen oppsed the reading of it, and moved that the Bishops might be discharged, because they were not legally before the Court; for it appears upon the Return that there is no lawful cause of Commitment, and that for two reasons.  
1. Because the persons committing had not any Authority so to do; for upon the Return it appears that they were committed by several Lords of the Council, whereas it should have been by so many Lords in Council, or by Order of Council.  
2. They ought not to be committed for this Fact, which is only a Misdemeanour. The Bishops are Peers, and therefore the Process ought to be a Summons by way of Subpoena out of the Crown Office, and not to commit them the first time. If a Man comes in voluntarily he cannot be charged with an Information; neither can a person, who is found in Court by any Process be so charged if it be illegal, as if a Peer be committed by Capias.  
justice Allybon replied, that when a Commitment was made by the Lord Chief justice of this Court his Name is to the Warrant, but not his Office; 'tis not said Committitur per Capitalem Justiciarium Angliae etc. for he is known to be so; and why should not a Commitment by such persons Dominos Concilij be as good as a Commitment by Sir Rob. Wright Capitalem Justiciarium? That it was enough for the Officer to return his Warrant, and when that is done the Court will presume that the Commitment was by the Power which the Lords in Council had, and not by that Power which they had not.  
To which it was answered by Mr. Finch, that the Lord Chief justice always carries an Authority with him to commit wherever he goes in England; but the Lords of the Privy Council have not so large a Power; for though they be Lords of the Council always, yet they do not always act in Council.  
Then the Statute of 17 Car. 1. cap. 10. was read, in which there is mention made of a Commitment by the Lords of the Privy Council, etc.  
But it was answered that that Statute was to relieve against illegal Commitments, and those enumerated in that Act were such only, and none else.  
And it was strongly insisted, that Peers of the Realm cannot be committed at the first instance for a Misdemeanour before judgement; and that no Precedent can be showed where a Peer hath been brought in by Capias, which is the first Process for a bare Misdemeanour.  
The constant Proceed in the Starr-Chamber upon such Informations were, 
Crompt. Jurisdiction 33. Dyer 315. 4 Inst. 25. Regist. 287.  viz. First the Lord Chancellor sent a Letter to the person, then if he did not appear, an Attachment went forth;  
The King's Council answered, 
Sir Baptist Hick's Case. Hob.  that a Peer may be committed for the Breach of the Peace, for which Sureties are to be given, and can there be any greater Breach of the Peace than a Libel against the King and Government? 'Tis certainly such a Breach of the Peace for which Sureties ought to be demanded; for where there is any seditious Act there must be a Breach of the Peace, and if Sureties are not given then the person must be committed.  
The Objections were overruled by three judges.  
Then the Information was read, which in Substance was, viz. That the King by virtue of his Prerogative did on the 4th day of April in the third year of his Reign publish his gracious Declaration for Liberty of Conscience, which was set forth in haec verba.  
That afterwards, viz. 27 Aprilis in the fourth year of his Reign, the King did publish another Declaration reciting the former in which he expressed his care that the Indulgence by him granted might be preserved, etc. that he caused this last Declaration to be printed; and to manifest his favour more signally towards his Subjects, on the 4th day of May, 1688. it was Ordered in Council that his Declaration dated the 27th day of April last, be read on two several days in all Churches and Chapels in the Kingdom, and that the Bishop's cause the same to be distributed through their several Dioceses, etc.  
That after the making of the said Order, etc. the Bishops (naming them) did consult and conspire amongst themselves to lessen the Authority and Prerogative of the King, and to elude the said Order; and in further prosecution of their said Conspiracy they with Force and Arms did on the 18th day of May, etc. unlawfully, maliciously, etc. frame, compose and write a Libel of the King, subscribed by them, which they caused to be published under the pretence of a Petition.  
Then the Petition was set forth in haec verba,  
In contemptum dicti Domini Regis, etc.  
The King's Council moved that the Defendants might plead instanter, for so (they said) is the course of the Court when a Man is brought thither in Custody, or appears upon Recognizance.  
But the Council on the other side prayed an Imparlance and a Copy of the Information, and argued that the Defendants ought not to plead instanter, because their Plea ought to be put in Writing, and that they ought to have time to consider what to plead; that it was impossible to make any Defence when they did not know the Accusation, and that the Practice of the Court anciently was with them.  
'Tis true, when a Subpoena is taken out, and the Party doth not appear but is brought in by Capias, he shall plead instanter; and the reason is, because he hath given delay to the Cause: So 'tis likewise in Cases of Felony or Treason, but not to an Information for a Misdemeanour.  
Then the Clerk of the Crown informed the Court that it was the Course to plead instanter in these following Cases, viz. when the person appears upon a Recognizance, or in propria persona, or is a Prisoner in Custody upon any Information for a Misdemeanour where no Process issued out to call him in.  
As to the Objection that the Defendants cannot make any Defence without a Copy of the Information; the Usage is otherwise even in Cases where a Man's Life is concerned, and what greater difficulty can there be to defend an Accusation for a Misdemeanour than a Charge for High-Treason? certainiy the Defendants all know whether they are innocent or not.  
These Points being overruled by the Court, the Archbishop offered a Plea in writing, the Substance of which was, that they (naming all the Defendants) were Peers of Parliament, and ought not to be compelled to answer this Misdemeanour immediately, but they ought to appear upon due Process of Law, and upon their Appearance to have a Copy of the Information, and afterwards to imparle; and because they were not brought in by Process, they pray the judgement of the Court.  
This Plea was offered to the end that what was denied before upon a Motion might be settled by the Opinion of the Court, but it was over ruled.  
Then they pleaded severally Not-Guilty, and were tried at the Bar a Fortnight afterwards by a Middlesex jury, and acquitted.   

Anonymus. In the Common-Pleas.  
AN Action of Debt was brought upon a Bond against the Defendant; 
Where an Averment may be made of another person, so as it consists with the Condition of a Bond.  in which Bond the said A. B. the elder, and A. B. the younger, were jointly and severally bound in the penal Sum of 1000 l. conditioned that if the above bounden A. B. (omitting the word younger) do and shall forbear knowingly and wittingly to come to or write Letters unto C. the Wife of D. that then the Obligation to be void.  
The Defendant pleaded that he did not come to or write Letters to the said C. knowingly, etc.  
The Plaintiff replied, that he exhibited an Information against A. B. the younger (showing in what Term) and that it was agreed between them, that in consideration that he would forbear to prosecute the same, the said A. B. the elder together with A. B. the younger, should become bound to the Plaintiff in 1000 l. that the said A. B. the younger should not knowingly or wittingly come into the Company, etc. then sets forth the Bond and the Condition thereof at large, and avers that A. B. in the Condition mentioned is A. B. the younger; and farther that the said A. B. the younger did afterwards knowingly come into the Company, etc.  
The Defendant rejoined and said, that the Plaintiff ought not to aver that the aforesaid A. B. the younger is the person in the Condition of the said Bond, etc.  
And upon a Demurrer the Question was whether the Plaintiff was estopped by the words in the Condition to make such an Averment.  
It was argued for the Plaintiff, that he might make such an Averment which is to reduce a thing to a certainty which was very incertain before if it be not repugnant in itself; nay sometimes an Averment doth reduce contradictory things to a certainty.  
'Tis plain that A. B. the younger is bound in this Bond; the Objection is that A. B. the elder being of the Name and being likewise bound, that the Condition might refer to either.  
'Tis agreed there are many Cases where a Man shall be estopped to aver against a Record; but this Averment is not contradictory to any thing in the Record; for it appears by the Plead that the Information was prosecuted against A. B. the younger, and therefore he must be intended to be bound not to come to the said C. knowingly, etc.  
If an Estate should be devised to A. and the Name of the Testator omitted in the Will, 
2 Leon. 35.  yet the Devise is good by averring of the Name, and by proof that it was his intention to give it him by his Will.  
So if the Plaintiff should claim a Title under the Grant of such a person Knight, and the jury find he was an Esquire, 
Lit. Rep. 181, 223.  but that the Knight and the Esquire are both the same person, this is a good Declaration.  
'Tis usual to make an Allegation even against the express words of a Condition to show the truth of an Agreement; 
Cro. Car. 501.  as if Debt be brought upon a Bond of 100 l. conditioned to pay 50 l. within six Months; the Defendant pleaded the Statute of Usury; the Plaintiff replied that he lent the Money for a year, and alleged that by the mistake of the Scrivener the Bond was made paiable in six Months. The Defendant rejoined that it was lent for six Months only: And upon a Demurrer this was adjudged to be a good Allegation, though it was against the very words of the Condition, which is a stronger Case than this at the Bar, because the Averment consists with the Condition of the Bond.  
If a Man should levy a Fine and declare the Uses thereof to his Son William, and he hath two Sons of that Name, 
4 Co. 71. 8 Co. 155. a. Dyer 146.  than an Averment is made that he intended to declare the Uses to his youngest Son of that Name; this Averment out of the Fine hath been adjudged good for the same reason given already, which is, because it standeth with the words thereof, and 'tis a good Issue to be tried.  
It cannot be objected that the Bond is illegal being entered into for the not prosecuting of an Information, because a Nolle prosequi was entered as to that Matter, so 'tis the Act of the Court.  
Lastly, It was said that every Estoppel must be certain to every intent which cannot be in this Case, for by the words of this Condition 'tis incertain which of the Obligors shall be intended.  
E contra. It was argued, that an Estoppel is as well intended by Law, as expressed by Words, that if an Averment can be taken, yet this is not well, because the Plaintiff hath absolutely averred that A. B. in the Condition is A. B. the younger; he should have said, that A. B. in the Condition is intended A. B. the younger, which might have been traversed, and Issue taken thereon.  
No judgement was given, for this Case was ended by Compromise.   

Hoil versus Clerk, In the Common-Pleas.  
THIS was a special Verdict in Ejectment for Lands in Wetherfield, 
A subsequent Will, though not made pursuant to the Statute, is a Revocation of a former.  in the County of Essex, upon the demise of Abigail Pheasant.  
The jury find that one John Clark was seized in Fee of the Lands in question, who by his last Will in writing, bearing date the 14th day of September, in the year 1666. devised the same to Benjamin Clark for Life, so to his first and second Sons, etc. in  Male, and for default of such Issue, then to his two Sisters for Life, Remainder over, etc.  
This Will was attested by one Witness only.  
They find that the said John Clark made another, dated the sixth day of February, 1672. which was 13 years after the making of his first Will, and that by this last Will he revoked all former Wills and Testaments by him made.  
They find an Endorsement on this Will, written by the Testator himself in these words,  
Viz. My Will and Testament dated the 6th of February, 1679. and then published by me in the presence of three Witnesses.  
They find that this last Will was so published and attested by three Witnesses in his presence, but that it was not signed by the Testator in their presence.  
They find that Benjamin Clark entered, and devised the Lands to Mary Micklethwaite, who made a Lease thereof to the Plaintiff for three years, upon whom the Defendant entered.  
This Case was argued at the Bar, and in this Term at the Bench Seriatim.  
The single Question was, 
29 Car. 2. cap. 3.  whether this last Will, not being duly executed according to the Statute, is a Revocation of the first Will, or not?  
It was admitted by all, that it was a good Will to pass the personal Estate, but as to the point of Revocation, the Court was divided.  
justice Lutwitch argued that it was not a Revocation: He agreed that if the last Will hath any respect to the first, it must be as a Revocation, or not at all, which revocation must depend upon the construction and exposition of the sixth Paragraph in the Statute of Frauds, etc. the words whereof are,  
Viz. That no Devise of Lands, etc. or any clause thereof shall be Revoked otherwise than by some Codicil in Writing, or other Writing declaring the same, or by burning, cancelling, tearing or obliterating the same by the Testator himself, or in his presence, and by his direction or consent. But all devises of Lands, etc. shall be good, until burnt, cancelled, torn, etc. by the Testator, etc. or unless the same be altered by some other Will or Codicil in Writing, or other Writing of the Devisor, signed in the presence of three Witnesses, declaring the same.,  
So that the Question will be, whether a Will which revokes a former Will, aught to be signed by the Testator in the presence of three Witnesses?  
'Tis clear that a Will by which Lands are devised aught to be so signed, and why should not a Will which revokes another Will have the same formality?  
The Statute seems to be plain that it should, for it says that a Will shall not be revoked, but by some Will or Codicil in writing, or other writing of the Devisor, signed by him in the presence of three or four Witnesses declaring the same: which last Clause is an entire sentence in the disjunctive, and appoints that the Writing which revokes a Will, must be signed in the presence of three Witnesses, etc.  
Before the making of this Act it was sufficient that the Testator gave directions to make his Will, tho' he did never see it when made, which mischief is now remedied, not in writing the Will, but that the Party himself should sign it in the presence of three Witnesses; and this not being so signed, but only published by the Testator, in their presence; 'tis therefore no good Revocation.  
justice's Street was of a contrary Opinion, that this was a good Revocation: That the words in the fifth Paragraph of this Statute which altered the Law were,  
Viz. That all Devises of Lands, etc. shall be in Writing, and signed by the Party so devising, or by some other person in his presence, and by his express Directions, and shall be attested and subscribed in the presence of the Devisor, by three or four credible Witnesses.  
In which Paragraph there are two parts,  
1. The act of the Devisor, which is to sign the Will, but not a word that he shall subscribe his Name in the presence of three Witnesses.  
2. The act of the Witnesses, viz. that they shall attest and subscribe the Will in the presence of the Devisor, or else the Will to be void.  
But the sixth Paragraph is penned after another manner, as to the Revocation of a Will, which must be by some Codicil in writing, or other Writing declaring the same, signed in the presence of three Witnesses.  
Now here is a Writing declaring that it shall be revoked, not expressly, but by implication, and though that Clause in the disjunctive which says, that the revocation must be by some Writing of the Devisor, signed in the presence of three Witnesses, etc. yet in the same Paragraph 'tis said that it may be revoked by a Codicil or Will in Writing, and therefore an exposition ought to be made upon the whole Paragraph, that the intention of the Law may more fully appear.  
Such a construction hath been made upon a whole Sentence, 
Sid. 328. 1 Sand. 58.  where part thereof was in the disjunctive; as for instance, viz. A Man was possessed of a Lease by disseisin, who assigned it to another, and covenanted that at the time of the assignment it was a good, true, and indefeasable Lease, and that the Plaintiff should enjoy it without interruption of the Disseisor, Or any claiming under him; in this Case the Diffeisee reentered; and though the Covenant was in the disjunctive to defend the Assignee from the Disseisor, or any claiming under him; yet he having undertaken for quiet enjoyment, and that it was an indefeasable Lease, it was adjudged that an exposition ought to be made upon the whole Sentence. and so the Plaintiff had judgement.  
The Chief justice Herbert was of the same Opinion with justice Street.   

Rex versus Grimes and Thompson.  
THE Defendants were indicted for being Common Pawn-Brokers, 
Two are indicted for a Confederacy, one is acquitted, and that is the acquittal of the other.  and that Grimes had unlawfully obtained Goods of the Countess of, etc. and that he together with one Thompson, per confoederationem & astutiam, did detain the said Goods, until the Countess had paid him 12 Guineas.  
Thompson was acquitted, and Grimes was found Guilty, which must be of the first part of the Indictment only; for it could not be per confoederationem with Thompsom, and therefore it was moved in arrest of judgement, that to obtain Goods unlawfully, was only a private injury for which the party ought not to be indicted.  
To which it was answered, that a plain Fraud was laid in this Indictment, which was sufficient to maintain it; and that though one was acquitted, yet the jury had found the other guilty of the whole.  
But the Court were of Opinion, that the acquittal of one, is the acquittal of both upon this Indictment, and therefore it was quashed.   

King versus Dilliston. Hill. 2 & 3 Jacobi Rot. 494.  
A Writ of Error was brought to reverse a judgement in Ejectment, given in the Common-Pleas, 
Infant not bound by a Custom.  for one Message and twenty Acres of Land held of the Manor of Swafling.  
There was a special Verdict found, the substance of which was, viz. That the Land in question was Copyhold, held of the said Manor of Swafling in the County of Suffolk, and that Henry Warner and Elizabeth his Wife, in right of the said Elizabeth, were seized thereof for Life, Remainder to John Ballad in Fee.  
That the Custom of the said Manor was that if any Customary Tenant doth surrender his Estate out of Court, that such Surrender shall be presented at the next Court of the said Manor, and public Proclamation shall be made three Court days afterwards for the Party to whose use the Surrender was made, to come and be admitted Tenant, and if he refuseth, then after three Proclamations made in each of the said Courts, the Steward of the said Manor issueth forth a Precept to the Bailiff thereof to seize the Copyhold as forfeited.  
They find that Henry Warner and his Wife and John Ballad made this Surrender out of Court to the use of Robert Freeman and his Heirs, who died before the next Court, and that John Freeman an Infant, was his Son and Heir.  
That after the said Surrender three Proclamations were made at three several Courts held for the said Manor, but that the said John Freeman did not come to be admitted Tenant, thereupon the Steward of the said Manor made a Precept to the Bailiff, who seized the Lands in question as forfeited to the Lady, who entered and made a Lease to the Plaintiff, upon whom the Defendant reentered.  
The single Question upon this special Verdict was, whether this was a Forfeiture, and so a good seizure to bind the right of an Infant.  
It was argued for the Plaintiff in the Action that it was a good Seizure and a Forfeiture till the Infant should come of Age; for as a Copyhold is established by Custom, so likewise 'tis Custom which obligeth the Infant to the Conditions thereof; and therefore where one under Age hath an Estate upon a Condition to be performed by him, 
8 Co. 44. b. Whittingham 's Case. Latch. 199. Jones 157.  and that Condition is broken during his Minority, the Estate is lost for ever.  
In this Case the Custom obligeth the Heir to be admitted, that the Lord may be entitled to a Fine, which if he should lose, because his Tenant is an Infant, than that privilege of Infancy works a wrong, which the Law will not permit.  
'Tis true, an Infant shall not be prejudiced by the Laches of another, but shall be answerable for himself; and therefore if he is Tenant of Lands and the Rent should be unpaid for two years, and no Distress can be found, a Cessavit lies against him, and the Lord shall recover the Land, because of the Non-performance which arises by his own default.  
So if one under Age be a Keeper of a Gaol and suffer a Prisoner to escape out of Execution, 
2 Inst. 382.  an Action of Debt will lie against him upon the Statute of W. 2.  
It was agreed that such a Custom and Non-claim will not foreclose an Heir, 
8 Co. 100 Sir Rich. Letchford 's Case.  who is an Infant and beyond Sea at the time of his Ancestors Death, though he is bound by the Custom to claim it at the next Court; but that if he will come over and tender himself, though after a Seizure, he shall be admitted, and so shall the person in this Case if after his Minority he offer himself to be admitted.  
But it cannot be denied, 
2 Cro. 226.  but that the Lord may seize when the Heir is beyond Sea till he return and tender himself to be admitted, and by the same reason he may also seize in this case during the Minority.  
A Temporary Forfeiture is no new thing in the Law; 
Cro. Car. 7.  for if a Feme Covert be a Copyholder and marrieth, and her Husband makes a Lease for years without Licence of the Lord, 'tis a Forfeiture and shall bind her during the Coverture.  
So the Law is, 
Cro. El. 351.  that the Lord may seize the Land till a Fine is paid, for 'tis a reasonable Custom so to do.  
It hath been a good Custom for the Lord to assign a person to take the Profits of a Copyhold Estate descended to the Infant during his Minority without rendering an Account when he came of Age. 
1 Leon. 266. 2 Leon. 239.   
So that all that is to be done in this Case is to enforce the Infant to be admitted, that the Lord may be entitled to a Fine: The Inheritance is not bound, but the Land is only seized quousque.  
E contra. It was argued that here is a general Seizure, 
E contra.  which cannot extend to an Infant, for he is not bound in a Writ of Right, much less in an inferior Court after three Proclamations; but if this had been a Temporary Seizure the jury ought to have found it so, which is not done.  
There are many Authorities in the Books which affirm that an Infant is not obliged to be admitted during his Nonage, 
1 Leon. 100 3 Leon. 221.  or to tender the Fine in order to an Admittance; that the Law was settled in this Point, and therefore without any further Argument he prayed judgement for the Defendant.  
Afterwards in Hillary-Term 1 Willielmi & Mariae this Case was argued seriatim at the Bench, three judges being of a contrary Opinion to the Chief justice for the affirming of the judgement.  
justice Eyre premised two things.  
1. That he could not intent but that this Verdict had found an absolute Forfeiture, the jury having no way qualified it as to a certain time, and therefore he would give a judgement upon the whole Record.  
2. He agreed that a Feoffment of an Infant was no Forfeiture at the Common Law, and that as a particular Custom may bind an Infant for a time, so it may bar him for ever; but whether this Custom, as 'tis found in general words, shall bind an Infant after three Proclamations is now the Question, he not coming then to be admitted.  
And he held that it shall not, and that for these reasons.  
1. The Right of Infants is much favoured in the Law, and their Laches shall not be prejudicial to them as to Entry or Claim, upon a Presumption that they understand not their Right, 
1 Inst. 380. 2 Inst. 401.  and therefore in a Cessavit per biennium, which is a remedy given by the Statute of W. 2. and which extends to Infants, 
Westm. 2. c. 31.  who have not the Land by descent; for if a Cesser be in that Case the Infant shall have his Age, because the Law intends that he doth not know what Arrearages to tender.  
'Tis admitted that if an Infant doth not present to a Church within six Months, or doth not appear within a year that his Right is bound, but this is because the Law is more tender of the Church, and the life of a Man than of the Privileges of Infancy.  
So if an Office of Parkship be given or descends to an Infant, if the Condition in Law annexed to such an Office (which is skill) be not observed, the Office is forfeited.  
But that a Proclamation in a base Court should bind an Infant, when he is not within the reason of the Custom, is not agreeable either to Law or Reason.  
2. 
Cro. Jac. 80. Cro. El. 879. Noy 42. 1 Rol. Abr. 568.  All Customs are to be taken strictly when they go to the destruction of an Estate; and therefore a Custom was, that if a Copyholder in Fee surrender out of Court, and the Surrendree doth not come in after three Proclamations, the Lord shall seize it. A Copyholder in Fee surrendered to another for Life, the Remainder over in Fee, if the Tenant for Life will not come in, he in the Remainder shall not be barred, for the Custom shall be intended to extend only to those in possession.  
But the Infant in this Case is not within the Letter of the Custom, for 'tis found that the Surrender was made to one Freeman, who died before the next Court-day; and that John Freeman the Infant was his Son and Heir, so they have found a Title in him; for the word Heir is not here a word of Purchase, but of Limitation.  
3. 
Jones 157. Noy 92.  Infants are not bound by other Customs like this, as a Custom that every Copyholder who makes a Lease of his Land shall forfeit it; but this doth not conclude an Infant.  
4. There is not any necessity to construe an Infant to be within this Custom; for 'tis not found that the Lord was to have a Fine upon admittance; and 'tis no consequence to say that the Lord shall have a Fine, because usually Fines are taken upon admittances; 
1 Leon. 100 3 Leon. 221.  for an Infant may be admitted to a Copyhold, but not be bound to tender his Fine at any time during his Nonage.  
Justice Gregory was of the same Opinion, which he chief grounded upon Sir Richard Letchford's Case, between which and the Case at the Bar he said there was no material difference, only in that Case the Heir was beyond Sea, and in this at the Bar, 
2 Cro. 226. Latch. 199. Godb. 364. Jones 391. Dyer 104.  he was an Infant.  
'Tis very true, that the Books mention a Seizure quousque 'tis so said by justice Williams in Croke, but he gives no reason for it, 'tis only an Opinion obiter; but it is clear by many Authorities that Infants may be bound by Acts of necessity, and so they may by a Custom.  
justice Dolben of the same Opinion, which he said was agreeable to the reason of the Law in parallel Cases: An Infant is privileged in a Fine, for he is excepted by the Statute, because he knows not how to make his Claim.  
He said this was likewise agreeable to the Custom of 26 Manors of which he was formerly Steward; for in such Cases he always marked the Court Roll, Nulla Proclamatio quia Infans.  
It cannot be a Forfeiture quousque, because an Infant is wholly exempted by the Custom, and therefore 'tis no Forfeiture at all.  
'Tis an Objection of no moment, to say that the Lord by this means will lose his Fine, and that he hath no remedy to make the Infant when of Age to be admitted, for no Fine is due to him before admittance.  
But this Objection will be of less weight, if the loss of the Infant be compared to that of the Lord, who looseth only the Interest of a Fine before Admittance; and shall this Infant who is now but three years of Age lose the Profits of his Estate for 18 years?  
But there may be a way found out that neither may lose; for if it should be that when the Infant comes of Age his Estate should be then forfeited, if he doth not tender himself to be admitted after three Proclamations; Now upon his admittance the Lord may set a reasonable Fine, having respect to the length of time in which it was detained from him.  
Stowel's Case was no more but this, viz. 
Pl. Com. 356.  A Disseisor levied a Fine with Proclamations, and lived three years, his Heir being under Age, and the five years incurred after the said Heir came of Age, and then he entered within a year, and his Entry was adjudged unlawful. But that will not concern this Case, because it was a judgement upon the Statute of H. 7. 
4 H. 7. c. 24.  for the five years being once attached and begun in the life of his Ancestor shall incur and go on, and bind the Infant, if he do not pursue his Claim within that time after he comes of Age; but 'tis to be observed that my Lord Dyer in the Argument of that Case said nothing of a Seizure quousque.  
The Chief justice was of a contrary Opinion from the other three justices, and that the judgement ought to be reversed.  
Because until the Infant is admitted the Estate remains in the Surrenderor, and without an Admittance he cannot enter but by a special Custom to warrant it; and for this reason 'tis that the Surrenderor shall have an Action of Trespass against any person who enters, because he shall be intended still in possession, till the Admittance of another.  
If so, 
2 Cro. 368. Yelv. 16.  then Infancy cannot protect an Estate to which the Infant hath no Title till Admittance; for till then he hath neither Jus in re nor Jus ad rem.  
This is a Condition annexed to the Estate to be performed by the Infant, by which he is bound notwithstanding his Nonage, otherwise his Estate is forfeited.  
The Custom which obligeth him to be admitted is to entitle the Lord of the Manor to a Fine to which he hath a right. Now Infancy was never yet extended to endanger that remedy, which Men have to recover their Rights; it has been often so far extended as to delay such a remedy, but never to destroy it; for if the Infant should die the Lord looseth the Fine and then another person is to be admitted; but he cannot increase the Fine upon him who is a Stranger for the neglect of the Infant.  
'Tis true, 
Bridg. 83. Yelv. 144. Poph. 127.  where an Infant hath a Right it shall be preserved though a Fine be levied and the five years pass, but in this Case he hath no Right before Admittance.  
If a Feme Covert be an Heir to a Copyhold Estate, where the like Custom is, and she marrieth, and the Husband after three Proclamations will not come and be admitted, 'tis a Forfeiture during the Coverture.  
Now the reason in the Cases of Coverture and Infancy is the same; for if there shall be a Seizure during the time the woman is Covert, why not during the Infancy?  
As to Sir Richard Letchford's Case, the Heir was beyond Sea, but when he came into England he desired to be admitted; but this Infant never yet desired to be admitted; he stands upon his Privilege of Infancy.  
But upon the Opinion of the other three justices the judgement was affirmed that the Custom doth not bind the Infant.   

Carter versus Dowrich.  
A Covenant to pay so much Money to the Plaintiff or his Assigns as should be drawn upon the now Defendant by a Bill of Exchange, 
Custom of Merchants, where it must be particularly set forth.  etc. The Breach was assigned in Nonpayment.  
The Defendant pleaded that the Plaintiff secundum legem Mercatorum did assign the Money to be paid to A. who assigned it to B. to whom he paid 100 l. and tendered the rest drawn upon by Bill of Exchange, etc.  
And upon a Demurrer Mr. Pollexfen insisted, that this was not a good Plea, because the Defendant had not set forth the Custom of Merchants, without which all these Assignments are void, of which Custom the Court cannot take any judicial notice, but it must be pleaded; and 'tis not sufficient to say, that the Assignment was made secundum legem Mercatoriam, but it must be secundum consuetudinem Mercatoriam, otherwise 'tis not good.  
E contra. 
E contra. Litt. 182.  It was argued that the Custom of Merchants is not a particular Custom and local; but 'tis of an universal extent and is a general Law of the Land.  
The pleading it as 'tis here, is good; for if an Action is brought against an Innkeeper or common Carrier 'tis usual to declare secundum legem & consuetudinem Angliae; for 'tis not a Custom confined to a particular place, but 'tis such which is extensive to all the King's People.  
The word Consuetudo might have been added, 
1 Inst. 182.  but it imports no more than Lex, for Custom itself is Law.  
If the Custom of Merchants had been left out the Defendant had then pursued his Covenant; for if a Man agrees to pay Money to such a person or his Assigns, and he appoints the payment to another, a tender to that person is a good performance of the Covenant.  
But the Court were of Opinion that this was not a good Plea.   

Panton versus the Earl of Bath.  
A Scire Facias to have Execution of a judgement obtained in the Court of Oliver late Protector of England and the Dominions and Territories thereunto belonging; 
Where the Pleading is good in substance tho' there is a small variation it will not hurt.  and in reciting the judgement 'tis said that it was obtained before Oliver Protector of England and the Dominions thereunto belonging (leaving out the word Territories.)  
And upon a Demurrer Mr. Pollexfen held this to be a variance, 
Yelv. 212. Orde versus Moreton.  and like the Case where a Writ of Error was brought to remove a Record in Ejectment directed to the Bishop of Durham, setting forth that the Action was between such Parties, and brought before the said Bishop and seven other persons (naming them;) and the Record removed was an Ejectment before the Bishop and eight others, so that it could not be the same Record which was intended to be removed by the Writ.  
E contra. 
E contra.  It was said, suppose the word Scotland should be left out of the King's Title, would that be a variance?  
The judicature in this Case is still the same, and the Pleading is good in Substance; and of that Opinion was the whole Court.   

Hyley versus Hyley.  
HYley had Issue W. 
Where the Reversion in Fee shall pass in a Will by the words viz. Remaining part of my Estate.  his eldest Son, who had Issue 

Peter,  
Charles,  
John.    
He by Will devised 1000 l. to his eldest Son, and several parcels of Land to other Legatees.  
Then he gave to Peter Lands in Tail Male.  
To John a Mansion House (now in question) in Tail Male.  
He devised another House to his Grandson Charles in like manner.  
And all the rest and remaining part of his Estate he devised to his three Grandsons equally to be divided amongst them, that only excepted which he had given to Peter, Charles and John, and to the Heirs of their Bodies, whom he made Executors.  
Then by another Clause he devised, viz. That if either of his Executors die without Issue then the part or parts of him so dying shall go to the Survivor or Survivors equally to be divided.  
John, the youngest Grandson, died without Issue, and the question was, whether the Reversion of his House shall be divided between his surviving Brothers or descend to his Heir.  
And it was adjudged that the Exception in the Will did comprehend the Reversion in Fee, and that it did not pass but without such an Exception it had passed; 
* Allen 28.  as where a Man devised his Manor to another for years, and part of other Lands to B. and his Heirs, and all the rest of his Lands to his Brother in Tail, it was held that by these words the Reversion of the Manor did pass.   

Anonymus:  
NOTA. An Infant having entered into a Statute brought an Audita Querela to avoid it; he was brought into the Court, and two Witnesses were sworn to prove his Age, and then his Appearance and Inspection were recorded; he was bound in this Case with two other persons for 1600 l. and had no more than 200 l. for his share.   

Lydcott versus Willows.  
IN Ejectment. A special Verdict was found, viz. 
Devise of an Hereditament carries the Reversion in Fee.  that the Testator being seized in Fee of certain Houses in Bedfor-Bury and in Parker's Lane, did by Will devise his Houses in Parker's Lane to charitable Uses; then he gave several specific Legacies to several persons named in the said Will; and then he devised his Houses in Bedford-Bury to Edward Harris and Mary his Wife for their Lives; then follow these words, viz. The better to enable my Wife to pay my Legacies I give and bequeath to her and her Heirs all my Messages, Lands, Tenements and Hereditaments in the Kingdom of England not before disposed of, etc.  
The Question was whether this Devise would carry the Reversion of the Houses in Bedford-Bury to his Wife.  
Adjudged that it did not, but that it ought to go to the Heir of the Testator, who was Plaintiff in this Case: It being found that Harris and his Wife were dead, and that the Wife who was Executrix had sufficient Assets to pay the Legacies without the Reversion.  
But justice Powel was of another Opinion; for that the word Hereditament imports an Inheritance, and if it had devised thus, viz. the Inheritance not before disposed of the Reversion had passed.  
Afterwards a Writ of Error was brought in the Exchequer-Chamber upon this judgement, 
2 Vent. 285.  and according to the Opinion of justice Powel the judgement was reversed.  
Nota. A Rule of Court was made, that no Certiorari should go to the Sessions of Ely without Motion in Court, or signing of it by a judge in his Chamber.  
But Mr. Pollexfen insisted that the Sessions there did not differ from other Courts and Franchises; for the inferior Courts in London are of as large a jurisdiction as any, and yet a Certiorari goes to them, and so it ought to go to Ely; for 'tis the Right of the Subject to remove his Cause hither.  
Their course in the Royal Franchise of Ely is to hold the Sessions there twice a year, viz. in March and September, in which two Months the judges are seldom in Town; and if this Court should deny a Certiorari, the Court of Common Pleas would grant it.  
Attorney General contra. This Franchise of Ely is of greater Privilege and Authority than any inferior Court, for it hath many Regalia though 'tis not a County Palatine.  
A Certiorari will not lie to the Grand Sessions, nor to a County Palatine, to remove Civil Causes; 'tis true, it lieth to remove Indictments for Riots; and this Franchise being truly called Royal hath equal privilege with a County Palatine, and therefore a Certiorari will not lie.  
But no Rule was made.   

Osborn versus Steward.  
TRespass. 
Distress for an Heriot, where it may be taken.  The Case upon the Plead was this, viz. A Lease was made of Land for 99 years if Margery and Dorothy Upton should so long live, reserving a yearly Rent and an Heriot or 40 s. in lieu thereof after the death of either of them, Provided that no Heriot shall be paid after the death of Margery, living Dorothy.  
Margery survived, and is since dead.  
The Question was whether upon this Reservation the Beast of any person being upon the Land may be distreined for an Heriot.  
Mr. Pollexfen argued that it could not, because the words in the Reservation ought to be taken very strictly, and not to be carried farther than the plain expression.  
Where words are doubtful they have been always expounded against the Lessor; 
Cro. Eliz. 217. 2 Roll. Abr. 448. Latch. 99  as if a Lease be made for years reserving a Rent durante termino to the Lessor, his Executors or Assigns; the Lessor dies, his Heir shall not have the Rent, because 'tis reserved to the Executors.  
But here is no room for any doubt upon these words, for if a Lease for years be made, in which there is a Covenant, that the Lessee shall pay the Rent without any other words, this determines upon the death of the Lessee.  
So where a Lease was made for 99 years if A. B. C. 
2 Rol. Abr. 451. Hetley 58. Cro. Car. 314.  or any of them should so long live, reserving Rend to him and his Executors, and also at or upon the death of either his or their best Beast, in the name of an Heriot, provided that if B. or C. die, living A. no Heriot shall be paid after their deaths.  
A. assigns his Term, and the Beast of the Assignee was taken for an Heriot, but adjudged that it could not, for the words his or their shall not be carried farther than to the persons named in the Limitation.  
The Books that affirm that a Man may seize for an Heriot Service, cannot be brought as Authorities in this Case, because they are all upon Tenors between Lord and Tenant, and not upon particular Reservations as this is.  
The old Books say, that if a Tenant by Fealty and Heriot-Service, 
Broke tit. Heriot 2.  made his Executor and died, that the Lord might seize the best Beast of his Tenant in the Hands of the Executor, and if he could not find any Beast, than he might distrain the Executor, 
Plo. Com. 95.  and the reason of this seizure was because immediately upon the death of the Tenant, a Property was vested in the Lord; but it was held always unreasonable to put him to distrain when he might seize.  
And it is now held that for Heriot-Service the Lord may either distrain or seize, but than if he makes a seizure, 
Cro. Car. 260. Jones 300.  it must be the very Beast of the Tenant, but if he distrain, he may take any persons Cattle upon the Land.  
So that admitting this to be Law, yet it proves nothing to this matter, because such Services being by Tenure, shall not be extended to those which are created within time of memory, upon particular reservations; for by those ancient Tenors the Lords had many Privileges which cannot be upon Reservations.  
Besides, the seizures in those Cases were by the Lords, who continued so to be at the very time of the seizure; but in our Case the Lease is determined by the death of the last Life, so the Privilege is lost, and then it must stand upon the particular words in the Deed. Sed adjornatur into the Exchequer Chamber, the judges being divided in Opinion. Vid. 2 Sand. 165.   

Shipley versus Chappel. Pasch. 3 Jac. Rot. 404.  
THE Plaintiff Shipley as Administrator of Hannah his Wife, 
Condition of two parts in the disjunctive, and one part becomes impossible to be done, yet the other must be performed according to the subsequent matter.  brought an Action of Debt upon a Bond, against Chapel an Attorney, for 140 l.  
The Defendant craved Dyer of the Condition, which was  
Viz. Whereas Hannah Goddard (who was Wife to the Plaintiff) and Thomas Chapel of Greys-Inn, in the County of Middlesex, are Coparceners (according to the Common-Law) of one House, with the Appurtenances in Sheffeild, in the possession of William White; and whereas the said Hannah Goddard hath paid unto Thomas Chappel the Father, for the use of his Son, the Sum of 72 l. in consideration that the said Thomas Chappel the Son, when he attains the Age of 21 years (which will be about Midsummer next) do by good Conveyance in the Law, at the costs and charges of the said Hannah Goddard, convey his said moiety of the said House with the Appurtenances, unto her and her Heirs. Now the Condition of this Obligation is such, That if the said Thomas Chappel the Son shall at the Age of 21 years convey his said moiety of the said House, or otherwise if the said Thomas Chappel the Father, his Heirs, Executors or Administrators, shall pay or cause to be paid the sum of 72 l. with lawful Interest for the same, unto the said Hannah Goddard, her Executors, Administrators or Assigns, that then this Obligation to be void.  
Then he pleaded, that his Son Thomas Chappel was Coparcener with Hannah Goddard, as Coheirs of Elizabeth Goddard, that Thomas came of Age, and that before that time Hannah died without Issue.  
The Plaintiff replied, that true it is, that before Thomas Chappel the Son came of Age the said Hannah died without Issue of her Body, that Elizabeth Goddard before the making of the said Bond died seized in Fee of the said Message, but that she first married with one Malm Stacy, by whom she had Issue Lydia; that Malm her Husband died, and Elizabeth married John Goddard, by whom he had Issue Hannah, their only Daughter and Heir; that John Goddard died, and that Lydia Stacy married the Defendant Thomas Chappel, by whom he had Issue Thomas Chappel his Son; that Lydia died in the life-time of Elizabeth; that Thomas Chappel hath not paid the 72 l. to Hannah in her life time, or to John Shipley after her death.  
The Defendant demurred, and the Plaintiff joined in Demurrer.  
The Question was, since the word Heirs in the Condition being a word of Limitation, and not of any designation of the person, whether the death of Hannah Goddard before Chappel the Son came of Age, and who was to make the Conveyance shall excuse the Defendant from the payment of the Money?  
Those who argued for the Defendant, 
5 Co. 21. b.  chief relied upon Laughter Case, which was, viz. Laughter and Rainsford were bound that if R. after marriage with G. together with the said G. shall sell a Message, etc. if then R. do or shall in his life-time purchase for the said G. and her Heirs and Assigns Lands of as good value as the Money by him received by the said Sale, or leave her as much Money at his decease, then, etc.  
G. died, R. did not purchase Lands of an equal value with that he sold; and upon Demurrer it was held that where a Condition consisteth of two parts in the disjunctive, and both possible at the time of the Bond made, and afterwards one is become impossible by the act of God, there the Obligor is not bound to perform the other part, because the Condition is made for the benefit of the Obligor, and shall be taken most beneficially for him who had election either to perform the one or the other, to save the penalty of the Bond.  
But the Council for the Plaintiff said that the whole intent of the Condition in that Case was to provide a Security for G. who died before her Husband; so that no body could be hurt for the non-performance of that Condition, there being no manner of necessity that any thing should be done in order to it after her decease.  
'Tis quite otherwise in the Case at Bar, for Hannah Goddard paid Money for the House, and certainly it was never intended that Chapel the Father to whom the Money was paid, should have both House and Mony.  
If she had lived the House ought to have been conveyed to her; now she is dead the Money ought to be paid, for 'tis not lost by her death.  
In Laughter Case, the person who was to do the thing was the Obligor himself, but here the Father undertakes for his Son, that he should convey when he came of Age, or to repay the Money, so that 'tis not properly a Condition in the disjunctive, for 'tis no more than if it had been penned after this manner.  
Viz. The Father undertakes for his Son that he shall convey at the Age of 21 years; if he refuse, than the Father is to repay what money he received.  
Besides, 
Cro. Eliz. 399.  Laughter Case is Reported by justice Croke, and therein he citys two other Cases of Chew and Baker.  
That of Chew was viz. A. promised B. that if C. did not appear at Westminster such a day, he would pay him 20 l. The Defendant pleaded that C. died before the day; and ruled to be no Plea, for he ought to pay the Money, which Case is parallel to this, for 'tis the same in Reason and Sense.  
That of Baker was viz. A Man was bound that A. should appear the first day in the next Term at the Star-Chamber, or he would pay 20 l. A. died before the day, so as by the act of God he could not appear, yet it was adjudged that the Money must be paid.  
The like Case was adjudged between Huntley and Allen in the Common-Pleas, in my Lord Hale 's time; 'tis entered Pasch. 1658. Rot. 1277.  
The Rule in Laughter Case cannot be denied, viz. where the Condition is in the disjunctive consisting of two parts, and one becomes impossible by the act of God, the Obligor is not bound to perform the other, but than it must be governed by the subsequent matter.  
As in Greningham's Case, 
Cro. Eliz. 396. Moor 395.  viz. Debt upon Bond, conditioned that if the Defendant delivered three Bonds to the Plaintiff, wherein he was bound to the Defendant, or a Release of them, as should be advised by the Plaintiff's Council before such a day, then, etc.  
The Defendant pleaded, that neither the Plaintiff or his Council did advise a Release before the day, etc. and upon Demurrer it was adjudged that the Plea was good, for the Defendant had an election to deliver or release as the Plaintiff should devise, which if he will not do, the Defendant is discharged by the neglect of the Plaintiff; for the Defendant being at his choice to perform the one thing or the other, 'tis not reason that the Plaintiff should compel him to perform one thing only.  
It was argued on the other side, 
E contra.  that this is a disjunctive condition, and not only an undertaking of the Father for the Son.  
Where a Condition is to perform two things, and if either be done, no Action will lie, such Condition is in the disjunctive, as in this Case, if the Son had conveyed or the Father repaid the Mony.  
By the Condition of this Bond, the Father did as much undertake for his Son, as Laughter did for Rainsford, viz. to convey the House, or pay the Money to Hannah Goddard; now the last part of the Condition being discharged by the Act of God, he is acquitted of the other.  
Suppose the Condition had been single to convey to Hannah Goddard, if she die, the Bond is void.  
There is an Authority to this purpose, 
Cro. Eliz. 380.  Reported by justice Croke, which was, an Action of Debt was brought by the Plaintiff, as Executor, etc. The Condition of the Bond was for the yearly payment of a Sum of Money twice in a year, viz. at Michaelmas and Lady- day, during the Life of a Lady, or within 30 days after either of the said Feasts: the Lady died after one of the Feasts, but within the 30 days; it was adjudged that by her death that payment which was due at the Feast preceding was discharged.  
In the Case at Bar the Condition is, that if the Son should not convey when of Age, or otherwise, if the Defendant re-pay, etc. Now certainly these words or otherwise, make the Condition disjunctive.  
'Tis like the common Case of Bail entered into in this Court, whereby the Parties undertake that the Defendant shall render himself to Prison if condemned in the Action, or they shall pay the condemnation money; this is a disjunctive condition, and if the Defendant die before the return of the second Sci. Fa. the Bail are discharged.  
justice Allibon said, 
Roll. Abr. tit. condition 450. pl. 4.  that if a condition be to make an Assurance of Land to the Obligee and his Heirs, and the Obligee dies before the Assurance made, yet it shall be made to the Heir, for this copulative is a disjunctive. Sed Adjornatur.   

Franshaw versus Bradshaw. Mich. 1 Jac. Rot. 45.  
DEbt upon a judgement obtained in this Court, 34 Car. 2. 
Matter of Form not amendable upon Demurrer.  setting forth the said judgement, etc. Sicut per Recordum & processum inde remanen ' in eadem Curia nuper Domini Regis coram ipso Rege apud Westmonast. plenius liquet & apparet. And upon a Demurrer to the Declaration this Objection was made, viz. It doth not appear that the judgement was in force, or where the Reeord was at the time of this Action brought; he should have declared Coram ipso nuper Rege apud Westm. sed jam coram Domino Rege nunc residen ' etc. plenius liquet, etc.  
The Court held it was but matter of form, but being upon a Demurrer it was not amendable.   

Letchmere versus Thorowgood, & al' Vic. London.  
TRespass by the Assignees of Commissioners of Bankrupcy for taking of their Goods; 
When a Judgement is once executed, the Goods are in Custodia Legis, and shall not be taken away by an Exchequer Process, or Assignment of Commissioners of Bankrupts.  upon not Guilty pleaded, the jury find a special Verdict, the substance of which was, viz. one Toplady a Vintner, on the 28th of April became a Bankrupt, against whom a judgement was formerly obtained; the judgement Creditor sued out a Fi. Fa. and the Sheriffs of London, by virtue thereof, did on the 29th day of April seize the Goods of the said Toplady; that after the seizure, and before any Venditioni exponas, viz. 4 Maij an Extent (which is a Prerogative Writ) issued out of the Exchequer against two persons who were indebted to the King, and by inquisition this Toplady was found to be indebted to them, whereupon parcel of the Goods in the Declaration was seized by the Sheriffs upon the said Extent, and sold, and the Money paid to the Creditors, but before the said Sale, or any execution of the Exchequer Process, a Commission of Bankrupcy was had against Toplady, and that the Commissioners on the second of June assigned the Goods to the Plaintiff.  
The Question was, whether this Extent did not come too late? And it was held it did; or whether the Fi. Fa. was well executed, so that the Assignees of the Bankrupts Estate could not have a Title to those Goods which were taken before in Execution, and so in Custodia Legis? And it was held that they had no Title.   

Fitzgerald versus Villiers.  
WRY of Error upon a judgement in Dower, 
Infant must appear by Guardian.  and the Error assigned was, that the Tenant in Dower was an Infant, and no Warrant was alleged of the admission of any Guardian, 
29 Assize pl. 67. Bridg. 74. Lib. Entr. 45. Hut. 92. 4 Co. 53. Lit. 92. Hetl. 52. 3 Cro. 158. Moor 434. Hob. 5.  that it might appear to be the act of the Court; 'tis true an Infant may sue by Prochein Amy, but shall not appear by Attorney but by Guardian, because 'tis intended by Law, that he hath not sufficient discretion to choose an Attorney, therefore 'tis provided that he appear per Guardianum, which is done by the Court, who are always careful of Infancy, and a special Entry is made upon the Roll.  
Viz. Per Guardianum ad hoc per Curiam admissum, etc.  
2. The Appearance is by the Guardian in his own Name: Viz. Et praedicta Katherine Fitzgerald per Richardum Power Guardianum suum venit & dicit quod ipse, etc. it should have been in the name of the Party quod ipsa, etc. Adjurnatur.   

Harrison versus Austin.  
A Settlement was made as followeth, Viz. 
What words amount to a Covenant to stand seized.  That if I have no Issue, and in case I die without Issue of my Body lawfully begotten, than I give, grant and confirm my Land, etc. to my Kinswoman Sarah Stokes, to have and to hold the same to the use of myself for Life, and after my decease to the use of the said Sarah and the Heirs of her Body to be begotten, with Remainders over, etc.  
The Question was, whether this did amount to a Covenant to stand seized, so as to raise an use to Sarah without transmutation of the possession.  
The Objection against it was, 
Sid. 26. Moor 687. Dyer 96. 2 Roll. Abr. 786. Winch 59 Plowd. 300.  that Uses are created chief by the intention of the Parties, and that by these words grant and confirm, the Feoffor did intent the Land should pass at Common Law; so it could not be a Covenant to stand seized; 'tis like the Case where a Letter of Attorney is in the Deed, or a Covenant to make Livery, there nothing shall pass by way of use, but the possession, according to the course of the Common Law; and therefore there being neither Livery and Seisin or Attornment, no use will pass to Sarah.  
It cannot be a Bargain and Sale, for that is only where a Recompense is on each side to make the Contract good; besides, 
2 Inst. 672.  the Deed is not enrolled.  
To this it was answered, 
1 Vent. 137.  that it shall be construed to be a Covenant to stand seized, though the formal words are wanting to make it so; and for that purpose it was compared to Fox 's Case, 
8 Co. 93.  who being seized in Fee, devised his Land to C. for Life, remainder over for Life, reserving a Rent: and afterwards by Indenture in consideration of Money, did demise, grant and set the same Lands to D. for 99 years, reserving a Rent, the Lessee for Life did not attorn, in which Case there was not one word of any use, or any attornment to make it pass by Grant, and the Question was, whether this Lease for years shall amount to a Bargain and Sale, so that the Reversion together with the Rent shall pass to the Lessee, without Attornment; 
Hob. 277.  and it was held that by construction of Law it did amount to a Bargain and Sale, for the words import as much.  
And in this Case it was adjudged that it was a Covenant to stand seized.   

Hexham versus Coniers.  
IN Ejectment the Plaintiff declared de uno Messuagio sive Tenemento, 
An Ejectment will lie for a Tenement.  and had a Verdict, but judgement was arrested, because an Ejectment will not lie of a Tenement, for 'tis a word of an uncertain signification, it may be an Advowson House or Land; but it is good in Dower; so is Messuagium sive Tenementum vocat ' the Black Swan, for this addition makes it certain that the Tenement intended is a House.   

Rex versus Bunny.  
A Motion was made for a Melius inquirendum to be directed to a Coroner, who had returned his Inquisition upon the death of Bunny, that he was not compos mentis, when in truth he was Felo de se.  
But it was opposed by Sergeant Pemberton and Mr. Pollexfen who said, that the Law gives great credit to the Inquest of a Coroner, and that a Melius inquirendum is seldom or never granted, tho' it appear to the Court upon Affidavits, that the Party had his Senses. 
Mod. Rep. 82.  It hath been granted where any fault is in the Coroner, or any incertainty in the Inquisition returned.  
That there is such a Writ it cannot be denied; 
Cro. Eliz. 371.  but 'tis generally granted upon Offices or Tenors, and directed to the Sheriff, 
3 Keb. 800.  but never to a Coroner in the case of a Felo de se, who makes his Enquiry super visum Corporis.    

DE Term. Sancti Mich. Anno 4 Jac. II. in Banco Regis, 1688.  
In Trinity-Vacation last, Mr. Justice Holloway and Mr. Justice Thomas powel had their Quietus, and Mr. Serjeant Baldock and Mr. Serjeant Stringer were made Justices of this Court: And Mr. Justice Allibon (who was a Roman Catholic) died in the same Vacation, and Sir John powel, one of the Barons of the Exchequer, was made a Justice of this Court; Sir Thomas Jennor, another of the Barons of the Exchequer, was made a Justice of the Common-Pleas, and Mr. Serjeant Rotheram and Mr. Serjeant Ingoldby were made Barons of the Exchequer.  

Wright Chief Justice.  
Powel Justices.  
Baldock Justices.  
Stringer Justices.   

Shuttleworth versus Garnet. Intratur Trin. 1 Willielmi & Mariae Rotulo 965.  
THE Defendant was Tenant of Customary Lands held of the Manor of A. of which Manor B. was Lord; 
Indebitatus Ass. will lie for a Fine, upon an Admission, etc.  That a Fine was due to him for an admission: That upon the death of the said Lord, the Manor descended to W. as his Son and Heir, who died, and the Plaintiff, as Executor to the Heir, brought an Indebitatus Assumpsit for this Fine.  
He declared also that the Defendant was indebted to him in 25 l. for a reasonable Fine, etc.  
The Plaintiff had a Verdict and entire Damages, and it was now moved in arrest of judgement that an Indebitatus will not lie for a Customary Fine, because it doth not arise upon any Contract of the Parties, but upon the Tenure of the Land; for upon the death of the Lord there is a Relief paid; for there must be some personal Contract to maintain an Action of Debt or an Indebitatus Assumpsit; 
2 Cro. 599. Jones 339.  and therefore it was held that where the Plaintiff locasset a Warehouse to the Defendant, he promised to pay 8 s. per Week. An Assumpsit was brought for this Rent, and a Verdict for the Plaintiff: And a Motion was made in Arrest of judgement, that this was a Lease at Will, and the weekly payment was in the nature of a Rent; and it was agreed that an Assumpsit would not lie for a Rent reserved, because it sounds in the Realty, but because it was only a Promise in consideration of the occupying of the Warehouse, the Action was held to be well brought.  
2. Where the Cause of an Action is not grounded upon a Contract but upon some special Matter, there an Indebitatus Assumpsit will not lie, and therefore it will not lie upon a Bill of Exchange, or upon an Award, or for Rent, though there is a Privity both of Contract and Estate, without a special Assumpsit.  
E contra. 
E contra.  It was argued, that the Action lies; for though a Fine savours of the Realty, yet 'tis a certain Duty.  
In all Cases where Debt will lie upon a simple Contract there an Assumpsit will lie likewise; 'tis true, this doth concern the Inheritance, but yet 'tis a Contract that the Tenant shall be admitted paying the Fine.  
It hath been also maintained for Money had and received out of the Office of Register for the Plaintiffs use, and for Scavage Money due to the Mayor and Commonalty of London, 
3 Keb. 677.  which is also an Inheritance.  
'Tis a Contract employed by Law, and therefore the Action is well brought.  
Afterwards in Michaelmas Term 1 Willielmi & Mariae by the Opinion of justice Dolben, 
2 Leon. 79.  Eyre and Gregory judgement was given for the Plaintiff: But the Chief justice was of another Opinion; for he held that if the Defendant had died indebted to another by Bond, and had not Assets besides what would satisfy this Fine, if the Executor had paid it to the Plaintiff it would have been a Devastavit in him.  
Suppose the Defendant promiseth, that in consideration that the Plaintiff would demise to him certain Lands that then he would pay the Rent. If the Defendant pleads Non Assumpsit, 
Cro. Car. Acton versus Symonds.  the Plaintiff must prove an express Promise, or be Non suit.  
Also here is no Tenure or Custom set out.  
Yet by the Opinion of the other three justices the Plaintiff had his judgement.   

Rex versus Johnson.  
INformation upon the Statute of 29 & 30 Car. 2. cap. 1. 
Pardon after a Verdict for the King excuseth the Forfeiture.  prohibiting the Importation of several French Commodities, and amongst the rest (Lace) under the Penalty of 100 l. to be paid by the Importer, and 50 l. by the Vendor, and the Goods to be forfeited.  
The Information sets forth, that a Packet containing so many yards of Lace was imported by the Defendant from France, and that he did conceal it to hinder the Seizure; and that he did privately sell it contra formam Statuti.  
Upon Not-Guilty pleaded the King had a Verdict, and on the 2d of October there came forth a general Pardon, in which were these Words, viz. That the Subjects shall not be sued or vexed, etc. in their Bodies, Goods or Chattels, Lands or Tenements for any Matter, Cause or Contempt, Misdemeanour, Forfeiture, Offence, or any other thing heretofore done, committed, or omitted, against us Except all Concealments, Frauds, Corruptions, Misdemanours and Offences, whereby we or our late Brother have been deceived in the Collection, payment or answering of our Revenues or any part thereof, or any other Money due or to be due to us, or received for us or him, and all Forfeitures, Penalties and Nomine Poena's thereupon arising, and all Indictments and Informations or other Process and Proceed now depending or to be depending thereupon.  
The Question now was, whether this Forfeiture was excused by this Pardon.  
The Attorney General argued, that it was not, because an Interest is vested in the King by the judgement, and that no particular or general Pardon shall divest it without words of Restitution.  
So was Tooms' Case, who had judgement against another, 
1 Sand. 361.  and then became Felo de se; his Administrator brought a Scire Facias quare Executionem non haberet: The Debtor pleaded that after the judgement the Intestate hanged himself, which was found by the Coroners Enquest returned into this Court. The Plaintiff replied the Act of Pardon. But it was adjudged for the Defendant; for when the Inquisition was returned, than the Debt was vested in the King, which could not be divested without particular words of Restitution, and which were wanting in that Act of Pardon.  
The most proper word in the Body of this Pardon which seems to excuse the Defendant, is the word Offence; but the same word is likewise in the Exception, viz. Except all Offences, etc. in collecting or paying of Money due to us, and all Forfeitures, etc. Now the concealing of forfeited Goods from Seizure is an Offence excepted; for 'tis a remedy for the King's Duty, of which he was hindered by the Concealment.  
'Tis true, the first part of the Pardon excuseth all Misdemeanours commited against the King in his standing Revenue; but this Exception takes in all Concealments and Frauds in answering of the Revenue, and this Information is principally grounded upon Fraud; 
5 Co. 56.  so that the Exception ought to be taken as largely for the King as the Pardon itself to discharge the Subject.  
No Fraud tending to the diminution of the Revenue is pardoned, for it excepts not only all Concealments in collecting the Revenue, but other Money due or to be due to the King.  
If therefore when the King is entitled by Inquisition, Office or Record, there must be express and not general words to pardon it; and since this Fact was committed before the Pardon came out, and so found by the jury, whose Verdict is of more value than an Enquest of Office; so that the King by this means is entitled to the Goods by Record, and that before the Pardon; for these Reasons it cannot be revested in the party.  
Sergeant Pemberton and Mr. 
E contra.  Finch contra.  
The Question is what Interest the King hath by this Verdict; for as to the Offence itself 'tis within the Body of the Pardon, for all Misdemeanours and Offences are pardoned; and the Exception doth not reach this Case, for that excepts Misdemeanours in answering of the Revenues. Now that which arises by a Forfeiture can never be taken to be part of the King's Revenue, because the Revenue is properly a stated Duty originally settled on the King; and the Penalty to be inflicted for this Misdemeanour cannot be a Revenue, because the Court have not yet given judgement; so that 'tis incertain what Fine they will set, and this appears more plain, because the King may assign his Revenue, but cannot grant over a Penalty.  
The Information is not grounded upon any Act of Parliament which establishes the Revenue, but for concealing of a thing forfeited to prevent the Seizure thereof, which indeed may be a casual Revenue, as all Fines are; so that if this should be taken as an Offence committed against the King in deceiving him of this Revenue, than the first part of the Pardon dischargeth all such Offences and the Exception pardons none.  
'Tis for these Reasons that the Case cannot fall under any of the words in the Exception, no not under these Words, viz. Money due or to be due to the King, because no Money is yet due to him. 'Tis true, the jury have found it a Misdemeanour, which is finable; but until the Fine is set no Money is due, because the Court may set a greater or less Fine as they shall see cause: And if any other Construction should be made of this Exception, than every thing for which a Fine may be set, is excepted, and this will be to make the Pardon signify nothing; for what is meant by Offences and Misdemeanours if they should be pardoned, and yet the Fine arising thereon should not?  
But admitting that all Offences relating to the Concealment of collecting of the Revenue are excepted, than this Revenue must be either antecedent or it must arise by the Fine.  
'Tis no antecedent Revenue; this appears by the Book of Rates wherein the King's stated Revenue is set down, and no mention of this; so that the Revenue to which this relates must arise upon the Offence; and what an absurd thing is it to say, that all Offences are pardoned by one part of this general Pardon, and by the Exception none are pardoned?  
Besides, the Information is not grounded upon that part of the Statute which inflicts a Penalty upon the person who exposeth prohibited Goods to Sale, for than they would sue for the 50 l. therefore it must be upon the Forfeiture, which is expressly pardoned; and though there is a Conviction, yet nothing is vested in the King before judgement, because it may be arrested; and therefore Tooms' Case is in no wise applicable to this, for the Debt which was due to him was actually vested in the King by the Inquisition returned here, which found him to be Felo de se. Adjornatur.   

Anonymus.  
A Libel in the Admiralty against a Ship called the Sussex Catch, 
A Ship was pawned for necessaries, and a Libel was exhibited in the Admiralty though the pawning was at the Land.  setting forth that the said. Ship wanted Necessaries supper altum Mare; and that the Master took up several Sums of the Plaintiff at Rotterdam, for which he did hypothecate the said Ship; and upon a Suggestion that this Contract was made at St. Katherine's infra Corpus Comitatus, Council moved for a Prohibition, upon which a Question did arise, whether a Master of a Vessel can pawn it on the Coast for Necessaries, and the person to whom 'tis pawned shall sue for the Money in the Admiralty here.  
By the Common Law a Master of a Ship had neither a general or special property in it, 
Sid. 453.  and therefore could not pawn it; but by the Civil Law in cases of necessity he may rather, than the Voyage should be lost; and if any such cause appear 'tis within the jurisdiction of the Admiralty, but then the pawning must be super altum Mare.  
Now the Statute of 28 H. 
Cap. 15.  H. 8. which abridgeth the jurisdiction of the Admiralty in Trials of Pirates, and which appointeth Offences committed on the Sea to be tried by a Commission under the great Seal directed to the Admiral and others according to the course of the Common Law, and not according to the Civil Law, gives a remedy in this very Case, 
Molloy de Jure maritimo 62.  for it provides that it shall not be prejudicial to any person for taking of Victuals, Gables, Rapes, etc. in cases of necessity upon the Sea paying for the same.  
So that this is an excepted Case, because of the Necessity; and 'tis like the Cases of suing for Mariners Wages in this Court. The Service was at Sea so that the Admiralty hath no proper jurisdiction over this Matter.  
'Tis true, Prohibitions have been denied for Mariners Wages; the first is reported by justice Winch, 
Winch. f. 8.  but the reason seems to be because they proceed in the Admiralty not upon any Contract at Land, but upon the Merits of the Service at Sea, and allow or deduct the Wages according to the good or bad performance of the Services in the Voyage.  
Besides, there is an Act of Parliament which warrants she Proceed in the Court of Admiralty for Mariners Wages: 
Cotton Abr. f. 340. nu. 37.  For in a Parliament held in the 14th year of Richard II. the Commons petititioned for remedy against great Wages taken by Masters of Ships and Mariners; to which the King answered that the Admiral shall appoint them to take reasonable Wages, or shall punish them.  
Now the reason of the Civil Law, which allows the pawning of a Ship for necessaries upon the high Sea seems to be plain, because there may be an extraordinary and invincible necessity at Sea, but not at Land.  
So that this being a Contract beyond Sea and at Land the Court of Admiralty cannot have any jurisdiction over it; 
4 Inst. 134. Cro. Car. 603. Latch. 11. 2 Brownl. 37.  for where the Common Law cannot relieve, in such Cases the Admiralty shall not, because they are limited to Acts done upon the Sea and in cases of necessity; for if the Law should be otherwise the Master may take up as much Money as he will.  
Mr. Pollexfen contra. 
1 Rolls 530.  That things arising upon Land may be sued for in the Admiralty is no new thing; for so it is in all Cases of Stipulation; Mariners Wages are also recoverable in that Court, not by virtue of any Act of Parliament, 
Exton. Mant. Diraeologiae f. 192.  but because it grows due for Services done at Sea, which is properly a Maritime Cause, though the Contract for that Service with the Master was at Land: But the principal reason why Mariners Wages are sued for in the Admiralty is because the Ship is liable as well as the Master, who may be poor and not able to answer the Seamen.  
Curia. Take a Trial upon the necessity in this Case.   

Anonymus.  
THE Plaintiff recovered a Verdict against the Defendant in an Action upon the Case.  
The Defendant now moved by his Council, 
The Court will not order a Plaintiff to file the Venire Facias.  that the Plaintiff should file the Venire Facias and Distringas, because all Writs which are returnable in this Court ought to be filled, otherwise a Damage may ensue to the Officers, and a Wrong to the King upon the Forfeitures of Issues by the jurors, which are always estreated upon the coming in of the Distringas.  
The Council insisted upon it, that it was the Common Law of this Realm, and that it was the Right of the Subject that all Writs which issue out of the King's Courts should be filled, that the Panel of the Venire Facias is part of the Record, and that an Attaint could not be brought against the jury if these Writs were not filled, because non constat de personis.  
This matter was referred to some of the ancient Clerks of the Court, and to the Secondary Aston, who reported that the Court never ordered a Plaintiff to file a Venire Facias against his Will.   

Davies 's Case.  
TRespass against Davies and Powel for breaking of the Plaintiffs Close and chase and killing of Fowl in his Free Warren. 
Prescription for all the Tenants of a Manor to fowl in a Warren, good; though it was objected that it was too large.   
The Defendant as to all the Trespass, but chase and killing of the Fowl, pleaded Not-Guilty, and as to that he sets forth that the Dean and Chapter of Exeter were seized in Fee of the Manor of Brampton of which the said Warren was parcel, and that they and all those, whose Estates they had, etc. had liberty for themselves, their Tenants and Farmers to fowl in the said Warren; that the Dean and Chapter did make a Lease of parcel of the said Manor to the Defendants for one and twenty years, reserving a Rent, etc. and so they justify as Tenants, etc. they did fowl in the said Warren.  
The Plaintiff replied de injuria sua propria: Upon which they were at Issue, and there was a Verdict for the Defendants.  
Mr. Pollexfen moved in arrest of judgement, because 'tis an unreasonable Prescription for an interest in every Tenant of the Manor to fowl in that Warren: It hath been so ruled for a Common, 
Roll. Abr. 399.  without saying for his Cattle Levant and Couchant, for it must be for a certain number.  
In this Case the Prescription is not only in the person of the Lord, but for all his Farmers and Tenants, who cannot prescribe to have a free Warren in alieno solo.  
E contra. 
E contra.  It was argued that such a Prescription might not be good upon a Demurrer, but 'tis well enough after a Verdict.  
'Tis not an Objection to say, that this Prescription is too large, for all Tenants as well Freeholders as Copyholders to prescribe in the Soil of another; and so there may not be enough for the Lord himself, 
Yelv. 187. 2 Cro. 256.  because this is a Profit apprender in alieno solo, and for such the Tenants of a Manor may prescribe by a Que estate exclusive of the Lord; and of that Opinion was the Court, so the Defendant had his judgement.   

Anonymus.  
NOTA. An Information was brought in this Court for throwing down of Hedges and Ditches, in which there were several Defendants, who pleaded specially, and the Clerk of the Crown Office demanded 13 s. and 4 d. for every Name, (which came to 17 l. for his Fees;) in this Plea, and by reason of the great charge the Defendants did not plead but let judgement go by default.  
Mr. Pollexfen moved that the Plea might be received, and that it might be enquired what Fees were due, which the Court would not try upon a Motion, but advised an Indictment of Extortion, if their Clerk was guilty.   

Rex versus Inhabitantes de Malden.  
Sergeant Shaw moved to affirm an Order made upon an Appeal to the Quarter Sessions of the Peace for the County of Essex: The Case was, viz. 
Order of Sessions quashed for settling a poor Man, because he had not given formal notice in writing.   
John Pain served an Apprenticeship at Malden, where he married and had several Children.  
His Wife died, he married another Woman, who had a Term for years of an House in the Parish of Heybridge, where he lived for a year and left Malden.  
Afterwards he returned to Malden, was rated to the Poor, and lived there two years, than he died.  
In a short time after his death his Widow and Children were removed by an Order of two justices to Heybridge, from which Order they appeal; and by the Order of Sessions they were declared to be Inhabitants of Malden.  
It was now moved by Mr. Pollexfen to quash it, because it doth not appear, that he gave any formal Notice in Writing to the Overseers of Malden when he returned from Heybridge, and therefore aught to be settled there, and not at Malden; for being taxed to the Poor will not amount to Notice; and he cited a stronger Case, which was, viz. The Churchwardens of Covent Garden certified under their Hands, that such a person was an Inhabitant within their Parish, but because no Note was left with them pursuant to the Statute notwithstanding such Certificate he was held to be no Inhabitant within their Parish, and of that Opinion was all the Court.   

Anonymus.  
IN Replevin three persons made Cognizance as Bailiffs to A. 
Whether an Infant should make Cognizance per Attorn. or per Guardianum.  and so justify the taking of the Cattle Damage Feasant in his Ground.  
The Plaintiff replied that the Cattle were taken in his Ground, and traverseth the taking in the place mentioned in the Cognizance.  
There was judgement for the Defendant; upon which a Writ of Error was brought, and the Error assigned was, that one of the Bailiffs was an Infant and made Cognizance per Attornatum, when he ought to do it per Guardianum.  
Mr. 
2 Cro. 441. 2 Sand 212. 1 Rol. Abr. 228. 3 Cro. 441.  Pollexfen. This might be pleaded in Abatement, but 'tis not Error; for an Infant Administrator may bring an Action of Debt per Attornatum, because he sues in the Right of another, and so his Infancy shall be no impediment to him.  
The Bailiff in this Case is as much a Plaintiff as the Administrator in the other, for he makes Cognizance in the Right of another; and in such case, if two are of Age and one is not they who are of Age may make an Attorney for him who is not.  
So if there are two Executors one of them of Age, 
2 Sand. 212.  and the other not, one may make an Attorney for the other.  
There is no difference between Executors and Infants in this Case; for Executors recover in the right of the Testator, and the Bailiffs in the Right of him who hath the Inheritance.  
Besides the Avowants are in the nature of Plaintiffs, and wherever a Plaintiff recovers the Defendant shall not assign Infancy for Error. Adjornatur.   

Capel versus Saltonstal.  
INdebitatus assumpsit in the Common Pleas; 
Where there are several Plaintiffs in a personal thing, and one dyeth before Judgement, the Action is abated.  in which Action there were four Plaintiffs; one of them died before judgement, the others recover, and now the Defendant brought a Writ of Error in this Court to reverse that judgement, and the Question was, whether the Action was abated by the death of this person.  
Those who argued for the Plaintiffs in the Action held that the Debt will survive, and so will the Action, for 'tis not altered by the death of the party; for where Damages only are to be recovered in an Action well commenced by several Plaintiffs, and part of that Action is determined by the Act of God or by the Law, and the like Action remaineth for the residue, the Writ shall not abate.  
As in Ejectment, if the Term should expire pending the Suit, 
1 Inst. 285.  the Plaintiff shall go on to recover Damages; for though the Action is at end quoad the possession, yet it continues for the Damages after the Term ended.  
So if the Lessor bring Waste against Tenant pur altar vie, and pending the Writ Cestui que vie dieth, the Writ shall not abate, because no other person can be sued for Damages but the Survivor.  
So where Trover was brought by two, 
2 Bulst. 262. 1 Inst. 198.  and after the Verdict one of them died, the judgement shall not be arrested, because the Action survives to the other.  
Mr. Pollexfen contra. He admitted the Law to be that where two jointenants are Defendants, the death of one would not abate the Writ, because the Action is joint and several against them.  
But in all Cases where two or more are to recover a personal thing, there the Death or Release of one shall abate the Action as to the rest, though 'tis otherwise when they are Defendants and are to discharge themselves of a personalty. 
6 Co. 25. b. Ruddock's Case. 2 Cro. 19   
And therefore in an Audita Querela by two, the death of one shall not abate the Writ because 'tis in discharge.  
Now in this Case judgement must be entered for a dead Man, which cannot be, for 'tis not consistent with reason.  
The Case of Wedgewood and Bayly is express in it, which was this, Trover was brought by six and judgement for them, one of them died, the judgement could not be entered. 'Tis true, where so many are Defendants and one dies the Action is not abated, but than it must be suggested on the Roll.  
Curia. Actions grounded upon Torts will survive, but those upon Contracts will not. The judgement was reversed.   

Fisher versus Wren. In the Common-Pleas.  
THE Plaintiff brought an Action of Trespass on the Case, 
Prescription and Custom alleged together.  and declared that he was seized of an ancient Mesuage and of a Meadow, and an Acre of Land parcel of the Demesnes of the Manor of Crosthwait, and sets forth a Custom to grant the same by Copy of Court Roll; and that there are several Freehold Tenements parcel of the said Manor, and likewise several Customary Tenements parcel also thereof grantable ad voluntatem Domini, and that all the Freeholders, etc. time out of Mind, etc. together with the Copyholders according to the Custom of the said Manor have enjoyed solam & seperalem Pasturam of the Ground called Garths, parcel of the said Manor for their Cattle Levant and Couchant, etc. and had liberty to cut the Willows growing there for the mending of their Houses; and the Defendant put some Cattle into the said Ground, called Garths, which did eat the Willows, by reason whereof the Plaintiff could have no benefit of them, etc.  
Upon Not Guilty pleaded there was a Verdict for the Plaintiff.  
And now Sergeant Pemberton moved in arrest of judgement, and took these Exceptions.  
1. As to the manner of the Prescription which the Plaintiff had laid to be in the Freeholders, and then alleged a Custom for the Copyholders, etc. and so made a joint Title in both, which cannot be done in the same Declaration, because a Prescription is always alleged to be in a person, and a Custom must be limited to a place, and therefore an entire thing cannot be claimed both by a Prescription and Custom, 
Vaughan 215. Carter 200. 1 Sand. 351.  because the Grant to the Freeholders and this Usage amongst the Copiholders could not begin together.  
2. As to the Custom, 'tis not good as pleaded to exclude the Lord, for it can never have a good Commencement, because Copyholders have Common in the Lords Soil only by permission to improve their Estates, which Common being spared by the Lord and used by the Tenant becomes a Custom; but no Usage amongst the Tenants or permission of the Lord can wholly divest him of his Soil and vest an Interest in them who in the beginning were only his Tenants at Will. 
2 Sand. 325.   
3. The third Exception, and which he chief relied on, was, viz. That this is a Profit apprender in alieno Solo, to which all the Tenants of the Manor are entitled, and that makes them Tenants in Common; and therefore in this Action where Damages are to be recovered they ought all to join. 'Tis true, in real Actions Tenants in Common always sever, 
1 Inst. 197, 198. Godb. 347.  but in Trespasses quare Clasum fregit and in personal Actions they always join; and the reason is plain, because in those Actions though their Estates are several, yet the Damages survive to all, and it would be unreasonable to bring several Actions for one single Trespass.  
E contra. It was argued that it cannot be denied, 
E contra.  but that there may be a Custom or Prescription to have solam & seperalem pasturam; but whether both Prescription and Custom can be joined together is the doubt now before the Court; and as to that he held it was well enough pleaded, 
1 Sand. 351.  for where there is an unusual Right there must be the like remedy to recover that Right; it was thus pleaded in North's Case.  
But admitting it not to be well pleaded; 'tis then but a double Plea, to which the Plaintiff ought to have demurred; and this may serve for an Answer to the first Exceptions.  
Then as to the last Objection that 'tis a Profit apprender in alieno solo for which all the Tenants ought to join; 'tis true, a Common is no more than a Profit apprender, etc. yet one Commoner may bring an Action against his Fellow; besides, in this Case they are not Tenants in Common, for every Man is seized severally of his Freehold. Adjornatur.   

Airs versus Huntingdon.  
AScire Facias was brought upon a Recognizance of 1000 l. 
Amendment of the word Recuperatio for Recognitio after a Demurrer.  to show cause quare the Plaintiff should not have Execution de praedictis mille libris recognitis juxta formam Recuperationis, where it should have been Recognitionis praed. And upon a Demurrer it was held that the words juxta formam Recuperationis were Surplusage: The Record was amended, and a Rule that the Defendant should plead over.   

Mather and others versus Mills.  
THE Defendant entered into a Bond to acquir, 
Non damnificatus generally where 'tis a good Plea.  discharge and save harmless a Parish from a Bastard Child.  
Debt was brought upon this Bond, and upon Non damnificatus generally pleaded the Plaintiff demurred, and Tremain held the Demurrer to be good; for if the Condition had been only to save harmless, etc. then the Plea had been good; but 'tis likewise to acquit and discharge, etc. and in such Case Non damnificatus generally is no good Plea, 
1 Leon. 71.  because he should have showed how he did acquit and discharge the Parish, and not answer the Damnification only.  
E contra. 
E contra. 2 Co. 3. 2 Cro. 363, 364 2 Sand. 83, 84.  It was argued that if the Defendnat had pleaded that he kept harmless and discharged the Parish, such Plea had not been good unless he had showed how, etc. because 'tis in the affirmative; but here 'tis in the negative, viz. that the Parish was not damnified, and they should have showed a Breach; for though in strictness this Plea doth not answer the Condition of the Bond, yet it doth not appear upon the whole Record, that the Plaintiff was damnified, and if so, than he hath no cause of Action.  
judgement for the Defendant.    

DE Term. Sanctae Trin. Anno 1 Gulielmi & Mariae Regis & Reginae in Banco Regis, 1689.  
Memorandum, That on the 4th day of November last passed, the Prince of Orange landed here with an Army, and by reason of the Abdication of the Government by King James, and the Posture of Affairs, there was no Hillary-Term kept.  

Coram  
Johanne Holt Mil ' Capital ' Justice.  
Gulielmo Dolben Mil ' Justiciar.  
Gulielmo Gregory Mil ' Justiciar.  
Egidio Eyre Mil ' Justiciar.   

Kellow versus Rowden. Trin. 1 Willielmi & Mariae Rotulo 796.  
IN Debt by Walter Kellow, 
Where the Reversion in Fee is expectant upon an Estate Tail, and that being spent, it descends upon a collateral Heir, he must be sued as Heir to him who was last actually seized of the Fee, without naming the intermediate Remainders.  Executor of Edward Kellow against Richard Rowden. The Case was this, viz.  
John Rowden had Issue two Sons 

John  
and  
Richard.    
John the Father being seized in Fee of Lands, etc. made a Settlement to the use of himself for Life, the Remainder to John his eldest Son in Tail Male, the Remainder to his own right Heirs.  
The Father died, the Reversion descended to John, the Son, who also died, leaving Issue John his Son, who died without Issue; so that the Estate Tail was spent.  
Richard the second Son of John the elder, entered, and an Action of Debt was brought against him as Son and Heir of John the Father, upon a Bond of 120 l. entered into by his Father, and this Action was brought against him, without naming the intermediate Heirs, viz. his Brother and Nephew.  
The Defendant pleaded Quod ipse de debito praed. ut filius & haeres praed. Johannis Rowden Patris sui virtute scripti obligatorii praed. onerari non debet, quia protestando quod scriptum obligatorium praed. non est factum praed. Johannis Rowden pro placito idem Richardus dicit quod ipse non habet aliquas terras seu tenementa per discensum haereditarium de praed. Johanne Rowden patre suo in feodo simplici nec habuit die exhibitionis billae praed. Walteri praed. nec unquam postea & hoc parat est ' verificare unde pet. judicium si ipse ut filius & haeres praed. Johannis Rowden patris sui virtute scripti praed. onerari debeat, etc.  
The Plaintiff replied, that the Defendant die Exhibitionis billae praed. habuit diversas terras & tenementa per discensum haereditarium a praed. Johanne Rowden patre suo in feodo simplici, etc.  
Upon this pleading they were at Issue at the Assizes in Wiltshire, and the jury found a special Verdict, viz. that John Rowden the Father of Richard (now the Defendant) was seized in Fee of a Message and 20 Acres of Land in Bramshaw in the said County, and being so seized, had Issue John Rowden his eldest Son, and the Defendant Richard; that on the 22th of Januarii 18 Car. I. John the elder did settle the Premises upon himself for Life, Remainder ut supra, etc.  
That after the death of the Father, John his eldest Son entered and was possessed in Fee-Tail, and was likewise entitled to the Reversion in Fee, and died in the 14th year of King Charles the II. that the Lands did descend to another John his only Son, who died 35th Car. II. without Issue, whereupon the Lands descended to the Defendant as Heir of the last mentionted John, who entered before this Action brought, and was seized in Fee, etc. But whether upon the whole matter the Defendant hath any Lands by by descent from John Rowden in Fee-simple, the jury do not know, etc.  
The Council on both sides did agree that this Land was chargeable with the Debt, but the Question was whether the Issue was found for the Defendant, in regard the Plaintiff did not name the intermediate Heirs.  
It was argued that the Defendant ought to be sued as immediate Heir to his Father, and not to his Nephew, for whoever claims by descent must claim from him who was last actually seized of the Freehold and Inheritance, this is the express Doctrine of my Lord Coke in his first Institutes, and if so, 
Co. Lit. 11.  the Defendant must be charged as he claims.  
Seisin is a material thing in our Law, for if I am to make a Title in a real Action, I must lay an actual seisin in every Man; 
8 E. 3.13. Bro. Assize 6. F.N. B. 212. F.  'tis so in Formedons in Descender and Remainder, in both which you are to run through the whole Pedigree.  
But none can be Filius & Haeres but to him who was last actually seized of the Fee-simple, and therefore the Brother being Tenant in Tail, and his Son the Issue in Tail, in this Case they were never seized of the Fee, 
1 Inst. 14. b.  for that was expectant upon the Estate Tail, which being spent, than John the Father was last seized thereof, and so his Son is justly and rightly sued as Son and Heir.  
In some Cases the persons are to be named, not by way of a Title, but as a Pedigree; as if there be Tenant for Life, the Reversion in Fee to an Idiot, and an Uncle who is right Heir to the Idiot levied a Fine, and died living the Idiot, leaving Issue a Son named John, who had Issue William, who entered: the Question was, whether the Issue of the Uncle shall be barred by this Fine? It was the Opinion of two judges that they were not barred, because the Uncle died in the life-time of the Idiot, and nothing attached in him; 
March 94. Cro. Car. 524.  and because the Issue claim in a collateral Line, and do not name the Father by way of Title, but by way of Pedigree.  
But justice Jones, who hath truly Reported the Case, 
Jones 456.  was of Opinion, that the Issue of the Uncle were barred, because the Son must make his Conveyance from the Father by way of Title.  
The jury have found that the Reversion did descend to the Defendant, as Heir to the last John; 'tis true, it descends as a Reversion, but that shall not charge him as Heir to the Father, 
Jenk's Case, 1 Cro.  for the other was seized of the Estate Tail, which is now spent, and the last who was seized of the Fee was the Father, and so the Defendant must be charged as his Heir.  
'Tis likewise true, that where there is an actual Seisin, you must charge all, but in this Case there was nothing but a Reversion.  
Tremaine Sergeant for the Defendant.  
In this Case the Plaintiff should have made a special Declaration, for the Estate-Tail and the Reversion in Fee are distinct and separate Estates.  
John the Nephew might have sold the Reversion and kept the Estate Tail; if he had acknowledged a Statute or judgement, it might have been extended, and if so, than he had such a Seisin that he ought to have been named.  
A Man becomes bound in a Bond and died; Debt is brought against the Heir; it is not common to say that he had nothing by descent, but only a Reversion expectant upon an Estate Tayl.  
In the Case of Chapel and Lee, Covenant was brought in the Common-Pleas, against Judith, Daughter and Heir of Robert Rudge.  
She pleaded Riens per descent. Issue was joined before Sir Francis North then Chief justice; and it appearing upon Evidence that Robert had a Son named Robert, who died without Issue; a Case was made of it, and judgement was given for the Defendant: the Plaintiff took out a new Original, and then the Land was sold, so the Plaintiff lost his Debt. Adjornatur.  
Afterwards in Hillary- Term a Gulielmi & Mariae, judgement was given for the Plaintiff, by the Opinion of three justices against justice Eyre, who argued that the Defendant cannot be charged as immediate Heir to his Father; 'tis true, the Lands are Assets in his Hands and he may be charged by a special Declaration. 
Dyer. 368. pl. 460.   
In this Case the intermediate Heirs had a Reversion in Fee, which they might have charged either by Statute, judgement, or Recognizance; they were so seized that if a Writ of Right had been brought against them, they might have joined the Mice upon the Mere right, which proves they had a Fee, and though it was expectant on an Estate Tail, 
3 Co. 42. Ratcliffs Case.  yet the Defendant claiming the Reversion as Heir, aught to make himself so to him who made the Gift.  
The person who brings a Formeden in Descender, must name every one to whom any Right did descend, 
8 Co. 88 F.N.B. 220. c. Rast. Ent. 375.  otherwise the Writ will abate.  
A Man who is sued as Heir, or who entitles himself as such, must show how Heir.  
The Case of Duke and Spring is much stronger than this, 
2 Rol. Abr. 709. 2 Cro. 161.  for there Debt was brought against the Daughter, as Heir of B. She pleaded Riens per descent, and the jury found that B. died seized in Fee, leaving Issue the Defendant and his Wife then with Child, who was afterwards delivered of a Son, who died within an hour; and it was adjudged against the Plaintiff, because he declared against the Defendant as Daughter and Heir of the Father, when she was Sister and Heir of the Brother, who was last seized.  
But the other three judges were of a contrary Opinion.  
The Question is not, whether the Defendant is liable to this Debt, but whether he is properly charged as Heir to his Father? or whether he should have been charged as Heir to his Nephew, who was last seized?  
It must be admitted that if the Lands had descended to the Brother and Nephew of the Defendant in Fee, that then they ought to have been named; but they had only a Reversion in Fee expectant upon an Estate Tail, which was incertain, and therefore of little value; now though John the Father and Son had this Reversion in them, yet the Estate Tail was known only to those who were Parties to the Settlement.  
'Tis not the Reversion in Fee, 
Bro. Fit. Descent pl. 30.37 Ass. pl. 4.  but the Possession which makes the party inheritable; and therefore if Lands are given to Husband and Wife in Tail, the Remainder to the right Heirs of the Husband; then they have a Son, and the Wife dies, and the Husband hath a Son by a second Venture, and dies; the eldest Son enters and dies without Issue, and his Uncle claimed the Land against the second Son, but was barred, because he had not the Remainder in Fee in possession, and yet he might have sold or forfeited it.  
But here the Reversion in Fee is now come into possession, and the Defendant hath the Land as Heir to his Father; 'tis Assets only in him, and was not so either in his Brother or Nephew, who were neither of them chargeable, because a Reversion expectant upon an Estate Tail is not Assets.  
judgement was given for the Plaintiff.    

DE Term. Sancti Mich. Anno 1 Gulielmi & Mariae Regis & Reginae, in Banco Regis, 1689.  

Young versus Inhabitants de Tottenham.  
AN Action was brought against the Hundred for a Robbery, in which the Plaintiff declared, that he was Rob apud quendam locum prope Fair Mile Gate, in such a Parish. He had a Verdict: And now Sergeant Tremaine moved in arrest of judgement, and the Exceptions taken were these, viz.  
1. That it doth not appear that the Parish mentioned in the Declaration was in the Hundred.  
2. Neither doth it appear that the Robbery was committed in the Highway.  
3. The Plaintiff hath not alleged that it was done in the day time; for if it was not, the Hundred is not liable by Law.  
But these Exceptions were all disallowed, because it being after a Verdict the Court will suppose that there was Evidence given of these Matters at the Trial, so the Plaintiff had his judgement.   

Eggleston & al' versus Speke alias Petit. Intratur Trin. 1 W. & M. Rot. 249.  
THis was a Trial at the Bar, 
A Will shall not be revoked by a subsequent Writing, unless that be also a good Will.  by a Wiltshire jury, in an Ejectment brought by the Plaintiffs as Heirs at Law to Ann Speke, who died seized in Fee of the Lands in Question.  
Upon not Guilty pleaded, this Question did arise at the Trial, Whether the Answer of a Guardian in Chancery shall be read as Evidence in this Court to conclude the Infant: There being some Opinions that it ought to be read; and the Defendants Council insisting on the contrary, Mr justice Eyre's being the Puisne justice, was sent to the Court of Common-Pleas then sitting, to know their Opinions, who returning made this Report, That the Judges of that Court were all of Opinion, that such Answer ought not to be read as Evidence, for it was only to bring the Infant into Court, and to make him a Party.  
Then the Plaintiffs proceeded to prove their Title as Heirs at Law, viz. by several Inquisitions which were brought into Court, and by the Heralds Office.  
The Defendants Title likewise was thus proved, viz. That the Lady Speke being seized in Fee, etc. did by Will dated in March 1682. devise the Lands to John Petit for Life, Remainder to the Defendant and his Heirs for ever: That the Lady Speke died so seized, that John Speke the Tenant for Life, and Father to the Defendant was also dead, etc.  
This Will was proved by several Witnesses, one of which likewise deposed that my Lady Speke made two other Wills subsequent to this now produced; and a Minister proved that she burned a Will in the Month of December, which was in the year 1685.  
Then the Plaintiffs produced another Will made by her at Christmas 1685. attested by three Witnesses, but not in the presence of my Lady; so that though it might not be a good Will to dispose the Estate, yet the Council insisted that it was a good Revocation of the other, for 'tis a Writing sufficient for that purpose, within the sixth Paragraph of the Statute of Frauds.  
The Case of Sir George Sheers was now mentioned, whose Will was carried out of the Chamber where he than was, into a Lobby, and signed there by the Witnesses; but one of them swore that there was a Window out of that Room to his Chamber, through which the Testator might see the Witnesses as he lay in his Bed.  
Upon which Evidence the jury found this special Verdict, viz. That Ann Speke being seized in Fee, etc. did on the 12th day of March 1682. make her Will, and devised the Lands to John Pettit for Life, and afterwards to George his Son, and to his Heirs for ever, upon condition that he take upon him the Name of Speke.  
That the 25th of December 1685. she caused another Writing to be made, purporting her Will, which was signed, sealed and published by her in the presence of three Witnesses in the Chamber where she than was, and where she continued whilst the Witnesses subscribed their Names in the Hall, but that she could not see them so subscribing.  
They find that the Lessors of the Plaintiff are Heirs at Law, and that they did enter, etc.  
This matter was argued in Easter- Term following; and the Question was, whether this Writing purporting a Will, was a Revocation of the former or not, and that depended upon the Construction of the sixth Paragraph in the Act of Frauds, viz. All Devises of Lands shall be in Writing, and signed by the party or some other in his presence, and by his express Directions, and shall be attested by three or four Witnesses, etc. and that such devise shall not be revocable, but by some other Will or Codicil in Writing, or other Writing, etc. declaring the same.  
Now the want of Witnesses doth not make the last Will void in itself, but only quoad the Lands therein devised, it hath its operation as to all other purposes.  
It must therefore be a Revocation of the former; and this is agreeable to the Resolution of the judges in former times, for there being nothing in the Statute of Wills, which directs what shall be a Revocation, 
32 H. 8. cap. 1. Dyer 143.  the judges in Trevilians Case did declare that it might be by word of mouth, or by the very intention of the Testator to alter any thing in the Will, for before the late Statute very few words did amount to a Revocation. 
Moor 429. 1 Roll. Abr. 614, 615, 616.   
If Lands are devised and afterwards a feoffment is made of the same, but for want of Livery and Seisin, 'tis defective, yet this is a Revocation of the Will, though the Feoffment is void.  
The Council on the other side argued that this Will was not void by any Clause in the Statute of Frauds, 
E contra.  for if this is a Revocation within that Statute, than this second Writing purporting a Will, must be a good Will; for if 'tis not a good Will, then 'tis not a good Revocation within that Law.  
No Man will affirm that the latter Writing is a good Will, therefore the first being a Devise of Land, cannot be revoked but by a Will of Land, which the second is not.  
This Statute was intended to remedy the mischief of parol Revocations, and therefore made such a solemnity requisite to a Revocation.  
It cannot be denied but that this latter Writing was intended to be made a Will, but it wanting that perfection which is required by Law, it shall not now be intended a Writing distinct from a Will, so as to make a Revocation within the meaning of that Act.  
If a Man hath a power of Revocation, either by Will or Deed, and he makes his Will in order to Revoke a former, this is a Writing presently, but 'tis not a Revocation as long as the person is living.  
Therefore a Revocation must not only be by a Writing, but it must be such a Writing which declares the intention of a Man that it should be so, which is not done by this Writing.  
Upon the first Argument, judgement was given for the Defendant, that the second Will must be a good Will in all Circumstances to Revoke a former Will.   

Cross versus Garnet.  
THE Plaintiff declared, that on such a day and year there was a discourse between him and the Defendant concerning the Sale of two Oxen, then in the possession of the Defendant, and that they came to an agreement for the same; that the Defendant did then sell the said Oxen to the Plaintiff, and did falsely affirm them to be his own, ubi revera, they were the Oxen of another Man.  
The Plaintiff had a Verdict, 
Cro. Eliz. 44. 1 Rol. Rep. 275. 2 Cro. 474 1 Roll. Abr. 91. More 126. Yel. 20. Sid. 146.  and Sergeant Thompson moved in arrest of judgement, that the Declaration was not good, because the Plaintiff hath not alleged that the Defendant did affirm the Cattle to be his own sciens the same to be the Goods of another, or that he sold them to the Plaintiff fraudulenter & deceptive, or that there was any Warranty, for this Action will not lie upon a bare Communication.  
But notwithstanding these Exceptions the Plaintiff had his judgement; it might have been good upon Demurrer, but after Verdict 'tis well enough.   

Lea versus Libb.  
IN Ejectione firmae for Lands in Hampshire; 
Two Witnesses to a Will, and two to a Codicil, one whereof was a Witness to the Will, these are not three Witnesses to the Will itself.  the jury found a special Verdict, the substance of which was this, viz.  
That the Lessor of the Plaintiff was Heir at Law to one John Denham his Ancestor, who being seized in Fee of the Lands in question did by Will bearing date the 28th day of January in the year 1678. devise the same to the Defendant, which he subscribed and published in the presence of two Witnesses, and they likewise attested it in his presence.  
They find that on the 29th day of December, 1679. he made another Will or Codicil in Writing, reciting that he had made a former Will and confirming the same, except what was excepted in the Codicil, and declared his Will to be, that the Codicil should be taken and adjudged as part of his Will.  
They find that he published this Codicil in the presence likewise of two Winesses, one of which was Witness to the first Will, bue the other was a new Man.  
They find that these were distinct Writings, etc.  
The Question was, whether this was a good Will attested by three Witnesses, since one of the Witnesses to the Codicil was likewise a Witness to the Will, so that the new Man (if any) must make the third Witness.  
Sergeant Thompson argued that it was not a good Will: The Clause of the Statute is, That all Devises of Lands shall be in Writing and signed by the Testator in the presence of three Witnesses, and they to attest it in his presence.  
But here are not three subscribing Witnesses in the presence of the Testator, so that the first Will must be void, for one of the Witnesses to the Codicil did never see that Will.  
Besides, the Codicil is not the same thing with the Will; 'tis a confirmation of it, and this being in a Case wherein an Heir is to be disinherited ought not to have a favourable Construction.  
Attorney General contra. A Will may be contained in several Writings and yet but one entire Will. 'Tis true, if it be attested only by two Witnesses 'tis not good; but if the Testator call in a third person, and he attests that individual Witing in his presence, this is a good Will though the Witnesses were not all present together and at the same time, for there is the Credit of three persons to such a Will, which is according to the intent of the Statute.  
And therefore it cannot be objected that these are distinct Wills, or that the Papers are not annexed, for no such thing is required by Law; for a Man may make his Will in several Sheets of Paper, and if the Witnesses subscribe the last Sheet 'tis well enough, or if he doth put up all the Sheets in a blank piece of Paper and the Witnesses attest that Sheet 'tis a good Will.  
In these Cases the intent of the Lawmakers must and aught to be chief regarded, and for what reasons and purposes such Laws were made, and what judgements have been given in parallel Cases.  
If a Man grants a Rent-Charge to his youngest Son for Life, 
2 Cro. 144. Noy 117.  and afterwards devises that he shall have the Rent as expressed in the Grant: Now though the Writing was not part of the Will, but of another nature, yet the Will referring to the Deed is a good Devise of the Rent-charge within the Statute of Wills.  
But in this Case the Codicil is part of the Will, 'tis of the same nature, and being made animo restandi the end of the Statute is performed for both Will and Codicil joined together make a good Devise; the first was a Will to all purposes; it only wanted that circumstance of a third Witness to attest it, which the Testator completed after by calling in of a third person for that purpose.  
Curia. If a Man makes a Will in several pieces of Paper and there are three Witnesses to the last Paper, and none of them did ever see the first, this is not a good Will.  
Afterwards in Hillary-Term judgement was given that this was not a good Will.   

Tippet versus Hawkey.  
TIppet the Elder and his Son covenant with John Hawkey to sell and convey Land to him free from all Encumbrances, and that they will levy a Fine, etc. and deliver up Writings, 
Where two covenant the Action may be brought in the name of one.  Item, 'Tis agreed between the Parties that the said Hawkey shall pay to Tippet the younger so much Money, etc.  
The Action is brought in the name of both, and upon a Demurrer to the Declaration it was held ill, for the Duty is vested in Tipper the younger, and he only ought to have brought this Action.  
judgement for the Defendant.   

Rees versus Phelps.  
DEBT upon a Bond conditioned for performance of an Award. 
Award where good.   
Upon nullum fecerunt arbitrium pleaded, the Plaintiff replied, and shown an Award that the Defendant should pay 5 l. to the Plaintiff presently, and give Bond for the payment of 10 l. more on the 29th day of November following, and that this should be for and towards the Charges and Expenses in and about certain differences then depending between the Parties, and that they should now sign general Releases.  
And upon a Demurrer it was argued to be a void Award, because mutual Releases were then to be given which would discharge the Bond payable in November following. 
1 Roll. Abr. 259, 260.   
But the Court held it to be good, for the Releases shall discharge such Matters only which were depending at the time of the Submission.   

Godfrey & al' versus Eversden.  
THere was a Parish Church and a Chapel of Ease in the Parish of Hitchen; 
Prohibition denied upon Suggestion that there was a Chapel of Ease, and so ought not to repair the Parish Church  the Defendant was taxed towards the Repairs of the Church, and a Livel was brought against him for the refusing of the payment of that Tax.  
He now suggests that there was a Chapel of Ease in the same Parish, to which the Inhabitants do go, and that they have always repaired that Chapel, and so prayed a Prohibition.  
But Sergeant Tremain moved for a Consultation, because the Parishioners of common right aught to repair the Church; and though there is a Chapel of Ease in the same Parish, yet that ought not to excuse them from repairing of the Mother Church.  
He produced an Affidavit that there had been no Divine Service there for forty years past, 
Hob. 66.  nor Burials or Baptism whereupon a Prohibition was denied.   

Anonymus.  
A Gentleman was convicted upon his own Confession for High Treason in the Rebellion of the Duke of Monmouth and executed; 
Attainder for Treason reversed.  and it was moved that his Attainder might be reversed.  
The judges were attended with Books, and the Exceptions taken were, viz.  
1. There was no Arraignment or demanding of judgement. 
Co. Ent. 358.   
2. There was Process of Ven. Fac. which ought not to be in Treason, but a Capias.  
3. Because after the Confession the Judgement followed, and it doth not appear that the Party was asked what he could say why Sentence of Death should not pass upon him; for possibly he might have pleaded a Pardon.  
For these Reasons the Attainder was reversed.   

Mr. Parkinson's Case.  
IT was moved for a Mandamus to reffore him to a Fellowship of Lincoln- College in Oxford being a Member of a Lay Corporation, and having a Freehold in it. 
Mandamus denied for restoring of a person to a Fellowship. 1 Mod. 82. 1 Sid. 71. Sid. 29.   
The like Mandamus had been granted to restore Dr. Goddard to the place of one of the Fellows of the College of Physicians in London, which is a Lay Corporation.  
But it was denied by the Court, for the Visitor is the proper judge; and when a Man takes a Fellowship he submits to the Rules of the College and to the private Laws of the Founder.  
It was denied by my Lord Hales in Dr. Robert'ss Case, because in all Lay Corporations the Founder and his Heirs are Visitors, and in all Ecclesiastical Corporations the Bishop of the Diocese is the proper Visitor, who is Fidei Commissarius, and from whose Sentence there is no Appeal to this Court especially in the case of a Fellowship of a College, which is a thing of private design, and not at all concerning the public.   

Anonymus. Hill. 3 & 4 Jacobi Rot. 1018.  
A.B. nuper de Parochia Sancti Jacobi Westm ' in Comitatu Midd. Generosus attachiatus fuit per corpus suum ad respondend ' C. D. Viduae quae fuit uxor J. D. Generosi de morte praed. J. quondam viri sui unde eum appellat Et sunt pleg ' de pros ' J. B. nuper de Parochia Sancti Jacobi Westm. in Comitatu Midd. Gen ' & Johannes Do de eadem Gen ' & unde eadem Elizabetha per E. F. Attornatum suum juxta formam Statut. in hujusmodi casu edit. & provis. instanter appellat praed. A. B. de eo quod ubi praed. J. D. fuit in pace Dei & dicti Domini Regis nunc apud Parochiam Sancti Jacobi infra Libertatem Westm. in Comitatu Middlesex. decimo die J. Anno Regni Domini Jacobi nuper Regis Angliae tertio hora prima post meridiem ejusdem diei ibidem scilicet apud Parochiam Sancti Jacobi infra Libertatem Westm. in Com. Midd. venit praed. A. B. & felonice ac ut felo dicti Domini Regis nunc volutarie & ex malicia sua praecogitat. & insidiis praemeditatis contra pacem dicti Domini Regis nunc hora nona post meridiem ejusdem diei in & super praefat. J.D. adtunc vi & armis &c. apud Parochiam Sancti Jacobi infra Libertatem Westm. praedict. in Comitatu praedicto insultum fecit & praedict. A.B. adtunc & ibidem cum quodam gladio Anglice a Rapier ad valenciam quinque solidorum quod ipse idem A. B. in manu sua dextra adtunc & ibidem scilicet praedicto decimo die J. Anno tertio supradicto apud Parochiam Sancti Jacobi infra Libertatem Westm. praedict. in Com. Midd. praed. habuit & tenuit ipse praedict. J. D. in & super sinistram partem ventris ipsius J. D. prope umbilicum Anglice the Navel ipsius J. D. adtunc & ibidem felonice voluntary & ex malitia sua praecogitata percussit & pupugit & dedit eidem J. D. adtunc & ibidem in & super praedictam sinistram partem ventris ipsius J. D. prope dictum umbilicum ipsius J. D. cum gladio praedicto unam plagam mortalem longitud. dimid. unius pollicis & profunditat. sex pollicium de qua quidem plaga mortali idem J. D. a praedicto decimo die J. Anno tertio supradicto apud praedictam Parochiam Sancti Jacobi infra Libertatem Westm. in Comitatu Midd. praedict. languebat & languidus vixit & adtunc scilicet decimo sexto die Junii Anno tertio supradicto apud Parochiam Sancti Jacobi infra Libertatem Westm. in Comitatu Midd. praedict. ipse idem J. D. de plaga mortali praedicta obiit & sic praefat. A. B. praedictum J. D. apud Parochiam Sancti Jacobi infra Libertatem Westm praedict. in Comitatu Midd. praedict. modo & forma praedict. voluntary & ex malitia sua praecogitata interfecit & murdravit contra pacem dicti Domini Regis nunc Coron ' & Digitates suas & quam cito idem A. B. Feloniam & Murdrum praedict. fecisset ipse idem A. B. fugit dictaque C. D. ipsum recenter insecut. fuit de Villa in Villam usque ad quatuor Villas propinquior ' & ulterius quousque etc. Et si praedictus A. B. Feloniam & Murdrum praedict. ei in forma praed. imposit. velit dedicere praefat. C. D. hoc parata est versus eum probare prout Curia etc.  
The Defendant having prayed judgement de Brevi originali pleaded, Quod ipse A. B. per Breve illud appellat ' existit per nomen A. B. nuper de Parochia Sancti Jacobi Westm. in Comitatu Midd. Generosi ubi revera & in facto infra Comitatum Midd. praedict. est quaedam Parochia vocat. & cognit. per nomen Parochiae Sancti Jacobi infra Libertatem Westm. said in eodem Comitatu Midd. non habetur nec die impetrationis Brevis originalis appelli praedict. seu unquam habebatur aliqua Parochia sive locus cognit ' & nuncupat ' per nomen Parochiae Sancti Jacobi Westm. tanrum prout praed. C. D. per breve suum superius supponit Et hoc ipse idem A. B. parat ' est verificare unde petit Judicium de Brevi illo Et quod praed. Breve cassetur.  
The Plaintiff demurred, and the Appellee joined in Demurrer.  
An Appeal of Murder was brought against A. B. 
The Defendant pleaded in Abatement to an Appeal of Murder, and did not plead over to the Felony.  of the Parish of St. James Westminster in the County of Middlesex Gent. for that he on the 10th day of June in the third year of King James did run the deceased into the left part of his Belly with a Rapier, and that he died of that wound three days afterwards.  
The Defendant demands Oyer of the Return, and pleads that there is a Parish known by the name of the Parish of St. James within the Liberty of Westminster, but no such place as the Parish of St. James Westminster only.  
And upon a Demurrer it was argued that this Plea was not good, for it being in Abatement the Appellee ought to have pleaded over to the Murder, 
Cro. Eliz. 694.  so it was adjudged in the Case of Watts and Brain, the Plead of which Case are at large in my Lord Coke's Entries.  
2. He ought to have pleaded in person, and not by Attorney; the Statute of Gloucester is plain in this Point.  
Curia. If the Plea is in Abatement, and the Party doth not answer over to the Murder, yet that doth not oust him of his Plea, but the Appellant ought to have prayed judgement.  
'Tis a Question whether he ought to plead over to the Felony or not, for the Precedents are both ways; there is no judgement entered.   

Proud versus Piper.  
THere was a Libel brought in the Spiritual Court for a Mortuary. 
Mortuary due only by Custom. 21 H. 8. c. 6.   
The Defendant suggests that by the Statute of H. 8. no Mortuary ought to be paid, but in such places where it had been usually paid before the making of that Statute, and that there was no Custom in this place to pay a Mortuary, and it was thereupon moved for a Prohibition; 
Cro. Eliz. 151.  for Mortuaries are not due by Law, but by particular Custom of places.  
'Tis true, 
2 Inst. 491. 1 Cro. 237. Seld. of Tithes 287.  a Prohibition was denied in the Case of 
* Sid. 263.  Mark and Gilbert, but it was because 'twas admitted that there a Mortuary was due by Custom, but they differed in the person to whom it ought to be paid.  
Curia. Prohibitions have been granted and denied upon such Suggestions, therefore the Defendant was ordered to take a Declaration in a Prohibition as to the Mortuary, and to try the Custom at Law.   

Lutwich versus Piggot.  
IN Ejectment for Lands in Northumberland, 
Lease, whether made pursuant to the power in the Reservation.  tried at the Bar, the Case was thus, viz.  
Peter Venables was seized in Fee of the Manor of Long Witton in the said County, and being so seized made a Settlement thereof, by Lease and Release to the use of himself for Life, without impeachment of Waste, then to the trusties for seven years, to raise Portions for Daughters, then to William Venables and the Heirs Male of his Body, and if he die without Issue, then to Ann his Daughter for Life, with Remainders over.  
In which Settlement there was this Proviso, viz.  
Provided that it shall be lawful for William Venables by Will or Deed, to dispose of any part of the said Manor to his Wife for Life.  
And another Proviso to this purpose. viz.  
Provided that it shall and may be lawful to and for the said William Venables, by any Deed in Writing under his Hand and Seal, to Demise for 3 Lives or 21 years, or under, or for any time or term of years, upon one, two, or three Lives, or as Tenant in Tail in Possession may do, all or any part of the said Manor, Lands, etc. which were in Lease for the space of forty years last passed.  
The Defendants Title was a Lease for 99 years, made by the said William Venables to one Mary Venables, if three Lives should so long live.  
And the Question was, whether that Lease was pursuant to the power in the last Proviso?  
It was objected that it was not, for it ought to be a Lease for 21, and not 99 years, determinable for three Lives.  
But the Plaintiff was Nonsuit.   

Rex versus Fairfax, & al.  
AN Order made at the Quarter-Sessions of Gloucester, 
Who shall be bound to take an Apprentice in Husbandry.  was removed hither, confirming another made by the justices there, for placing of a poor Boy to be an Apprentice in Husbandry, and it was moved that it might be quashed.  
Mr. Pollexfen argued that the justices had no power given them by the Law, to compel a Man to take such an Apprentice, and this will depend upon the construction of such Statutes which relate to this matter.  
The first is that of Queen Elizabeth, which enacts, 
5 Eliz. cap. 4. Paragraph 25.  that for the better advancing of Husbandry and Tillage, and to the intent such who are fit to be made Apprentices to Husbandry may be bound thereunto, that every person being an Housholder, and having or using half a Plough Land at the least in Till age, may take any to be an Apprentice above ten, and under eighteen years, to serve in Husbandry, until the Party be of the Age of twenty one, or twenty four years, the said Reteiner and taking of an Apprentice to be by Indenture.  
Now before the making of this Statute, the practice of putting out poor Children was only in Cities and great Towns, to particular Trades and Employments.  
The next Statute is 43 Eliz. by which power is given to the Churchwardens or Overseers of the Poor, 
48 Eliz. cap. 2.  to raise weekly or otherwise by Taxation of every Inhabitant, such competent Sum or Sums of Money as they shall think fit, for relief of the Poor, and putting out of Children to Apprentice.  
And then in the fifth Paragraph power is given to them by the Assent of two justices of Peace, to bind poor Children where they shall see convenient, etc. which words were the foundation for the making of this Order.  
But the construction thereof can be no otherwise than, viz. Whereas before the making of this Act poor Children were bound Apprentices to Tillage, now the Churchwardens may raise Money to bind them out to Trades; for if they could compel Men to take them, what need was there of raising Money to place them out?  
This must be the natural construction of that Law, 
1 Jac. cap. 25. Paragraph 23.  which appears yet more plain, by the words of a subsequent Statute, which continues that of the 43th of Eliz. with this addition, that all persons to whom the Overseers of the Poor shall (according to that Act) bind any Children to Apprentice, may take, receive and keep them as Apprentices.  
'Tis true, the general practice of putting out poor Children seems to warrant this Order; but this hath been occasioned upon a Mistake in Mr. Dalton 's Book, 
Dalt. 114.  who Reported the Resolution of the judges in 1633. to be, That every Man who by his calling, profession, or manner of living, and who entertaineth and must use Servants of the like quality, such must also take Apprentices.  
By this Resolution the justices of Peace have been governed ever since. But justice Twisden would often say, that those were not the Resolutions of the judges, as Reported by Mr. Dalton, and therefore the Book was mistaken.  
2. The Order itself doth not mention that the party to whom this poor Boy was bound Apprentice, did occupy any Land in Tillage, for so it ought to be, otherwise the Overseers of the Poor may bind him to a Merchant or to an Attorney, which he called a Free quarter; for by such means Diseases may be brought into a Family, and a Man hath no security either for his Goods or Mony.  
This was the Opinion of justice Twisden in Coutrell's Case; 
Sid. 29.  and it seems to be very natural, and therefore the chief reason why power was given by the Statute to the Overseers to raise money, was that they might place poor Children to such who were willing to take them for Money, for otherwise they might compel a Man to receive his Enemy into his Service.  
He relied on the Case of the King and Price, Hillary 29 and 30th of Car. II. which was an Order of the like nature moved to be quashed: And justice Twisden said in that Case, that all the judges of England were of Opinion that the justices had not such a Power, and therefore that Order was quashed.  
'Tis plain that by the Statute of the 43 Eliz. 
E contra.  the justices may place out poor Children where they see it convenient, and so the constant practice hath been; so is the Resolution of the judges in Dalton, which was brought in by the Lord Chief justice Hyde, but denied so to be by justice Twisden, for no other reason but because justice Jones did not concur with them.  
In Price 's Case this matter was stirred again, but there hath been nothing done pursuant to that Opinion.  
Since then the justices have a power to place out poor Children. 'Tis no Objection to say that there may be an inconvenience in the exercise of that power, by placing out Children to improper persons; for if such things are done, the Party hath a proper remedy by way of Appeal to the Sessions.  
Three justices were of Opinion that the justices of Peace had such a Power, and therefore they were for confirming the Order; and justice Dolbin said it was so resolved in the Case of the King and Gillyflower, in the Reign of King James the first, Foster being then Chief justice, tho' the judges in Price 's Case were of another Opinion.  
The Chief justice was now likewise of a different Opinion, for the Statute means something when it says that a Stock shall be raised by the Taxation of every Inhabitant, etc. for putting out of Children Apprentice.  
There are no compulsory words in the Statute for that purpose, nor any which oblige a Master to take an Apprentice, and if not, the justices have not power to compel a Man to take a poor Boy, for possibly such may be a Thief or Spy in the Family.  
But this Order was quashed for an apparent fault, which was, that the Statute has entrusted the Churchwardens and Overseers of the Poor by and with the Approbation of two justices to bind Apprentices, etc. And the Churchwardens are not mentioned in this Order.    

DE Term. Sancti Hill. Anno 1 Gulielmi & Mariae Regis & Reginae, in Banco Regis, 1689.  

Thirsby versus Helbot.  
DEBT upon a Bond for performance of an Award: 
Award void where a person who is a Stranger to the Submission is ordered to be a Surety.  Upon Nullum Arbitrium pleaded, the Plaintiff replied and shown an Award made, which amongst other things was, that the Defendant should be bound with Sureties such as the Plaintiff should approve in the Sum of 150 l. to be paid to him at such a time, and that they should seal mutual Releases, and assigned a Breach in not giving of this Bond.  
There was a Verdict for the Plaintiff, and now Sergeant Pemberton moved in arrest of judgement, that this was a void Award, because 'tis that the Defendant shall be bound with Sureties, etc. and then Releases to be given; now the Sureties are Strangers to the Submission, and therefore the Defendant is not bound to procure them.  
He relied upon the Case of Barns and Fairchild, 
1 Roll. Abr. 259.  which was an Award that all Controversies, etc. should cease, and that one of the Parties should pay to the other 8 l. and that thereupon he should procure his Wife and Son to make such an Assurance, etc. this was held to be void, because it was to bind such persons who were not Parties to the Submission.  
Tremain Serjeant contra. 
E contra.  That Cause doth not come up to this at the Bar, because by this Award the Party was to sign a general Release whether the Defendant paid the Money or not.  
But the Court was of Opinion, that the Award was void, because it appointed the Party to enter into a Bond with such Sureties as the Plaintiff shall like, and releaseth then to be mutually given. Now if the Plaintiff doth not like the Security given then he is not to seal a Release, and so 'tis but an Award of one side.   

Savier versus Lenthal.  
ASsisa ven ' recogn ' si Willielmus Lenthal Armiger Henricus Glover Armiger Johannes Philpot Generosus Thomas Cook Generosus & Samuel Ellis Generosus  etc. 
Assize.  disseisiverunt Thomam Savier de libero tenemento suo in Westm. infra triginta annos etc. Et unde idem Thomas Savier per Jacobum Holton Attornatum suum queritur quod disseisiverunt eum de officio Marr ' Maresc ' Domini Regis & Dominae Reginae coram ipso Rege & Regina cum pertin ' etc.  
The Crier made Proclamation and then called the Recognitors between Thomas Savier Demandant, and William Lenthal Tenant, who were all at the Bar, and severally answered as they were called.  
Then Mr. Goodwin of Greys-Inn arraigned the Assize in French, but the Count being not in Parchment upon Record the Recognitors were for this time discharged and ordered to appear again the next day.  
But the Council for the Tenant relied on the authority in Calvert's Case, that the Title ought to be set forth in the Count, 
Plo. Com. 403. 4 E. 4.6.  which was not done now, and therefore the Demandant ought to be nonsuited.  
But the Writ being returnable that day, was ex gratia Curiae adjourned to the Morrow afterward; and if the Demandant did not then make a Title he must be nonsuited.  
The next day the jury appeared: Then the Crier called Thomas Savier the Demandant, and then the Tenants, and afterwards the Recognitors; and the Assize being arraigned again the Demandant set forth his Title.  
Then Sir Francis Winnington of Council for Mr. Lenthal one of the Tenants appeared after this manner, Vouz avez icy le dit Williem Lenthal & jeo pry oyer deal Brief & del Count  
Then the other Tenants were called again three times, and they not appearing Process was prayed against them.   

Do versus Dawson.  
BAil was put in to an Action brought by the Plaintiff, 
Bail liable if the Principal had two Terms after an Injunction dissolved.  and before he declared, the Defendant obtained an Injunction to stay Proceed at Law, which was not dissolved for several Terms afterwards.  
Then the Injunction was dissolved, and the Plaintiff delivered his Declaration, and had judgement by default; and now he brought a Scire Fac. against the Bail, who pleaded that no Declaration was delivered or filled against the Principal within two Terms after the Action commenced and the Bail entered, and upon a Demurrer the Plaintiff had judgement against them, for the Bail are liable; so as the Principal in the Action declare soon after the Injunction dissolved; and it's no fault in the Plaintiff that he did not declare sooner, for if he had, he would have been in contempt of the Court of Chancery for a Breach of the Injunction.   

Anonymus.  
A Writ of Error was brought to reverse a Recovery suffered in the grand Sessions of Wales. 
Error to reverse a Recovery, there must be a Scire Fac. against the Heir and Tertenants. Dyer 321.   
The Question now was, whether there ought to be a Scire Fac. against the Tertenants and the Heir.  
It was said that 'tis discretionary in the Court, and that the first Case of this nature was in my Lord Dyer, where a Writ of Error was brought in B. R. to reverse a Fine levied in the County Palatine of Chester, and a Scire Facias was brought against the Heir, but not against the Tertenants.  
But the Heir in this Case is an Infant, so that if he be admitted to be a Defendant he ought not to appear during his Minority, and there is no remedy till his full Age.  
Curia. 'Tis not necessary in point of Law, but it seems to be the course of the Court, and that must be followed; and 'tis reasonable it should be so, because the Errors upon a Recovery should not be examined before all the Parties are in Court, therefore there should be a Scire Facias against the Heir and the Tertenants. 
Sid. 213.    

Lambert versus Thurston.  
TRespass Quare vi & armis clausum fregit, etc. 
Trespass Quare vi & Armis, lies for small Damages.  which the Plaintiff had laid to his Damage of 20 s.  
The Defendant demurred to the Declaration, and for cause shown that B. R. hath not cognizance, either by the Common Law, or by the Statute of Gloucester, to hold Plea in such an Action, where the Damages are laid to be under 40 s.  
But the Court were of another Opinion, That an Action of Trespass Quare vi & armis, will lie here, let the Damage be what it will. So the Plaintiff had jugment.    

DE Termino Paschae, Anno 2 Gulielmi & Mariae Regis & Reginae, in Banco Regis, 1690.  

Whitehal versus Squire.  
TRover for a Horse, 
What shall be a Conversion, what not.  the Defendant pleaded Not Guilty, and a special Verdict was found, viz. That John mather's was possessed of this Horse, who on the 4th day of December, in the first year of King James the II. put him to Grass to the Defendant, who kept him till the first day of May following.  
That John mather's died Intestate, and before Administration was granted, the Plaintiff desired the Defendant to Bury the said mather's, and that he would see him satisfied for his Expenses, and accordingly the Defendant did Bury him.  
Then the Plaintiff gave this Horse to the Defendant in part of satisfaction for the Charges of the Funeral, and a Note under his Hand to pay him 23 l. more.  
The Plaintiff afterwards took out Administration, and brought his Action against the Defendant for this Horse; and whether this was a conversion or not, was the Question.  
justice Dolben and Eyre held that it was not, but the Chief justice was of another Opinion.   

Cole versus Knight, Hill. 1 & 2. Rot. 810.  
SCire Fac. upon a judgement of 6000 l. 
Release by one Executor of a Legacy, is not a good bar to a Sci. Fa. upon a Judgement.  brought by the Plaintiffs Knight and Donning, as surviving Executors of John Knight, against the Defendant Cole and his Wife, as Executrix of John Lawford, setting forth, That Sir John Knight, Mr. Eyre and John Knight, had recovered a judgement of 6000 l. against John Lawford; That John Knight survived, who made his Will and appointed John Kent, Thomas Knight and William Donning to be his Executors, that he died, the Debt and Damages not being satisfied, that they the said Knight and Donning proved the Will, that John Kent died, and that John Lawford made his Will and appointed his Daughter Mary, now the Wife of Thomas Cole, to be sole Executrix, and soon after departed this Life, that Cole proved Lawford's Will, and that the Debt was not yet paid.  
The Defendant Cole and his Wife pleaded a Release from Donning, one of the Plaintiffs, by which he acknowledged to have received of the said Cole and his Wife, as Exetutrix of the last Will and Testament of John Lawford, the Sum of 5 l. being a Legacy given to him by Lawford and then in general words he released the said Coal and his Wife, of the Legacy, and of all Actions, Suits and Demands whatsoever which he had or might have against the Defendants Cole and his Wife, as Executrix of John Lawford, or may or can have for any matter or thing whatsoever.  
To this Plea the Plaintiff demurred, and the Question was, whether the Release is a good Bar or not?  
It was argued to be no Bar, for it being given upon the receipt of the Legacy, is tied up to that only, and shall not be taken to release any other thing.  
If a Man should receive 10 l. and give a Receipt for it, and doth thereby acquit and release the person of all Actions, Debts, 
2 Roll. Abr. 409.  Duties and Demands, nothing is released but the 10 l. because the last words must be limited to those foregoing.  
'Tis no new thing in the Law for general words to be restrained by those which follow; as for instance, if a Release be of all Errors, Actions, Suits, and Writs of Error whatsoever, 
Het. 15.  it hath been held that an Action of Debt upon a Bond was not released, but only Writs of Error.  
And this seems to be the intent of the Parties here, that nothing but the Legacies should be released; and therefore those general words which follow, must be confined to the true meaning and intention of him who gave the Release.  
So 'tis if a Man promise to pay 40 s. 
Yelv. 156.  to another during Life, a Release of all Quarrels, Controversies and Demands which he had or may have will not discharge this Annuity, because the Execution of the Promise was not to be till the Rent, should be due.  
So likewise a Release of all Demands will not discharge a growing Rent. 
1 Sid. 141.   
2. If this should be a good Release, it discharges only such Actions which he hath in his own Right; for by the words all Actions which he had are released; 
Cro. Eliz. 6. 1 Leon. 263.  now if an Executor grant omnia bona sua, the Goods which he hath as Executor do not pass.  
E contra. 
E contra.  It was argued that this is a good Bar, for by the first words the Legacy is released, than the subsequent words, viz. all Actions, Suits and demands whatsoever, which he had against the Defendant as, Executor of Lawford, must mean something.  
'Tis true, where general words are at the beginning of a Release, and particular words follow, if the general words agree with those which are particular, the Deed shall be construed according to the special words: But where there are such words at first, and the conclusion is with general words, as 'tis in this Case, both shall stand; for the Rule is, Generalis clausula non porrigitur ad ea quae antea specialiter sunt comprehensa. 
8 Co. 154. b.   
These words do also Release not only such Actions which he had in his own Right, but also as Executor to Mr. Lawford.  
If a Man hath a Lease in right of his Wife, as Executrix to her former Husband, and he grants all his Right and Title therein; by this Grant the Right which he had by his Wife doth pass, for the word His doth imply a propriety in possession.  
But per totam Curiam, 
Curia.  judgement was given for the Plaintiff.  
If an Executor hath Goods of the Testators, and also other Goods in his own Right, and then grants omnia bona sua, in strictness the Goods which he hath as Executor do not pass, because they are not bona sua, but so called because of the Possession which he hath, and therefore it must be a great strain to make general words which are properly applicable to things which a Man hath in his own Right, to extend to things which he hath as Executor.  
It was never the intent of the Party to release more than what he had in his own Right, and that appears by the Recital of the Legacy of 5 l. and therefore the words which follow must have a construction according to the intent of Donning at the time of the making the Release, and shall be tied up to the foregoing words, and then nothing will be discharged but the Legacy.  
As if a Lease for years be made, 
Dyer 255.  and the Lessor enters into a Bond, that he will suffer the Lessee quietly to enjoy during the Term, without trouble of the Lessor, or any other person; if an Entry should be made upon the Lessee, without the procurement or knowledge of the Lessor, the Condition is not broken, for the last words are tied up to the word suffer.  
If the Legacy had not been released by particular words, it would not have been discharged by a Release of all Actions and Demands whatsoever; and therefore there would be a great inconvenience if these general words should be construed to Release any thing besides this Legacy; for suppose there are two Executors and one refuseth to Administer, but meeting with a Debtor of the Testator, gives him a Release of all Actions; will this amount to an acceptance of the Administration? Certainly it will not.  
The words in this Case are not of that extent as to Release Actions as an Execuror; for 'tis a Release which goeth to the right.  
'Tis like the Case where one of the Avowants released the Plaintiff after the taking of the , 
1 Roll. Rep. 246.  which was adjudged void upon a Demurrer, because he had not then any Suit or Demand against the Plaintiff, but had distreined the Beasts as Bailiff, and in right of another.  
justice Dolben cited a Case adjudged in B. R. in the year 1669. it was between Stokes and Stokes.  
The Plaintiff released all which he had in his own Right, there was a Bond in which his Name was used in Trust for another; and afterwards he brought an Action of Debt upon that Bond, to which the Release was pleaded.  
The Plaintiff replied that the Release was only of all such Actions which he had in his own right, and not such which he had in the right of another; upon this they were at Issue, and the Plaintiff had a Verdict, and Mr. Sympson moved in Arrest of judgement, that this Bond must be in his own Right: But the Court affirmed the judgement.   

Anonymus.  
AN Action on the Case was brought for these words, 
Words, where actionable without a Colloquium.  viz. He stole the Colonel's Cupboard-Cloth. It was made a Question whether these words were actionable, there being no precedent discourse laid in the Declaration, either of the Colonel or his Cupboard-Cloath.  
But the Court held the words actionable, for 'tis a charge of Felony, and if such words, as now laid in this Declaration, are not actionable, any person may be scandalised; for 'tis and must be actionable to say of a Man, that he stole my Lord's Horses, or the Parson's Sheep, tho' it doth not appear to what Lord or Parson they did belong.   

Rex versus Silcot.  
THE Defendant was convicted before a justice of the Peace, 
Conviction for keeping a Gun, not having a 100 l. per Annum, and doth not say when. 33 H. 8. c. 6.  upon the Statute of H. 8. for keeping of a Gun, and upon proof it did appear that he had not 100 l. per Annum.  
The Record of the Conviction was removed into B. R. and this Exception was taken to it, viz. non habuisset 100 l. per Annum, but doth not say when, for it may be that he had one hundred pound per Annum at the time when he kept a Gun, but not when he was Convicted.  
It was answered that the words non habuisset, shall relate to all times past, and is as much as to say nunquam habuit, and the conclusion being contra formam Statuti, must explain such words which seem to be doubtful.  
This was compared to the Case where Debt was brought upon the Statute of R. 
1 R. 3. c. 3.  3. for taking away of Goods before the Plaintiff was convicted of the Felony laid to his charge, contra formam Statuti, he being only committed upon suspicion; now though he did not allege that the Goods were taken, 
Cro. Eliz. 749.  for this cause it shall be intended they were so taken when no other cause is showed.  
Curia. This is a conviction before a justice of the Peace, and therefore the time when the Offence was committed should be certainly alleged, viz. that the Defendant praedict. 
Anno  die & had not 100 l. per Annum, for which reason it was quashed.   

Bisse versus Harcourt, Hill. 1 Gulielmi Rot. 217.  
THE Plaintiff brought an Action for 400l. 
Replication not well concluded.  for so much Money had and received of him by the Defendant.  
The Defendant pleaded an Attainder of High Treason in Abatement, and therefore ought not to answer the Declaration.  
The Plaintiff replied, that after he was Attainted, and before this Action brought he was pardoned, and concludes thus, Unde petit Judicium & dampna sua.  
The Defendant demurs, and for cause shown, 
Rast. Ent. 663. b. 681. Co. Ent. 160.  that the Replication is not well concluded, for dampna sua ought to be left out, and of that Opinion was the Court, and therefore a Rule was made that he might discontinue this Action without Costs.   

Mordant versus Thorold. Hill. 1 & 2 Gulielmi, Rotulo 340.  
THE Plaintiff brought a Scire Fac. upon a judgement. The Case was thus, Viz. Ann Thorold recovered in Dower against Sir John Thorold, in which Action Damages are given by the Statute of Merton. 
20 H. 3. c. 1.   
Sir John Thorold brought a Writ of Error in B. R. and the judgement was affirmed.  
Then the Plaintiff in Dower brought a Writ of Enquiry for the Damages, and married Mr. Mordant, and died before that Writ was executed.  
Mr. Mordant takes out Letters of Administration to his Wife, and brought a Sci. Fa. upon the judgement, and the question was whether it would lie.  
This depended upon the construction of the Statute of King Charles the II. which enacts, That in all personal Actions, 
17 Car. 2. c. 8.  and real and mixed, the death of either party between the Verdict and the judgement shall not hereafter be alleged for Error, so as such judgement be entered within two Terms after such Verdict.  
Sergeant Pemberton insisted that this was a judicial Writ, and that the Administrator had a right to it, though the Wife died before the Profits were ascertained by the Writ of Enquiry; 'tis no more than a plain Sci. Fa. upon a judgement, which an Executor may have, and which was never yet denied, though this seems to be a Case of the first Impression.  
The Council on the other side argued, that 'tis true, an Executor may have a Scire Facias upon a judgement recovered in the life of the Testator by reason only of such Recovery, but this Scire Facias is brought for what never was recovered, because the Wife died before any thing was vested in her; for the judgement will stand so as to effect the Lands, but not for the Damages.  
Curia. When a Statute which gives a remedy for mean Profits is expounded, it ought to be according to the Common Law. Now where entire Damages are to be recovered, and the Demandant dies before a Writ of Enquiry executed, the Executor cannot have any remedy by a Scire Facias upon that judgement, because Damages are no duty till they are assessed. Sed adjornatur.    

DE Term. Sanctae Trin. Anno 2 Gulielmi & Mariae Regis & Reginae in Banco Regis, 1690.  

Shotter versus Friend & Vxor '.  
Hill. 2 Willielmi Rot. 39  
THE Plaintiff and his Wife declared upon a Prohibition setting forth, 
Proof by one Witness good in the Spiritual Court.  that John Friend on the 13th of October, 22 Car. 2. made his Will, by which he bequeathed to Mary Friend 10 l. to be paid to her within two years after his decease, and that he made Jane, the Wife of the Plaintiff Shotter, Executrix, and died; that the said Executrix whilst sole and unmarried, paid the said Legacy to Mary Friend, who is since dead; that Thomas Friend, the Husband of the said Mary, did after her death demand this Legacy in the Consistory Court of the Bishop of Winton; that the Plaintiff pleaded payment, and offered to prove it by one single Witness, which Proof that Court refused though the Witness was a person without Exception, and thereupon Sentence was given there against the Plaintiff, which Sentence was now pleaded, and upon Demurrer to the Plea,  
The Question was, whether upon the whole matter the Defendant should have a Consultation, or whether a Prohibition should be granted, because the proof by one Witness was denied by that Court.  
It was argued that the Defendant should not have a Consultation, because Matters Testamentary ought to have no more favour than things relating to Tithes, in which Cases the Proof by one Witness hath been always held good.  
So 'tis in a Release to discharge a Debt, which is well proved by a single Testimony, and it would be very inconvenient if it should be otherwise; for Feoffments and Leases may come in question, which must not be rejected, because proved by one Witness.  
A Modus decimandi comes up to this Case, upon the Suggestion whereof Prohibitions are never denied, and the chief reason is, because the Spiritual Court will not allow a Modus to be any discharge of Tithes of Kind.  
The Courts of Equity in Westminster-Hall give Relief upon a Proof by one Witness, so likewise do the Courts of the Common Law if the Witness is a good and credible person.  
'Tis true, a Prohibition shall not go upon a Suggestion that the Ecclesiastical Court will not receive the Testimony of a single Witness: If the Question is, upon Proof of a Legacy devised, or Marriage or not, or any other thing, which originally doth lie in the Cognizance of that Court; but payment or not payment is a matter of Fact triable at the Law, and not determinable there; if therefore they deny to take the Evidence of a single Witness a Prohibition ought to go. 
2 Inst. 608.   
2. The Sentence is no obstacle in this Case, because the Plaintiff had no Right to a Prohibition until the Testimony of his Witness was denied, and Sentence thereupon given; and this is agreeable to what hath been often done in cases of like nature.  
As for instance, 
Cro. Eliz. 88 Moor 907.  Prohibitions have been granted where the Proof of a Release of a Legacy by one Witness was denied.  
So where the Proof of payment of Cythes for Pigeons was denied upon the like Testimony. 
Cro. Eliz. 666. Moor 413. 2 Rol. Rep. 439. 2 Rol Abr. 300. pl. 9 299 pl. 14, 17. Yelv. 92. Latch. 117. 3 Bulst. 242. Hutt. 22.   
So where a Suit was for Subtraction of Cythes, and the Defendant pleaded that he set them out, and offered to prove it by by one Witness, but was denied, a Prohibition was granted.  
And generally the Books are, that if the Spiritual Court refuse such Proof, which is allowed at the Common Law, they shall be prohibited.  
There is one Case against this Opinion, which is, that of Roberts in 12 Co. 
12 Co. 65.  Rep. but it was only a bare Surmise and of little Authority.  
Those who argued on the other side held that a Consultation shall go, 
E contra.  and that for two Reasons.  
1. Because a Prohibition is prayed after Sentence.  
2. Because the Ecclesiastical Court have an original jurisdiction over all Testamentary things.  
As to the first Point, 'Tis plain that if that Court proceed contrary to those Rules which are used and practised at the Common Law, yet no Prohibition ought to go after Sentence, but the proper remedy is an Appeal.  
2. It cannot be denied, but that that Court had Cognizance of the principal matter in this Case, which was a Legacy, and Payment or not is a thing collateral. Now wherever they have a proper jurisdiction of a Cause both that and all its dependences shall be tried according to their Law, which rejects the Proof by a single Witness.  
This was the Opinion of justice Popham and Williams in those times, when most of the Cases cited on the other side were under debate.  
In the Case of Brown and Wentworth a Revocation of a Will was offered to be proved by a single Witness in the Spiritual Court, which being denied a Prohibition was prayed in B. R. 
Yelv. 92.  but denied, because the Will being the principal matter of which that Court had an original jurisdiction, therefore the Revocation thereof, which was a collateral matter, but depending upon the Principal, shall be tried there; for when the Original belongs properly to their determination, all dependences thereon shall follow it, and be tried by them according to their Law.  
In Easter-Term 4 Car. 1. this came to be a Question again; 
2 Cro. 264. 12 Co. 67.  it was upon a Libel for a Legacy, and Plene administravit pleaded, which they endeavoured to prove by the Testimony of a single Witness and denied: In that Case Croke and Yeluerton justices were against the Prohibition, because a Suit for a Legacy was a thing merely Spiritual, and Payment thereof is of the same nature; so that the Ecclesiastical Court hath a proper jurisdiction both of the Matter and the Proof.  
By these Instances it may be seen that 'tis not yet a settled Point that a Proof by one Witness in that Court is good; 
Her. 87. Sid. 161.  for Prohibitions have been both granted and denied.  
It cannot be a reason to grant a Prohibition to the Spiritual Court for refusing such Proof which is allowed at the Common Law, because though the Proof by a single Witness is allowed at the Law, yet 'tis not a conclusive Evidence, because the jury who are of the Vicinage are supposed to know the Fact and may give a Verdict upon that knowledge without Proof or Witness, as well as where there is but one.  
In Michaelmas-Term following the Court were all of Opinion that no Consultation ought to go, for as where the Ecclesiastical Court proceeds upon things merely Spiritual no Prohibition is to be granted as in Suits about Probates of Wills, etc. so where they meddle with Temporal Matters or refuse to admit such Proof which is allowed at the Common Law, no Consultation shall go.  
If the Law should be otherwise it would be inconvenient for all Executors and Administrators, for if they should be compelled to prove payment of Debts by two Witnesses they might often fail of that Proof, and so pay the Money twice.  
Such Proof which is good at the Common Law ought to be allowed in their Court, and at the Common Law 'tis not necessary to prove a Payment of a Debt by two Witnesses.  
They may follow their own Rules concerning things which are originally in their Cognizance; but if any collateral Matter doth arise, as concerning a Revocation of a Will, or Payment of a Legacy, if the Proof be by one Witness they ought to allow it.  
Tithes are of Ecclesiastical Cognizance; now if a Libel should be brought for Subtraction of Tithes, and the Defendant proves by one Witness, that he set them out from the nine parts tho' the Parson had not any notice of it (which he is not to have at the Common Law, though 'tis otherwise by their Law) that Court must allow this Proof otherwise a Prohibition must go.  
2. As to the other Point a Prohibition may be granted as well after as before Sentence, but the Sentence in this Case is the very ground of the Prohibition.  
justice Dolben cited a Case between Richardson and Desborow in B. R. Hill. 1675. which was a Devise of a Legacy of 100 l. The Executor was sued, who pleaded, that the Testator owed another person the like Sum of 100 l. upon Bond, which being paid he had not Assets ultra: And upon Proof in the Spiritual Court it appeared there was but one Witness to the Bond, which not being a good Proof of it in their Law, there was a Sentence for the Payment of the Legacy, and afterwards a Prohibition was granted upon the suggesting of this Matter.   

Ashcomb versus Inhabitants Hundredi de Elthorn.  
Hill. 1. Rot. 901.  
AN Action was brought upon the Statute of Winton for a Robbery done in the Parish of Hamonsdworth in Longford Lane in the said Hundred: The Case was thus, viz. 
A person was rob who refused to make Oath whether the Hundred may be sued.   
The Plaintiff employed one Coxhead his Servant to sell fat Cattle in Smithfield, who sold them for 106 l. which Money he delivered up in two Bags to one Strange a Quaker, who was rob in the Company of Coxhead, he being also rob of 12 s.  
They both gave notice of this Robbery to the Inhabitants of the next Village, and Coxhead was examined by the justice of the Peace dwelling in the County and Hundred where the Robbery was committed, pursuant to the Statute, etc. before whom he made Oath, that he did not know any of the Robbers; 
27 El. c. 13.  but Strange being a Quaker refused to be examined upon Oath.  
Mr. Ashcomb the Master brought an Action against the Hundred, and all this Matter was found specially.  
Now the Question was whether the Action was well brought in the name of the Master; and so whether the Hundred should be liable to pay the Money of which the Quaker was rob, he refusing to be examined upon Oath.  
In this Case the Statute of Queen Elizabeth was considered, which was made in favour of the Hundred; for it enacts, That the Party rob shall not maintain any Action against the Hundred, except he give notice of the Robbery with convenient speed to the Inhabitants of some Town, Vill or Hamlet near the place where he was rob; and except within twenty days next before the Action brought he be examined upon Oath before a Justice of the County inhabiting in the Hundred where the Robbery was committed, or near the same, whether he knew the Parties who rob him or either of them.  
It was agreed that the Master may have an Action for a Robbery committed upon the Servant, but that is by virtue of the Statute of Winton. 
Mich. 1658.  The Case of Jones against the Hundred of Bromley is to that purpose, which was a Robbery upon himself, Wife and Servant, the Money being taken from the Servant, and the Master made Oath that he did not know any of the Robbers, but it happened the Servant did know one of them whose Name was Leonard, of which he did then inform his Master; and this Matter appearing to the jury it was found specially, and upon the Argument of that special Verdict these Points were resolved.  
1. That the Oath of the Master without the swearing of his Servant is good, because the Servant had only the bare Custody of the Mony.  
2. That the Information then given by the Servant to the Master of his Knowledge of one of the Robbers did not oblige the Master, because the Money shall be said to be in his possession and not of the Servant, the Master being then present, which is all the difference between that Case and this at the Bar; so that the Master is the person rob within the meaning of the Statute of Winton although the Money be in the hands of the Servant.  
Suppose the Servant had received 1000 l. and not being able to carry it himself had employed ten Men, each to carry 100 l. and they had been all rob, the Owner may have an Action against the Hundred upon the Affidavit of one of the persons rob; the reason is, because the possession shall follow the property, and the possession of the whole will follow every part.  
There are Authorities to prove that if the Servant is rob the Master may give Evidence what Money was delivered to him, 
2 Roll. Abr. 685.  though that might be as well proved by another Witness.  
Now though all this be admitted, yet an Action will not lie against the Hundred by the Master in the Case at the Bar; for the Statute of Queen Elizabeth being made so much in favour of the Hundred ought to be pursued.  
The Reasons why an Oath is enjoined by that Statute are:  
1. That the person rob should enter into a Recognizance to prosecute the Robbers, if he knew them or any of them.  
2. That the Hundred might be excused upon the Conviction of such person or persons.  
3. To prevent a Robbery by Fraud.  
Now suppose the Servant is entrusted with Money, and rob by Confederacy, shall the Hundred be answerable because the Servant hath broke his Trust? 
Cro. Eliz. 142. 1 Leon. 323.  No, the Servant ought to be sworn for the purposes mentioned in that Act, which if he refuse the Master hath lost his Action.  
But if the Servant is rob in the Company or presence of his Master the Money is still in judgement of the Law in the possession of the Master, 
Styles 156, 319  and that was the reason of the judgement in Jones' Case.  
This is not like the Case of a common Carrier, who though he may be said to be a Servant, yet he is entrusted by this Law.  
Curia. This Action might have been well brought for the whole by Coxhead alone (but 'tis now too late, the year being expired) for where a Servant is rob of part of his Master's Goods and part of his own he may have an Action, 
Brownl. 155.  and recover judgement for the whole; and therefore at another day the Plaintiff had judgement for 26 s. only.   

Pain versus Patrick, and others.  
Pasch. 2 Gulielmi Rot. 43.  
THIS was a Special Action on the Case brought by Isaac Pain against Edward Patrick and William Boulter for hindering the Plaintiff to go over a Ferry: 
Action on the Case will not lie for disturbing or hindering a passage in a Common Highway, but it must be by Indictment.  The Declaration sets forth that the Vill of Littleport in the Isle of Ely is an ancient Vill within which there is a River called Wilner River, over which there was an ancient passage in a Ferry-Boat from the North East part of the said Vill to the end of Ferry-Lane, and from thence to another place called Adventurers Bank; that this passage was for all People at a certain price, etc. excepting the Inhabitants of Littleport living in ancient Houses there, who by reason of an ancient Custom in the said Vill were to pass ad libitum suum with paying Coll, etc.  
That the Plaintiff was an Inhabitant in an ancient Mesuage in the said Vill, and that there was an ancient Ferry-Boat kept there by the Owners thereof till the first day of May in such a year; after which day the Defendants did not keep the same per quod the Plaintiff lost his Passage, etc.  
The Defendants protestando that the Passage was not in a Ferry-Boat, protestando etiam that there was no such Custom, etc. and that the Plaintiff was not an Inhabitant in an ancient Mesuage in Littleport; Pro Placito dicunt that before the exhibiting of the Bill they did erect a Bridge over the said River, where the Passage was anciently, and this was done and maintained at their own Costs, and that the Plaintiff melius & celerius could pass over the said Bridge, etc. This was pleaded in Barr.  
The Plaintiff replied, that he per aliquem Pontem libertatem passagii trans & ultra Rivum predict ' secundum consuetudinem praed. in narratione mentionat ' habere non permissus fuit contra consuetudinem praed. Et hoc paratus est verificare, etc.  
The Defendants demurred, and the Plaintiff joined in Demurrer.  
The Questions were:  
1. Whether this was a good Custom, as laid in the Declaration, for the Inhabitants of a Vill to claim to be discharged of Coll ratione comorantiae.  
2. If the Custom is good, then whether the Defendants Plea in Barr is also good to discharge themselves from keeping of the Boat.  
3. Whether the Plaintiff can maintain this Action.  
This Case was argued now, and in Easter-Term following by Council for the Defendants, and in the same Term by Council for the Plaintiff.  
Those who argued for the Defendants said, that as to the first Point, though this is set forth by way of Custom, yet 'tis in the nature of a Prescription which is always alleged in the person, but here 'tis for the Inhabitants of a Vill, etc.  
Now this cannot be good by way of Prescription, because in such Case there must be a certain and permanent Interest abiding in some person, which cannot be here; for a mere Habitation or dwelling in an House will not give a Man such an Interest.  
That which makes a Prescription good is Usage and reasonableness, 
1 Leon. 142. 3 Leon. 41.  but it cannot be ex rationabili causa to prescribe ad libitum suum, for the Ferryman hath neither any consideration or recompense for the keeping of his Boat, when the Inhabitants may pass over at their pleasure without paying Toll.  
'Tis true, a Man may prescribe to have Common sans nombre, which in strictness is to put in as many Cattle, as he will; but if he lays his prescription ad libitum suum, 'tis not good.  
If therefore this is not good by way of Prescription it cannot be supported by Custom, because that also must extend to what hath some certainty, and which must likewise have a reasonable beginning.  
Now there can be no certainty in this Custom, 
Hob. 86. 6 Co. 60.  because the Plaintiff claimeth it only during his Comorancy in a Mesuage, in which he had neither a certain time or Estate, and this is such a transitory interest, which is not allowed in the Law.  
And therefore it hath been adjudged that a Custom for an Infant to sell his Lands when he can measure an Ell of Cloth is void, 
1 Rol. Rep. 32.  because 'tis incertain of what Age he may then be, and 'tis equally as incertain, how long a Man may live in one of these ancient Houses.  
Such a Custom might be good in point of Tenure, for it might have a reasonable commencement between Lord and Tenant; but this cannot be good as laid in this Declaration, for several Reasons.  
1. Because 'tis not alleged that the Defendants of right aught to keep a Boat there, or that it was necessary for them to be always attending, for possibly it might require the use of skilful Men; and therefore in all Actions brought for not repairing of Ways 'tis alleged that the Defendant reparare debuit.  
2. Because it brings a Charge without any recompense, 
8 E. 4.18. Br. Tit. Customs pl. 46.  and this must be very unreasonable. 'Tis true, that a Custom for Fishermen to dry their Nets upon another Man's Ground is good, which may seem to be a Charge upon the Land without any Reward; but the reason is, because the catching of Fish is for the public benefit, and every man may have advantage by it.  
A Custom to have solam & separalem pasturam hath been formerly doubted whether good or not; but 'tis now held to be good because the Lord of the Soil might have some other Recompense for it.  
3. Because 'tis unlimited, for the Tenants may pass and repass ad libitum according to this Custom, but it ought to be laid for their necessary occasions, for otherwise the Defendants may be deprived of their Freehold, because the Tenants may always keep the Boat in use.  
The 2d. Point was not much insisted on, which was, as to the matter of the Plea; only it was said, that it was not so well to take away the whole Prescription, that the Plea might have been good if it had been quousque the Bridge fall or decayed, than the Prescription doth revive again.  
The 3d. Point. Then supposing the Declaration to be sufficient, yet as this is upon the Record the Plaintiff could not have this Action, because he had set forth this to be a public and common Ferry for all People to pass, and that he was hindered, but doth not show any particular damage, and therefore can have no cause of Action.  
'Tis like the Case of a common Highway which is out of repair, 
27 H. 8. 27. a. 1 Inst. 56. Moor 108. Cro. Eliz. 664. 5 Co. 104.  for which no man can bring an Action unless he hath a particular damage or loss more than the rest of the People passing that way, but the Party ought to be indicted, and this is to prevent multiplicity of Suits; for if one man may have an Action every person travelling that way may have the like.  
Another Exception was taken to the Declaration, viz. that all the Custom is laid to be for the Inhabitants of an ancient Vill to pass Toll-Free from Ferry-Lane to Adventurers-Bank, and they do not allege that Bank to be within the Vill.  
Those who argued for the Plaintiff held this to be a good Custom, 
E contra.  as set forth by him, and as such 'tis not confined to the same Rules with a Prescription, which must have a lawful commencement; but it is otherwise in a Custom, for 'tis sufficient if it be certain and reasonable.  
The Cases cited on the other side are not to this purpose, because they concern only such Customs which relate to some Interest or profit in the Land of another person, but this Custom is only in a matter of exemption and easement.  
This was the very difference taken by the judges in Gatewood 's Case, 
6 Co.  where it was held to be a good Custom for every Inhabitant of a particular Town to have a Way over such Lands to go to Church or Market, because this was matter of easement and no profit.  
Now a Passage over a River is no more than a way, and may be tied up to one or more persons according to their comorancy.  
Since therefore no Interest is claimed by the Plaintiff, but only an easement, this Prescription need not be laid in the Owners, but in the Inhabitants of the Vill of Littleport. It may be compared to a Case where a Custom was laid for the Inhabitants of a Town to pay a Modus in discharge of Tithes; 
Hob. 118. Yelv. 163.  this was held good, because it was by way of discharge in the persons Lands, without claiming any profit in that of another.  
'Tis also like the common Case of a Market, when a Man has pitched his Stall, there no person can remove it, for he hath a right ratione comorantiae.  
Then as to the first Objection upon the first Point, That a Custom to pass and repass, ad libitum, cannot be good; it was answered, this passage was in the nature of a High way, over which a Man may pass as often as he will; and therefore 'tis well enough as laid in the Declaration.  
2. As to the Objection, that it ought to be laid in some person, and not in the Inhabitants, it was said this was an easement to the Plaintiff, and no such thing can be to one man but it makes another a Crespasser, and 'tis no Interest in the Plaintiff to be discharged of a Charge.  
A Custom to grind at the Lords Mill discharged of Toll, rules this Case; for is it not as much charge for a Lord of a Manor to keep a Mill as for the Defendant to keep a Boat?  
If the Plaintiff had prescribed, than this had come within the the Rules of Gatewood 's Case.  
But he hath alleged a Custom, and when such Allegations are made, they ought not to be too narrowly searched for: No reason can be given why an Infant at 15 years of Age shall be capable to make a Feoffment in one Town and not in another? 
18 Ed. 4.3.   
3. Then as to the third point, that this being laid to be a Common Ferry, the Plaintiff ought to show some special damage to maintain an Action.  
To which it was answered that the right was on the Plaintiff's side, and that was sufficient to maintain the Action.  
'Tis not like the Case of a Common-High-way, as mentioned on the other side, because this Action is confined to Littleport alone, and no Man is entitled to it, but such who inhabit that Vill, so that every Man cannot bring an Action.  
As to the Exception to the form of the Declaration, that Adventurers-Bank is not laid to be in the Vill, it was said that the Plaintiff only claimed a right of passage over the River, which is laid to be in the Vill of Littleport, 
2 Cro. 555, 557.  the Bank is only the terminus ad quem; 'tis like the Case where the Defendant covenanted to repair a Mill and the Watercourses in a Parish, and also the Banks belonging to the Mill, in which Case the Plaintiff had judgement, tho' he did not show in what Vill the Banks were, because it shall be intended to be in the same Vill where the Mill was.  
Afterwards in Trinity- Term, 3 Willielmi, 
Judicium.  judgement was given for the Defendant, absent Dolbin justice, who was also of the same Opinion.  
It was held that the Custom was well alleged, both as to the manner and matter; 'tis true, all Customs must have reasonable beginnings, but it would be very difficult to assign a lawful commencement for such a Custom as this is, so it would be for the Custom of Gavelkind, or Burrough English, which are circumscribed to particular places; and since 'tis sufficient to allege a Custom, by reason of the place where 'tis used; it may be as reasonable in this Case to say that there hath been an ancient Ferry-Boat kept in this place; 'tis but only an inducement to the Custom, which did not consist so much in having a Right to the Passage, as to be discharged of Toll.  
This might have a lawful beginning, either by a Grant of the Lord to the Ancestors of the Defendant, or by the agreement of the Inhabitants.  
A Custom alleged for all the Occupiers of a Close in such a Parish to have a Footway, 
Cro. Car. 419. Co. Lit. 110. b. Cro. Eliz. 746. 1 Roll. Rep. 216.  etc. is not good; the reason is because the Plaintiff ought to prescribe in him who hath the Inheritance; but where a thing is of necessity, and no manner of profit or charge in the Soil of another, but only a thing in discharge, or for a Way to a Market, or to be quit of Toll, in such cases not only a particular person, but the Inhabitaints of a Vill may allege a Prescription.  
This may be as well alleged, as a Custom to turn a Blow upon another man's Land, or for a Fisherman to mend his Nets there.  
'Tis good as to the matter, for 'tis only an easement; 'tis like a Custom alleged for a Gateway or Watercourse, and for such things Inhabitants of a Vill, 
Cro. Eliz. 441.  or all the Parishioners of a Parish may allege a Custom or Usage in the place.  
2. Point. But as to the Plea in Bar, 'tis not good, because the execting of a Bridge is but laying out a Way; 'tis a voluntary act, and no man by reason of his own act can be discharged of what he is to do, upon the interest he hath in the Ferry.  
If the Defendant had petitioned the King to destroy the Ferry, and got a Patent to erect a Bridge, and had brought a Writ ad quod dampnum, and it had been found by inquisition to be no damage to the People, than he might safely have built this Bridge.  
3. But notwithstanding the Plea is not good, yet the Plaintiff can have no advantage of it, because he cannot have an Action on the Case for this matter, for by his own showing, 'tis a common Passage, 
Cro. Car. 132, 167. 1 Inst. 56. a. Cro. Eliz. 664. 13 Co. 33. Davis 57  which is no more than a common Highway; now for disturbing him in such a Passage, no Action on the Case will lie, unless he had alleged some particular damage done to himself; for if he could maintain such an Action, any other person is entitled to the like, and this would be to multiply Suits, which the Law will not allow, but hath provided a more apt and convenient remedy, which is by presentment in the Leet.  
If Toll had been extorted from him, 
F. N. B. 94. 22 H. 6.12.  than an Action on the Case had been the proper remedy, but no such thing appeared upon this Declaration.   

Prince 's Case.  
THE Suggestion in a Prohibition was, that Prince was seized of the Rectory of Shrewsby, ut de feodo & jure, and that he being so seized, de jure, aught to present a Vicar to the said place, but that the Bishop of the Diocese had, of his own accord, appointed a person thereunto.  
This Exception was taken to it, viz. He doth not say that he was Impropriator, but only that he was seized of the Rectory in Fee, so it not appearing that he had it Impropriate, he ought not to present the Vicar.  
justice Dolben replied, That in several places in Middlesex, the Abbots of Westminster did send Monks to say Mass, and so the Vicaridges were not endowed, but he put in and displaced whom he pleased.  
That he had heard my Lord Chief justice Hales often say, that the Abbot had as much reason to displace such Men, as he had his Butler or other Servant.  
Curia. Declare upon the Prohibition, and try the Cause.   

Harrison versus Hayward.  
Pasch. 2 Gulielmi, Rot. 187.  
AN Agreement was made to assign a Stock upon Request, 
When a thing is to be done upon request, the performance must be when the person requires it, and the Defendant cannot plead that he was ready to assign after the promise made.  and for non-performance an Action was now brought, setting forth the Agreement, and that the Plaintiff did request the Defendant at such a time, etc.  
The Defendant pleaded that he was ready to assign the Stock after the promise made, etc. and upon a Demurrer it was ruled if the thing was not to be done upon Request, than the Defendant was bound to do it in a convenient time after the promise, but it being to be done upon request, the time when the Plaintiff will require the performance of the Agreement, is the time when the Defendant must do it.  
judgement pro Quer.   

Thompson versus Leach.  
WRit of Error upon a judgement in Ejectment given in the Common-Pleas; 
Surrender not good without acceptance of the Surrendree. 2 Vent. 198.  the Case upon the special Verdict was thus: Viz.  
Simon Leach was Tenant for Life of the Lands in question, with Remainder in contingency to his first, second and third Son in Tail Male, Remainder to Sir Simon Leach in Tail, etc. This Settlement was made by the Will of Nicholas Leach, who was seized in Fee.  
The Tenant for Life, two months before he had a Son born, did in the absence of Sir Simon Leach, the Remainder man in Tail, seal and deliver a Writing, by which he did Grant, Surrender and Release the Lands which he had for Life, to the use of Sir Simon Leach, and his Heirs, and continued in possession five years afterwards, and then, and not before, Sir Simon Leach did accept and agree to this Surrender, and entered upon the Premises.  
But that about four years before he thus agreed to it, Simon Leach the Tenant for Life, had a Son born named Charles, Lessor of the Plaintiff, to whom the Remainder in contingency was thus limited.  
The Tenant for Life died, than Sir Simon Leach suffered a Common Recovery in order to bar those Remainders.  
1. The Question was, whether this was a legal and good Surrender of the Premises, to vest the Freehold immediately in Sir Simon Leach, without his Assent, before Charles Leach the Son of Simon Leach the Surrenderor was born, so as to make him a good Tenant to the Praecipe, upon which the Recovery was afterwards suffered.  
If so, than the contingent Remainders to the first and other Sons is destroyed.  
2. If the Estate was not vested in the Surrendree till his actual assent, such assent shall not relate (though after the execution of the Deed) so as to pass the Estate at the very time it was sealed and delivered.  
judgement being given in the Common-Pleas, by the Opinion of three justices, against justice Ventris, that the contingent Remainder was not destroyed by this Surrender, because it was not good without the acceptance, and till the actual assent of the Surrendree, this Writ of Error was now brought upon that judgement.  
This Case depended several Terms, and those who argued to maintain the judgement insisted that here was neither a mutual agreement between the Parties, or acceptance or entry of the Surrendree, which must be in every Surrender, these being solemn acts in such Cases required to the alteration of Possessions, and to prevent Frauds.  
That the Law hath a greater regard to the transmutation of Possessions, than to the alteration of Personal things, and therefore more Ceremonies are made requisite to that, than to transfer a Chattel from one to another.  
In all Feoffments there must be Livery and Seisin, 
Quaere, For if Tenant for Life surrender to him in Reversion, the Surrendree hath a Freehold in Law, before Entry. Co. Lit. 266. b. 1 Inst. 266. b.  so in Partitions and in Exchanges, which are Conveyances at the Common Law, no Estate is changed until an actual Entry, though in the Deed itself such Entry is fully expressed.  
Here the Surrendree is a Purchaser of the Estate, and yet did not know any thing of it, than which nothing can be more absurd.  
'Tis admitted that every Gift and Grant enures to the benefit of the Donee and Grantee, but not where the assent of the Parties is required to complete the act.  
Assent and Disassent are acts of the Mind; now 'tis impertinent to say that a Man gave his Assent to a thing which he never heard.  
A Lease for years is not good without Entry, nor a Surrender without Acceptance. 
Lane 4. 3 Cro. 43.   
'Tis no new thing to compare a Surrender to a resignation of a Benefice; 
2 Cro. 198. Dyer 294. Br. Abr. tit. Bar 81. Yelv. 61. Sid. 387.  now if an Incumbent should resign to the Ordinary, and the Patron should afterwards present to that Living such presentation is void if the Ordinary had not accepted the resignation, the reason is, because a resignation doth not pass the Freehold to the Bishop, but puts it only in Abeyance till his acceptance; and 'tis not an Objection to say that this is grounded upon an Ecclesiastical Right, and not at the Common Law, or that a Formedon will not lie of a Rectory; for tho' 'tis of Ecclesiastical Right, yet 'tis of Temporal Cognizance, and shall be tried at Law.  
The precedent in Rastal may be objected, where the surviving Lessee for years brought an Action of Covenant against the Lessor for disturbing of him in his possession, 
Rast. Ent. tit Covenant 136. b. Owen 97. Dyer 28. Rast. Enttit. Debt. 183, 176. b. 177. a. Br. Sur. 39 Cro. Car. 101. Fitz. Abr. tit. Bar 262. Co. Ent. 335.  and the Lessor pleaded a Surrender to himself without an acceptance; but the Plaintiff in that Case said nothing of a Surrender.  
In the same Book a Surrender was pleaded ad quam quidem sursum redditionem the Plaintiff agreavit: so in Fitzherbert 's Abridgement issue was joined upon the acceptance, which shows 'tis a material point.  
No inconvenience can be objected that an Assent is made a Legal Ceremony to a Surrender, for 'tis not inconvenient even in the Case of an Infant, who by reason of his nonage is not capable to take such a Conveyance, because he cannot give his assent, but he may take the Land by way of Feoffment, or Grant, or any Conveyance of like nature, without his Assent.  
By the very definition of a Surrender, 
Co. Lit. 337. b. Bro. tit. Surrender pl. 45. Dyer 110. b. Fitz. 39  it plainly appears that there must be an assent to it; for 'tis nothing else but a yielding up of an Estate to him who hath the immediate Reversion or Remainder, wherein the Estate for Life or Years may drown by mutual Agreement between the Parties.  
'Tis true, an Agreement is not necessary in Devises, nor in any other Conveyances, which are directed by particular Statutes, or by Custom; but 'tis absolutely necessary in a Surrender, which is a Conveyance at the Common Law; 'tis such an essential Circumstance, that the Deed itself is void without it, 'tis as necessary as an Attornment to the Grant of a Reversion, or an Entry to a Deed of Exchange, which are both likewise Conveyances at the Common Law.  
There are various Circumstances in the Books which declare what acts shall amount to an Acceptance or Agreement, 
Cro. Eliz. 488. Owen 97. 31 Ass. pl. 26.  but it was never yet doubted, but that an acceptance was necessary to a Surrender.  
So in the Entries, 
Fitz. tit. Debt 149. 9 E 3.7. b. contra. Rast. Ent. 136.  a Surrender is sometimes pleaded without an Acceptance; but 'tis always that the Surrendree by virtue of the Surrender expulit & ejecit the Plaintiff, which amounts to an Agreement.  
The Law is so careful in these Conveyances, 
Kelwway 194, 195. Dyer 358. pl. 48.  that it will not presume an assent without some act done; if therefore a Deed cannot operate as a Surrender without an acceptance, then in this Case no such shall be presumed, because the jury have found it expressly otherwise; then by the birth of Charles Leach, the contingent Remainder is vested in him, which arising before the Assent of the Surrendree, makes such assent afterwards void, for there can be no intermediate Estate.  
Besides, if an Assent should not be necessary to a Surrender, this inconvenience would follow, viz. if a Purchaser should take in several Mortgages and Extents, and keep them all on foot in a third persons name (which is usual) to prevent mean encumbrances, and the Mortgagor should afterwards Surrender his Estate without the assent of the Purchaser, if this should be held a good Conveyance in Law, it would be of very mischievous consequence.  
2. If the Estate is not immediately transferred to the Surrendree at the sealing of the Deed, without the assent of the Surrenderor, it shall not pass afterwards when he gives his consent, and that by way of Relation, for if that should be allowed then the Surrenderor might have kept the Deed in his Pocket, as well fifty as five years after the execution thereof, which would be so prejudicial, that no Man could be assured of his Title.  
'Tis true, when a Bargain and Sale is made of Land, 
2 Inst. 675. 3 Co. 36.  such a day, etc. and two days afterwards the Bargainor enters into a Recognizance; then the Deed is enrolled, within the six Months, by this means the Conusee of the Statute is defeated; for after the enrolment the Land passeth ab initio, and the Bargainee in judgement of Law was seized thereof from the delivery of the Deed, but not by way of Relation, but by immediate Conveyance of the Estate, by virtue of the Statute of Uses.  
But the Law will not suffer contingent Remainders to waver about, and to be so incertain that no Man knows where to find them, which they must be, if this Doctrine of Relation should prevail.  
Now suppose the Surrendree had made a Grant of his Estate to another person, before he had accepted of the Surrender, and the Grantee had entered, would this subsequent assent have divested this Estate and made the Grant of no effect? if it would, then here is a plain way found out for any Man to avoid his own acts, and to defeat Purchasers.  
Therefore 'tis with great reason that the Law provides that no person shall take a Surrender but he who hath the immediate Reversion, and that the Estate shall still remain in the Surrenderor until all acts are done which are to complete the Conveyance.  
Those who argued against the judgement, 
E contra.  held that the Estate passed immediately without the assent of the Surrenderor, and that even in Conveyances at the Common-Law, 'tis divested out of the person, and put in him to whom such Conveyance is made without his actual assent.  
'Tis true, in Exchanges the Freehold doth not pass without Entry, nor a Grant of a Reversion without an Attornment, but that stands upon different Reasons from this Case at the Bar; for in Exchanges the Law requires the mutual acts of the Parties exchanging, and in the other there must be the consent of a third person.  
But in Surrenders the assent of the Surrendree is not required, for the Estate must be in him immediately upon the execution of the Deed, if he doth not show some dissent to it.  
If a Man should plead a Release without saying ad quam quidem relaxationem, the Defendant agreavit, yet this Plea is good, because the Estate passeth to him upon the execution of the Deed.  
It may be a Question, whether the actual assent must be at the very time that the Surrender was made; for if it should be afterwards, 'tis well enough, and the Estate remaineth in the Surrendree, till disagreement.  
Presumption stands on this side, for it shall never be intended that he did not give his Assent, but on the contrary, because 'tis for his benefit not to refuse an Estate.  
Therefore where a Feme Sole had a Lease and married, 
Hob. 203.  the Husband and Wife surrendered it to another in consideration of a new Lease to be granted to the Wife and her Sons, etc. this Estate vests immediately in her, tho' a Feme Covert, and that without the assent of her Husband, for the Law intends it to be her Estate till he descent; 'tis true, in that Case his assent was held necessary, because the first Lease could not be divested out of him, without his own consent.  
So a Feoffment to three, 
2 Leon. 224.  and Livery made to one, the Freehold is in all till disagreement.  
So if a Bond be given to a Stranger for my use, and I should die before I had agreed to it, my Executors are entitled to an Action of Debt, and will recover.  
A Feme Covert and another were joint-tenants for Life; 
1 Rol. Rep. 401, 441.  she and her Husband made a Lease for years of her moiety, reserving a Rent, during her Life, and the Life of her partner, than the Wife died: this was held to be a good Lease against the surviving joint-tenant till disagreement, which shows that the agreement of the Parties is not so much requisite to perfect a Conveyance of this nature, as a disagreement is to make it void.  
And this may serve as an answer to the second point, which was not much insisted on, that men's Titles would be incertain and precarious if after the assent of the Surrendree, the Estate should pass by Relation, at the very time that the Deed was executed, and that it was not known where the  was in the mean time, for if he had agreed to it immediately, it had been altogether as private.  
Then as to the Plead, 'tis true, that generally when a Surrender is pleaded, 'tis said, ad quam quidem sursum redditionem, the Party adtunc & ibidem agreavit, which implies that the Surrendree was then present; and in such Case he ought to agree or refuse. Besides those Actions to which an Agreement is thus pleaded were generally brought in disaffirmance of Surrenders, and to support the Leases; upon which the Plaintiffs declared, and then the proper and most effectual Bar was to show a Surrender and express Agreement before the Action brought.  
It might have been insufficient pleading not to show an Acceptance of the Surrendree, but 'tis not substance; for if Issue should be taken, whether a Surrender or not, 
Cro. Eliz. 249.  and a Verdict for the Plaintiff, that defect of setting forth an Acceptance is aided by the Statute of jeofails.  
In this Case there is not only the Word Surrender but * Grant and Release which may be pleaded without any consent to it, and a Grant by operation of Law turns to a Surrender, because a Man cannot have two Estates of equal dignity in the Law at the same time.  
Neither can it be said that there remained any Estate in Simon Leach after this Surrender executed; for 'tis an absurd thing to imagine that when he had done what was in his power to complete a Conveyance, and to divest himself of an Estate, yet it should continue in him.  
Therefore the Remainder in Contingency to the Lessor of the Plaintiff was destroyed by this Surrender of the Estate to him in reversion, for by that means when it did afterwards happen there was no particular Estate to support it.  
But notwithstanding the judgement was affirmed, and afterwards Anno quarto Gulielmi & Mariae upon a Writ of Error brought in the House of Lords it was reversed.   

Idem versus Eundem.  
THIS Point having received a legal determination the same Plaintiff brought another Action of Trespass and Ejectment against the same Defendant; 
Surrender by a person Non compos is void.  and at a Trial at the Bar in Easter Term nono Gulielmi Regis another special Verdict was found, upon which the Case more at large was, viz.  
That Nicholas Leach being seized in Fee of the Lands in question made his Will in these Words, viz.  
In the Name of God, Amen, etc. I devise my Manors of Bulkworth, Whitebear and Vadacot in Devonshire, and Cresby Goat and Cresby Grange in Northallerton in Yorkshire unto the Heirs Males of my Body begotten, and for want of such Issue Male, I devise the same unto my Brother Simon Leach for Life, and after his decease to the first Son of the Body of the said Simon Leach, my Brother lawfully to be begotten, and to the Heirs Males of the Body of such first Son lawfully to be begotten, with like Remainder in Tail Male to the second, third, fourth, etc. Sons; and for default of such Issue to Sir Simon Leach, my Kinsman, being Son and Heir of Simon Leach of Cadley in the County of Devon ' Esquire deceased, and to the Heirs Males of his Body lawfully to be begotten; and for default of such Issue to the right Heirs of me the said Nicholas Leach for ever.  
They find that Nicholas Leach died without Issue; that Simon Leach his Brother and Heir with Remainder over in Contingency as aforesaid entered, and afterwards married Anne, the Daughter of Unton Croke, and that after the said Marriage, viz. 20 August 25 Car. 2. he executed a Deed purporting a 
* Two months before a Son was born.  Surrender of the said Lands and Tenements to Sir Simon Leach in manner following, viz.  
To all Christian People, etc. I Simon Leach of Elsefield in the County of Oxon Esquire send greeting, Know ye that I the said Simon Leach for divers good Causes and valuable Considerations me hereunto moving, have granted, surrendered, remised, released and for ever quit claimed and confirmed, and by these Presents do grant, surrender, remise, release and for ever quit claim and confirm unto Sir Simon Leach of Cadley in the County of Devon, Knight of the Bath, and his Heirs and Assigns for ever, all and every the Manors, etc. To have and to hold the same to the said Sir Simon Leach for ever.  
They find that Simon Leach, Brother of the Testator, was not compos mentis at the time of the sealing and delivery of the said Surrender.  
That on the 10th day of November 25 Car. 2. (which was two Months after this Surrender made) the said Simon Leach had Issue of his Body Charles Leach, who is his Son and Heir; that he after the death of his Father entered and made a Lease to Tompson, by virtue whereof he was possessed until the Defendant, Sir Simon Leach entered upon him, etc.  
Two Questions were made upon this Special Verdict.  
1. Whether this Surrender by a person Non compos mentis, was void ab initio and so could pass no Estate to the Surrendree; for if so, then though the Idiot himself is estopped by his own Act, yet that can be no Bar to him in the Remainder, because the Act being void the Estate in Law still remains in him.  
2. If it is not void in its self, then whether it is voidable after the death of the Party by Charles Leach, he claiming by virtue of a collateral Remainder, and not as Heir at Law to the Devisor.  
As to the first Point it was argued, that the Cases of Lunatics and Infants go hand in hand, and that the same Reasons govern both; that the Law is clear that a Surrender made by an Infant is void; therefore a Surrender made by a person Non compos mentis is also void; 
Fleta lib. 1. c. 11. num. 10.  the reason is because they know not how to govern themselves. And as Fleta saith, Semper judicabuntur infra aetatem; 
F.N.B. 202. a. Regist. 238. b.  if he makes any Conveyance of his Land the Law hath provided a remedial Writ even for himself to avoid his own Alienation.  
His Feoffments are void, 
39 H. 6.42. Bract. fol. 12. no. 5. fol. 100, 120. Brit. cap. 34. fol. 88 Perk. 5. pl. 21.  and if Warranties are annexed those they are also void; if he granteth a Rent-Charge out of his Land that is likewise void; and if the Grantee should distrain for this Rent after the death of the Grantor his Heir shall have an Action of Trespass against him, and therefore by parity of Reason this Surrender must be void.  
In Fitzherbert Tit. Grantee pl. 80. there is a Case to this purpose, viz. An Assize was brought against the Tenant supposing that he had no right of Entry unless under a Disseisor by whom the Brother of the Demandant was disseised.  
The Tenant pleaded that the supposed Disseisor was the Father of the Demandant, whose Heir he then was, and that his said Father made a Feoffment of the Land to the Tenant with Warranty, and demanded judgement, etc.  
The Demandant replied, that his Father at that time was Non compos mentis, and the Tenant was compelled to rejoin and take Issue upon the Insanity, which shows that if he was Non compos he could not have made such a Feoffment.  
So if he maketh a Feoffment in Fee and afterwards taketh back an Estate for Life, 
Fitz. Remitter pl. 23.  the Non compos shall be remitted to his ancient Title, which shows likewise that such Feoffment was void, for the Remitter supposeth a former Right.  
'Tis incongruous to say, that Acts done by persons of no discretion shall be good and valid in the Law, such are Infants and Lunatics; and it stands with great reason that what they do should be void, especially, when it goes to the destruction of their Estates.  
Therefore 'tis held, that if a person Non compos releaseth his right that shall not bar the King in his Life time, but he shall seize the Land; and if he die, his Heir may bring the Writ Dum non fuit compos mentis, and may enter.  
'Tis for this reason that a Release made by an Infant Executor is no bar, because it works in destruction of his Interest; 
5 Co. 27. Russel 's Case. 34 Ass. pl. 10.  the reason is the same where a person Non compos maketh a Feoffment, for that likewise destroys his Estate.  
So likewise an Infant can neither surrender a future Interest by his acceptance of a new Lease, 
Cro. Car. 502.  nor make an absolute Surrender of a Term of which he is possessed, for such a Surrender by Deed is void.  
'Tis agreed, that if a Man Non compos maketh a Feoffment by Letter of Attorney 'tis merely void, because 'tis not delivered to the Feoffee by the hands of the Feoffor; but 'tis said that if it be delivered by him in person then 'tis only voidable at any time by Action or Entry: 
Finch 's Law. 102.  And of this Opinion was Sir Henry Finch in his Discourse of the Law, who in the Margin of his Book quotes several Authorities in the Year Books to justify this Opinion; and amongst the rest he citys Sir Anthony fitzherbert's Natura Brevium, 
35 Ass. pl. 10.  who taking notice of the old Authorities seems to reject their Reasons, who affirm a person Non compos shall not avoid his own Act when he recovers his memory, because he cannot then tell what he did when he was in his former Condition.  
But certainly when he recovers his judgement, he is then of Ability to consider what was done during his Insanity, and to avoid such Acts by showing how his indisposition came by the visitation of God, by which he was disabled for a time to do any reasonable thing whatsoever; and this may be as well done as to plead duress from Men which the Law allows to make compulsary Acts void.  
My Lord Coke in Beverly's Case taking notice of the great reason of the Civil Law in Cases of this nature, 
4 Co. 123.  which maketh all Acts done by Idiots void without their Curator's concurrence; and that it was objected as a defect in the Common Law, that Tutors were not assigned to such persons; he answereth, that our Law hath given the custody both of them and their Lands to the King, which is directly contrary to his own Opinion in his 2d. Institutes, 
2 Inst. 14.  where paraphrasing upon the fourth Chapter of Magna Charta, which prohibits Waste in the Land of Wards, from thence he infers that at that time the King had no Prerogative to entitle him to the Lands of Idiots, for if he had, that Act would have as well provided against Waste in their Lands as in those of Wards: He farther adds that the Guardianship of Idiots did belong to the Lords according to the course of the Common Law.  
Be it how it will, 'tis clear by all the Books that both by the Common and Civil Law their Acts are void; and my Lord Coke esteemed it as a very unreasonable thing that they should not be avoided even during the life of the Party himself; but it was never yet denied that they may be avoided after his death by his Heir or Executor, and by parity of reason the Law will prevent Strangers from being prejudiced by such Acts.  
There is an Objection, that some Acts done by Idiots are unavoidable, as Fines levied by them, etc.  
'Tis true, such are not to be avoided, not because they are good in themselves, but the reason is, because they are upon Record, against which the Law will not suffer any Averment to be made, presuming that the Courts and judges in Westminster-Hall would not admit an Idiot or Infant to levy a Fine.  
This being therefore a void Surrender by a person Non compos the Estate is still in the Surrenderor, and so the contingent Remainder upon his death is well attached in Charles Leach the Lessor of the Plaintiff.  
But supposing 'tis not void, yet there will be scintilla juris left in Simon Leach to support the Contingency; and to prove this the Case of Lloyd and Brookin was relied on, which was this, viz. Thomas Bradshaw was Tenant for Life, 
1 Mod. 92. 1 Vent. 188. 2 Keb. 881.  the Remainder in Tail to his first Son, etc. the Remainder to Paul for Life, the Remainder to his first, second and third Sons in Tail.  
Thomas accepted a Fine from Paul, who had then a Son born, than he made a Feoffment, and afterwards Paul had another Son born.  
His eldest Son died without Issue, and it was adjudged that the contingent Remainder to his second Son was not destroyed by this Feoffment, because it was preserved by the right of Entry, which his elder Brother had at the time it was made.  
2. If this Surrender, is only voidable then whether Charles Leach claiming by a collateral Title can avoid it?  
It was argued that he may, for it would be absurd, that he should have a Right to the Remainder, and yet have no Remedy to recover it.  
My Lord Coke in Beverly's Case tells us that there are four sorts of Privities.  
1. In Blood, as Heir.  
2. In Representation, as Executor.  
3. In Estate, as Donee in Tail, the Reversion or Remainder in Fee.  
4. In Tenure, as Lord by Escheat.  
He affirms that the two first may show the Disability of their Ancestor and Testator, and avoid their Grants.  
'Tis true, in the third Article he is of Opinion that Privies in Estate shall not avoid the Acts of their Ancestors, and he puts the Case of a Donee in Tail making a Feoffment in Fee within age, and dying without Issue, the Donor shall not enter, because no Right did accrue to him by the death of the Donee, there being only a Privity of Estate between them.  
But this Opinion is denied to be Law by justice Dodderidge in his Argument of the Case between Jackson and Darcy, 
Palm. 254.  who said that the Donor might enter, because otherwise he would be without remedy, for he could not maintain a Formedon, because the Feoffment made by the Infant was no Discontinuance.  
Besides, 'tis not possible there should be any Privity in Blood between the Donee in Tail and the Reversioner in Fee, so that Article must be intended where they are Strangers in Blood and Privies in Estate, which doth not at all concern the Case in question, because William Leach is privy in Blood to his Father, who made the Surrender; and my Lord Coke tells us in the first Article of his distinction, that such a Privy may avoid the Acts of his Ancestor.  
It may be objected that this distinction was not then the judgement of the Court; for it was not material to the Point in Issue, which was no more than thus, viz.  
Snow gave Bond to Beverley, and exhibited his Bill in the Court of Requests to be relieved against it, because at the time of the sealing and delivery thereof he was Non compos mentis.  
But the like distinction was made in Whittingham 's Case many years afterwards, 
8 Co. 42.  which was thus, viz.  
Whittingham being seized of Lands held of the Queen in Soccage devised the same to Prudence, his Bastard Child and her Heirs, she during her Infancy made a Feoffment thereof to another, and died in her Nonage without Issue; the Question than was, whether that Feoffment should prevent the Queen of the Escheat? And adjudged it should not.  
In which Case it was held that Privies in Blood inheritable shall take advantage of the disabilities of their Ancestors, as if an Infant who is seized in Fee maketh a Feoffment and afterwards dieth, his Heir may enter and avoid it.  
The Law is the same in the Case of one Non compos mentis, as in that of an Infant, as to the avoiding of the Acts of their Ancestors; so that Mr. Leach being privy in Blood according to my Lord Coke's Opinion in those Cases shall avoid the Acts of his Father, he being Non compos at the executing of this Surrender.  
If it should be objected, that this part of the distinction ought to be taken restrictively, and must be tied up to such an Heir at Law, who takes an immediate possession by descent from his Ancestor; the Answer is, that if this Surrender is avoided Mr. Leach will take by immediate descent from his Father; for though nothing but a Reversion in Fee descended to him, yet he is a complete Heir.  
But after all, this distinction made by my Lord Coke is founded upon no manner of Authority; 'tis only his extrajudicial Opinion; for there is no reason to be given why Privies in Estate should not avoid such Acts done by their Ancestors as well as Privies in Blood, because the Incapacity of the Grantor goes to both.  
Those who argued on the other side held that the Acts of Infants and persons non compos were not void in themselves but only voidable. 
E contra.   
'Tis true, some Deeds made by an Infant are void not merely, 
Cro. Car. 502.  because executed by him, for some are good, and those only are void which are made to his prejudice.  
Such also are void which give Authority to a third person to do an Act; as if an Infant enter into a Bond, 
Perk. Sect. 139. March. 141.  and give it to a Stranger to deliver to the Obligee, when he shall attain his full Age, this is void, because the person derived his Authority from an Infant who by reason of his Nonage could not give such a Power; but if the Infant himself had delivered the Bond to the Obligee it had been only voidable. 
Lit. Sect. 259.   
The Father of the Demandant was an Infant when he sold his Estate, 
46 E. 3.34.  his Son brought the Writ Dum fuit infra-aetatem against the Alienee, and it was held good, which would not have been allowed if the Grant had been void.  
All the old Authorities prove that the Acts of Infants and Idiots are not void but voidable.  
If an Infant is bound in an Obligation 'tis not void, 
Cro. Eliz. 127. 2 Inst. 483.  for he may agree to it when of Age; he cannot plead Non est factum, and he may refuse to plead his Infancy.  
If he be entitled to a Term for years, 
Cro. Eliz. 126. Cro. Car. 502.  and maketh a Surrender by the acceptance of a new Lease, 'tis good if 'tis for his advantage, either by the lessening of the Rent or the increasing of the Term; but if he hath no benefit by it 'tis voidable only.  
So he may purchase Lands, because the Law intends it for his benefit, and he can receive no damage by such a Purchase, for he may either perfect or avoid it at his full Age, which shows that such Acts are not voidable ab intio, but only voidable as the Case shall require.  
The Statute of 23 H. 6. Enacts, 
23 H. 6. c. 10.  That Sheriffs shall take no Bonds upon an Arrest, but for the Appearance of the Party, and to themselves only, and that a Bond otherwise taken colore officii shall be void (that is) not in its self, but by pleading the Statute, for 'tis not to be avoided by pleading Non est factum.  
So upon the Statute of Additions, 
1 H. 5. c. 5. 3 Co. 59 a.  where a Man is outlawed without the addition of his condition or place of abode in the original Writ, such Outlawry shall be void, not of its self, but it may be avoided by Writ of Error,  
In like manner there are many Authorities to prove that the Acts of a person non compos are not void, but voidable.  
So is the first Resolution in Beverly 's Case, that a Deed or Feoffment made by him is to be avoided by any other person, but not by himself.  
Thus stood the Law in the time of E. 
35 Ass. pl. 10.  3. For in an Assize the Defendant pleaded that the Plaintiff had released to him by Deed, who replied that at the time of the making of the Deed, he was Non compos. The Court of Common Pleas seemed then to be of Opinion that the Replication was not good, which shows that the Deed in its self was not void; 'tis true, the Assize was then adjourned, because that Opinion was directly against the Register, which is, that the Writ of Dum non fuit compos may be brought by the person himself notwithstanding his own Alienation.  
But this hath since been denied to be Law; 
Cro. Eliz. 398.  for in Debt upon Bond the Defendant pleaded that he was Non compos; and upon a Demurrer the Plea was overruled.  
And of this Opinion was Sir William Herle Chief justice of the Common Pleas in 5 E. 
5 E. 3.70.  3. which was long before the Book of Assize.  
So the Law continued till the Reign of H. 
35 H. 6. f. 42.  6. viz. that the person himself could not avoid his own Feoffment either by Entry or Action.  
The Writs de Ideota inquirendo and Dum non fuit compos import the same thing, viz. that Acts done by them are not void, for the first recites that the Idiot alienavit; and the other, that the Lunatic 
* Dimisit is there intended where the Estate is conveyed by Livery or for life, and Alienavit is a Conveyance by Feoffment. 17 E. 2. Stamf. Praerog. 34.  Dimisit terras. Now if their Acts had been void ab initio, than they cannot be supposed either to alien or lease their Lands which shows that such Acts are only voidable.  
And as a farther Argument to enforce this, the Statute de Praerogativa Regis was mentioned, which gives the Custody of the Idiots Lands to the King during their Lives, provided that afterwards it be given to their right Heirs ita quod nullatenus per eofdem fatuos alienetur. Now to what purpose were these Words added if such an Alienation was void in itself?  
Besides, the Cases of Idiots (mentioned on the other side) and Lunatics are not parellel; for an Idiot hath a different incapacity from one Non compos; 'tis perpetual in an Idiot; and for that reason the Law gives the King an Interest in him.  
But a person non compos may recover his Senses, 
Co. Lit. 2. b. Fitz. tit. Issue 53.  he may purchase Lands, may grant a Rent-charge out of his Estate, and shall not plead his insanity to defeat his own act.  
If therefore this Surrender was not void at the time of the execution thereof, but voidable only during the Life of the Surrenderor by office found; then the Question cannot properly be, whether the Lessor of the Plaintiff shall avoid it, for that would be to revest the Estate in some body; but the Surrender was good, and the Estate for Life was utterly determined, so that nothing being left to support the contingent Remainders, those are also destroyed.  
And to prove this Chudleigh 's, Case was relied on, which was; 
Co. 120.  Sir R. C. was seized in Fee of the Manor of Hescot in Devon, and having Issue Christopher, and three other Sons, made a Feoffment to the use of himself and his Heirs, on the Body of Mary, than the Wife of Mr. Carew, to be begotten, and for default of such Issue, then to the use of his last Will, etc. for ten years, and after the Expiration of that Term, then to his Feoffees and their Heirs, during the Life of Christopher; Remainder to the Issue Male of Christopher in Tail, with like Remainder to his other Sons, Remainder to his own right Heirs.  
He died without Issue by Mrs. Carew.  
But before Christopher had any Son born, the said Feoffees made a Feoffment of the Land in Fee, without any consideration; afterwards Christopher had Issue two Sons.  
Now the Uses limited by the Feoffment of Sir R. C. being only contingent to the Sons of Christopher, and they not being born when the second Feoffment was made to their Father; the Question now was, whether they shall be destroyed by that Feoffment, before the Sons had a Being in Nature, or whether they shall arise out of the Estate of the Feoffees after their Births?  
And it was adjudged in the Exchequer- Chamber, that the last Feoffment had divested all the precedent Estates, and likewise the Uses whilst they were contingent, and before they had an existence; and that if the Estate for Life which Christopher had in those Lands had been determined by his death, before the birth of any Son, the future Remainder had been void, because it did not vest whilst the particular Estate had a being, or eo instanti that it determined.  
So in this Case Mr. Leach cannot have any future Right of Entry, for he was not born when the Surrender was made, so that the contingency is for ever gone.  
Suppose a Feoffment in Fee, to the use of himself and his Wife, and to the Heirs of the Survivor.  
The Husband afterwards makes another Feoffment of the same Lands, 
Cro. Car. 102.  and dies, and the Wife enters, the Fee shall not vest in her, by this Entry, for she had no right, the Husband has destroyed the contingent use by the last Feoffment, so that it could not accrue to her at the time of his death.  
Nay, tho' the particular Estate in some Cases may revive, yet if the contingency be once destroyed, it shall never arise again.  
As where the Testator being seized in Fee of Houses, 
2 Sand. 380.  devised the inheritance thereof to such Son his Wife should have (after her Life) if she baptised him by his Christian and Surname, and if such Son die before he attain the Age of 21 years, then to the right Heirs of the Devisor.  
He died without Issue, the Widow married again, than the Brother and Heir of the Testator, before the birth of any Son, conveyed the Houses thus: Viz.  
To the Husband and Wife, and to their Heirs, and levied a Fine to those uses.  
Afterwards she had a Son baptised by the Testator's Christian and Surname.  
Then the Husband and Wife sold the Houses to one Weston and his Heirs, and levied a Fine to those Uses.  
It was adjudged that by the Conveyance of the Reversion by the Brother and Heir of the Testator to the Baron and Feme, before the Birth of the Son, her Estate for Life was merged; and tho' by reason of her Coverture she might waive the Joint-tenancy, 
2 Roll. Abr. 796. Wigg versus Villiers.  and reassume the Estate for Life, yet that being once merged, the contingent Remainders are all destroyed.  
Curia. 
Cro. Car. 502.  The Grants of Infants, and of persons non compos, are parallel both in Law and Reason, and there are express Authorities that a Surrender made by an Infant is void, therefore this Surrender by a person non compos, is likewise void.  
If an Infant grants a Rent-charge out of his Estate, 'tis not voidable, but ipso facto void; for if the Grantee should distrain for the Rent, the Infant may have an Action of Trespass against him.  
In all these Cases which have been cited, where 'tis held that the Deeds of Infants are not void but voidable, the meaning is, that non est factum cannot be pleaded, because they have the form, though not the Operations of Deeds, and therefore are not void upon that account, without showing some special matter to make them of no efficacy.  
Therefore if an Infant maketh a Letter of Attorney though 'tis void in itself, yet it shall not be avoided by pleading non est factum, but by showing his Infancy.  
Some have endeavoured to distinguish between a Deed, which giveth only authority to do a thing, and such which conveys an interest by the delivery of the Deed itself, that the first is void, and the other voidable.  
But the reason is the same to make them both void only where a Feoffment is made by an Infant 'tis voidable, because of the solemnity of the Conveyance.  
Now if Simon Leach had made a Feoffment in Fee, there had still remained in him such a Right which would have supported this Remainder in Contingency.  
This Surrender is therefore void, and all persons may take advantage of it.  
Afterwards a Writ of Error was brought to reverse this judgement in the House of Lords, but it was affirmed. 
Cases Adj. 150.    

Hall versus Wybank.  
THE Statute of Limitations is, 
Statute of Limitations whether it extendeth to the Defendant being beyond Sea six years. 21 Jac. cap. 16.  that if any person be entitled to an Action, and shall be an Infant, Feme Covert, Imprisoned, or beyond Sea, that then he shall bring the Action at full Age, Discovert, of save Memory, at large, and returned from beyond Sea.  
The Plaintiff brought an Indebitatus Assumpsit, to which the Defendant pleaded non assumpsit infra sex Annos.  
The Plaintiff replied that the Defendant was all that time beyond Sea, so that he could not prosecute any Writ against him, etc.  
And upon a Demurrer Serjeant Tremaine argued that the Plaintiff was not barred by the Statute which was made to prevent Suits, by limiting personal Actions to be brought within a certain time, and it cannot be extended in favour of the Defendant, who was a Debtor and beyond Sea, because 'tis incertain whether he will return or not; and therefore there is no occasion to begin a Suit till his return.  
'Tis true, the Plaintiff may file an Original, and Outlaw the Defendant, and so seize his Estate, but no Man is compelled by Law to do an act which is fruitless when 'tis done, and such this would be, for if the Plaintiff should file an Original, 'tis probable the Defendant may never return, and then if the Debt was 1000 l. or upwards, he would be at a great Expense to no purpose, or if the Party should return, he may reverse it by Error.  
'Tis a new way invented for the payment of Debts, for if the Debtors go beyond Sea and stay there six years, their Debts would by this means be all paid.  
The words of the Statute do not extend to this Case, for the Proviso is, That if the Plaintiff be beyond Sea when the cause of Action doth accrue, 
Cro. Car. 246. 333.  that then he have shall liberty to continue it at his return; yet 'tis within the equity of Law for him to bring his Action when the Defendant returns, who cannot be sued till then.  
That Statutes have been expounded according to Equity, is not now a new Position; 
2 Roll. Rep. 318.  for Constructions have been made according to the sense and meaning, and not according to the Letter of many Statutes.  
As the Statute of Westm. 
W. 2. c. 11.  2. which gives an Action of Debt against a Gaoler for an Escape, and that per breve, yet by the Equity thereof it hath been adjudged that a Bill of Debt will lie.  
For the Statute of R. 
1 R. 2. c. 12.  2. gives the like Action against the Warden of the Fleet, for the Escape of a Prisoner in Execution, which by Construction hath been adjudged to extend to all Gaolers and Sheriffs. 
1 Sand. 38.   
If this Statute should not be expounded according to Equity, then if the Plaintiff himself should be beyond Sea six years after the cause of Action, and die there, his Executor or Administrator cannot sue for a Debt.  
Curia. This Case is out of the Equity of the Statute, which provides a remedy when the Plaintiff is beyond Sea, but not when the Defendant is there, it was never intended to make any Provision for him, since the Plaintiff might file an Original, and sue him to the Outlawry.  
But justice Dolben making some doubt. Adjornarur.    

DE Term. Sancti Mich. Anno 2 Gulielmi & Mariae Regis & Reginae, in Banco Regis, 1690.  

Hobbs, qui tam, etc. versus Young.  
AN Information was brought upon the Statute of the 5th of Eliz. for exercising the Trade of a Clothworker, 
Employing Workmen in a Mans own House, he being not Apprentice to the Trade, is an exercising that Trade within the Statute. 5 Eliz. 4.  not being an Apprentice to the same, and likewise for setting people to work at that Trade, not having served an Apprenticeship to it.  
Upon Not Guilty pleaded, the jury found a special Verdict to this purpose, Viz.  
That the Defendant was a Merchant, who Exported Cloth to Turkey, and that for the space of a Month, he had employed Men in his House, in the Trade of a Cloath-Worker, which Men had been educated in the said Mystery for the space of 7 years, that he provided Materials for them, and paid them weekly Wages, but that he himself was not an Apprentice to the said Trade.  
That it was a Trade at the time of the making of the Statute, etc.  
The Question was, Whether this should be accounted exercising of a Trade within the meaning of the Statute or no?  
Those who argued for the Plaintiff said, that true it is, any Man might exercise what Trade he thought fit at the Common Law, but this confusion had been remedied by several Statutes.  
The first is the Statute of Edw. 3. 
37 E. 3. c. 5.  that Merchants shall not engross Goods to enhance the Prices, nor use but one sort of Merchandise.  
Afterwards in the 38th of Edw. 3. 
38 E. 3. c. 2.  the former Statute was repealed, and liberty given to Merchants only to use what Merchandise they would.  
Then comes the Statute of Queen Elizabeth, and the Remedies intended by that and the former Acts were, Viz.  
1. The restraining of ignorant pretenders to Trade.  
2. To make a distinction of Trades, and to fit them to different ranks of Men.  
3. To encourage those who had undergone an Apprenticeship, by prohibiting others to exercise their Trades.  
The words of this latter Statute are, That no person, other than such who do now lawfully use or exercise any Art or Mystery, or Manual Occupation, shall exercise any Craft, Mystery, or Manual Occupation, now used within this Realm, except he shall be brought up therein seven years at the least, as an Apprentice, nor set any person on work in such Mystery, etc. being not a Workman at the time of making the Statute, except he shall have been an Apprentice, as aforesaid, or else having served as an Apprentice, shall become a Journy-Man, or hired by the Year, under the pain of 40 s. per Month.  
'Tis plain by this Law, that he who cannot use a Mystery himself, is prohibited to employ other Men in that Trade, for if this should be allowed, than the care which hath been taken to keep up Mysteries, by erecting Guilds and Fraternities, would signify little.  
In the Case of Morstyn and Nightingale, 3 Jac. 2. upon this Statute, it was proved that the Defendant employed none but Pinmakers, in that Trade; yet not having served an Apprenticeship himself, the Plaintiff had a Verdict.  
It was insisted on the Defendants behalf that as this Offence is laid in the Information, 
E contra.  it was not within the first branch of that Clause in the Statute; for no Man will say that when the Defendant sets other persons to work such employing them was an exercising the Trade within the first branch of that Paragraph.  
Neither is it within the second Branch, the meaning whereof is, that no person shall be employed but such as have served an Apprenticeship, etc.  
Now the person who sets such People to work is not punishable by this Law, but the Men themselves who do work not being qualified, and those are not punishable in this Case, because the Verdict hath found that they were Apprentices and had served seven years to the Trade.  
'Tis not material to say that the Men thus employed by the Defendant in this Trade are his Servants, and that by their working the Company of Clothworkers may be damnified, for the Act is not restrained to particular Companies, but taketh care in general that the work should be well done.  
No Man will say that a Merchant is within this Statute, for the Preamble itself shows 'tis for the Reformation of Trades and Manual Occupations; so that as a Merchant is not within the Letter, neither is he within the meaning of the Law, because he is of a superior Order and Degree of Men.  
The chief design therefore of this Law being that unskilful Men should not employ themselves in Trades, and the Defendant having set none to work but such who were of that Trade, and Artists in it, the meaning of the Act is fully pursued, and no injury is done to any person.  
Besides, it doth not appear by this Verdict that any thing was done by the Defendant but in his own Family, and probably it might be for their use, and then 'tis no offence.  
But if it is a Crime in the Defendant, than all the Petty-Chapmen in England are within this Statute, for they use several goods belonging to particular Trades, and few of them have been Apprentices to any Trade.  
It was said by some of the Council who now argued this Case, that they had formerly attended my Lord Hales upon the like matter, whose Opinion, was that such Petty Chapmen were not within the Statute, but that they were warranted by the Custom of those places where they lived.  
Afterwards in Trinity-Term 3 Gulielmi & Mariae, judgement was given for the Plaintiff by the Opinion of three judges.  
The Questions are two:  
1. Whether this is a setting up of a Trade within the express words of the Statute.  
2. Whether the working of these  in the Defendant's House will be using a Trade, etc.  
It cannot be denied but that at the Common Law a Man might exercise what Trade he would, therefore this Statute is penned in the Negative, to prevent many inconveniences which happened before the making of this Law.  
Some Authorities there are where Informations have been brought upon this Statute, 
Cro. Car. 347. 1 Sand. 312.  and the Defendants have pleaded the the Custom of London for a Man Educated in one Trade, to exercise another; and upon Demurrer such Pleas have been overruled; but reason in this Case is the best Authority.  
journeymen who work for Hire cannot be within the meaning of this Statute, but the Defendant by employing such, had an influence upon the Trade, and so 'tis found, viz. That he provided Materials, and paid the Workmen, and therefore he (and not the Master workman, who is but a journy-man) is the person who did exercise the Trade, not being an Apprentice; the management was for his Profit, the Workmen had no more but their Wages, and it would be very mischievous if the Statute should be otherwise construed.  
A Widow shall not exercise her Husband's Trade, 
Hutt. 132.  unless she is enabled by the Custom of the place; and possibly she might live so long with him as to be very skilful in it; but the Act being penned in the Negative must have a large construction, and therefore an Usage against it will not take away its force.  
Paying the Wages is as much as using the Trade himself; 'tis properly his driving the Trade by the Hands and Labour of his Servants: 
1 Jac. 1. c. 22.  And it seems plain by the Statute of 1 Jac. 1. that this may be done, for that Statute Enacts that no person using the Mystery of Tanning Leather by himself, or any other person, shall exercise the Craft of a Shoemaker, etc. which shows that the Trade may be carried on by Servants and Workmen.  
A Goldsmith never makes his own Plate, he only provides Materials for the Workmen, but yet he is a Trader within the Statute, because he makes profit of the Plate.  
An Innkeeper who sells Beer, Bread, etc. in his House is not within this Statute, because 'tis part of his Trade to provide such things for his Guests; but if he sells any quantities out of Doors, 
2 Bulst. 187.  he is then within the reach of this Law, which ought to have a very beneficial construction, because 'tis made to maintain skilful Men in Trades, which is for the public good of Mankind.  
2. 'Tis plain, that he who useth one Trade cannot exercise another, therefore a Coach-maker shall not make his own Whéels', if he doth, 'tis exercising the Trade of a Wheelright, and so of the Iron and Leather, and the other Materials which make up a Coach.  
In Mr. 
Noy 133. Hunter versus Moon.  Attorney Noy 's Reports, there is a Case of an Information brought upon this Statute against the Defendant being a Feltmaker, for dying of his own Hats, and it was adjudged for him that 'tis part of his Trade; but this is but a single Authority, and many have been against it since that time.  
At the Assizes in Cambridge the like Information was tried against a Comb-maker, for exercisng the Trade of a Horner; it was insisted on, that it was part of his Trade, for he fitted the Horn for his use in making of Combs; but there was a Verdict for the Plaintiff, for it was held to be an exercising of the Trade of an Horner; and the Council for the Defendant who were learned Men did acquiesce under that judgement.  
He who is a Servant, who undergoes no hazard, but is to have a certain reward for his labour doth not exercise a Trade, but 'tis the Master who emploies him, who hath all the Profit, and who in this Case sells at the same rate as if he paid the Clothworker.  
The Statute saith, That none who hath not served as an Apprentice in any Mystery, etc. shall use the same, etc. Now he who employs Men in his House useth the Trade, etc. For suppose a Merchant should hire journeymen Shoemakers to work in his House for the Plantations, this can be no other thing than the exercising of the Trade of a Shoemaker.  
Private usage is not within the meaning of this Law, but if what is done be for profit and gain, and not confined to a particular Family, 'tis an exercising of a Trade within the intention of this Statute.  
If the Defendant had sold these  in England he had been a Draper, and having exported them he is a Merchant: Wherefore for these Reason's judgement was given for the Plaintiff.  
But justice Dolbin was of another Opinion, he said that no encouragement was ever given to Prosecutions upon this Statute, and that it would be for the common good if it was repealed, for no greater punishment can be to the Seller than to expose Goods to Sale ill wrought, for by such means he will never sell more.  
In this Case there is no inconvenience to the Company of Clothworkers, because that Trade is a manual Occupation for hire; the Master Workman is the person who useth the Trade, and the Defendant hath done nothing but what is the proper work of a Merchant in his own House which cannot be a public use of the Trade.  
The intent of the making of this Statute was to prevent Idleness, and that there might be generally a good Manufacture. Now the Defendant hath well answered both these ends, for he hath employed Men in the working, and not only so, but such Men who were bound Apprentices and served seven years in that very Trade, such who could work well and to whom he gave good Wages.  
'Tis the interest of a Merchant that his Cloth be well wrought, but the Clothworker careth not how 'tis done so he hath his Wages; and by this care and industry of the Defendant that Trade which was almost lost abroad is, now come into Reputation again.   

Bradburn versus Kennerdale.  
Mich. 4 Jac. Rot. 640.  
ERror to reverse a judgement in an inferior Court at Chester in Replevin for the taking of a Cow. 
Replication, whether good without a Traverse.   
The Defendant made Cognizance as Bailiff to Sir Peter Warburton, setting forth that before the taking, etc. Sir Peter was seized in Fee of the Manor of Arkey, of which the locus in quo was parcel, and for that the Cow was there Damage Feasant he took it, etc.  
The Plaintiff in bar to the Avowry confesseth, That Sir Peter Warburton was seized in Fee, etc. but that before that time Sir George Warburton, his Father, was seized of the said Manor, and likewise of one Mesuage in Fee, etc. and being so seized made a Lease thereof for three Lives, viz. for the Life of G. H. the Father, and for the Lives of his two Sons, George and John, & alterius eorum diutius viventis; that one of them was dead, and that the other entered and was seized as Occupant and let the Land to the Plaintiff until, etc. Et hoc paratus est verificare.  
The Defendant demurred to this Replication and had judgement.  
The Matter now in Debate was upon Exceptions to the Barr.  
1. For want of a Traverse that Sir Peter Werburton was seized in Fee at the time of the taking. etc.  
2. For want of a sufficient Title alleged in the Plaintiff, for that by the Statue of Frauds all Occupancy is now taken away.  
It was argued that the Replication was good without a Traverse, 
Co. Ent. 504.  for where the Plaintiff hath confessed and avoided, as he hath done here; if he had traversed likewise, that would have made his Replication double.  
He confesseth that Sir P. W. was seized in Fee of the Manor, but afterwards the Seisin was expressly alleged to be in Sir George the Father, and that the place where was parcel thereof, which is a Confession and an Avoidance.  
The Avowant should have traversed this Lease, but the Traverse of the Plaintiff upon him had made it a worse Issue.  
Agreeable to this Case in reason is that which was adjudged in this Court in Michaelmas-Term 10 Car. 1. It was in Trespass; 
Cro. Car. 384.  the Defendant pleaded that the locus in quo was the sole Freehold of John, etc. and justified by his Command.  
The Plaintiff replied that the Land was parcel of the Manor of Abbot's Anne, and that W. was seized in Fee, and levied a Fine to the use of himself and Wife for their Lives, the Remainder to E. for 100 years if he lived so long, who after the death of the Cognizors entered and made a Lease to the Plaintiff.  
And upon a Demurrer to this Replication the same Exception was then taken as now, viz. that the Plaintiff did not confess and avoid the Freehold of John; but the Plaintiff had judgement, for the Bar being at large and the Title in the Replication being likewise so too, the Plaintiff may claim by a Lease for years without answering the Freehold.;  
The not concluding with a Traverse is but a form, and the Court will proceed according to the Right of the Cause without such form; 
27 Eliz. c. 5.  'tis a defect which after a joinder in Demurrer is expressly helped by the Statute of jeofails, which enables the Court to amend defects and want of Forms other than such for which the party hath demurred.  
The Case of Edward's and Woodden is in point, 
Cro. Car. 323. 6 Co. Heyley 's Case. Dyer 171. b. 1 Leon. 77, 78. contra.  it was in Replevin; the Defendant made Cognizance as Bailiff to Cotton, for that the place where, etc. was so many Acres parcel of a Manor, etc. that Bing was seized thereof in Fee, who granted a Rent Charge out of it to Sir Robert Heath in Fee, who sold it to Cotton, etc.  
The Plaintiff in Bar to the Conusance replied, and confessed that the Land was parcel of the Manor, etc. and that Bing was seized in Fee prout, etc. and granted the Rent to Sir R. H. but that long before the Seisin of Bing, etc. one Leigh was seized thereof in Fee, who devised it to Blunt for a Term of years, which Term by several Assignments came to Claxton, who gave the Plaintiff leave to put in his , etc.  
And upon a Demurrer to this Replication an Exception was taken to it, for that the Plaintiff did not show how the Seisin and Grant of Bing to Sir R. H. was avoided; for having confessed a Seisin in Fee prout, etc. that shall be intended a Fee in possession, and notwithstanding he had afterwards set forth a Lease for years in Leigh by whom it was devised to Blunt, etc. and so to Claxton, it may be intended that the Grantor was only seized in Fee of the Reversion, and therefore the Plaintiff ought to have traversed the Seisin aliter vel alio modo.  
But three judges seemed to incline that the Replication was good, and that the Plaintiff had well confessed and avoided that Seisin in Fee which was alleged by the Defendant, for he had showed a Lease for years precedent to the Defendants Title, and which was not chargeable with the Rent; and his pleading that the Grantor Bing was seized in Fee must be only of a Reversion expectant upon that Lease.  
But if his Confession that Being was seized in Fee prout, etc. shall be intended a Seisin in Fee in possession, yet the Replication is good in substance, because the Charge against the Plaintiff is avoided by a former Estate, and in such Case 'tis not necessary to take a Traverse.  
But after all it was held that if it be a defect, 'tis but want of a Form, which is aided by the Statute, and that is this very Case now in question.  
The want of a Traverse seldom makes a Plea ill in substance, but a naughty Traverse often makes it so, because the adversary is tied up to that which is material in itself, so that he cannot answer what is proper and material; and therefore in Ejectment upon a Lease made by E. I. 
Yelv. 151. Bedel versus Lull.  the Defendant pleaded that before E. I. had any thing to do, etc. M. I. was seized in Fee, after whose death the Land descended to his Heir, and that E. entered and was seized by Abatement.  
The Plaintiff replied and confessed the Seisin of M. but saith that he devised it in Fee to E. I. who entered, absque hoc that E. I. was seized by Abatement, and upon a Demurrer this was held to be an ill Traverse, for the Plaintiff had confessed the Seisin of M. and avoided it by the Devise, and therefore ought not to have traversed the Abatement, for having derived a good Title by the Devise to his Lessor, 'tis an Argument that he entered lawfully, and it was that alone which was issuable, and not the Abatement; therefore it was ill to traverse that, because it must never be taken but where the thing traversed is issuable.  
Then it was said that the Conusance was informal, because the Avowant should have said that the Locus in quo, etc. contains so many Acres of Ground, etc. he only saith that it was parcel of a Manor; besides, he neither prays Damages, nor return ' Habend '.  
2. As to the 2d Point it was said that the Statute of Frauds doth not take away all Occupancy, it only appoints who shall be a special Occupant.  
Besides, here is a Title within the Statute, for a Lease for Lives is personal Assets, so is a Term in the Hands of an Executor de son tort, and in this Case the entering of one Brother after the death of the other made him an Executor de son tort; 
More 126. Sid. 7.  and it was never yet doubted, but that there may be such an Executor of a Term. Whereupon it was concluded that the Bar was good, both as to the Form and Title set forth, but no judgement was then given.   

Boson versus Sandford.  
THE Plaintiff declared that the Defendant and seven other persons were Proprietors of a Vessel, 
Where there are several Proprietors of a Vessel, and Goods are damnified by carriage the Action must be brought against them all.  in which they used to carry Goods for a reasonable hire from Port to Port.  
That he had loaded the said Vessel with Board's which were agreed to be safely transported from London to Topsam, and that the Defendant by neglect suffered them to be damnified, etc.  
Upon Not-Guilty pleaded a special Verdict was found, the substance whereof was, viz.  
That the Plaintiff did load the Ship with Board's, of which Ship the Defendant and seven other persons were Proprietors; that the said Ship did usually carry Goods for hire; that the Plaintiff delivered the Goods to Daniel Hull, who was Master of the Vessel, and that they were loaded therein, but that none of the Proprietors were present.  
That there was no actual Contract between the Plaintiff and the Proprietors, or any Negligence in them, but the Board's were damnified by the neglect of the said Master, etc.  
The Questions upon this special Verdict were two:  
1. Whether this Action would lie against the Defendant alone as one of the Proprietors, or whether it must be brought against them all?  
2. If the Action ought to be brought against them all, then Not-Guilty was not a proper Plea, because the Defendant ought to have pleaded in Abatement that the rest of the Owners super se susceperunt simul cum the Defendant absque hoc quod he super se suscepit tantum.  
It was argued for the Plaintiff that the Action may be well brought against any single person of the Proprietors, because 'tis grounded upon a Tort as well as upon a Contract, which in this Case is only an Inducement to the Action, and therefore the Plaintiff hath liberty to bring it either the one way or the other, for 'tis both joint and several.  
So it is in Trover, where a Man declares that he was possessed of such Goods, that the Defendant found them and promised to deliver them, but converted them to his own use; the Contract is but juducement, for the cause of Action arises upon the Conversion.  
This is a remedy given by the construction of the Law, and if so, it must be certain and effectual to all intents; and therefore it hath been ruled in an Action brought against a common Carrier upon the Assumpsit in Law, 
Sid. 244.  and likewise upon the Tort, that the Declaration was ill, and though the Plaintiff had a Verdict, yet the judgement was arrested, because he had declared both ways.  
Agreeable to this was that judgement which was given upon the Statute of 2 Ed. 
Hutt. 121, 122.  3. for not setting out of Tithes in an Action of Debt brought against two Tenants in Common, it happened that one of them set out the Tithes and the other carried them away, and because the Action was brought against both it was held to be ill, for it lies only against him which did the wrong.  
2. If the Action ought to be brought against all, than the Defendant should have taken advantage of it by pleading, and to have showed who were the Proprietors with himself; for 'tis impossible for the Plaintiff to know who they are; and for this reason the Plea is not good.  
E contra. 
E contra.  The Plaintiff ought to have brought his Action either against the Master alone or all the Proprietors; 'tis true, if this had been only an Action of a simple Trespass he might have brought it against all or one; but this sounds not only in a Wrong, but 'tis in Breach of a Covenant or Duty, and so ought to be commenced against all of them as common Carriers.  
Now the great reason why all are liable to an Action is, because they all have a reward for the Hire of the Vessel; and it seems very unreasonable that one should bear the burden, and the rest run away with the profit.  
The principal Case in Hutton is an Authority directly to this purpose, though it was otherwise quoted by the Plaintiffs Council; it was Debt upon the Statute of Ed. 6. brought against one Lessee for not setting out of Tithes, and it appeared upon the Evidence that two were jointly possessed of the Term, and for that reason it was held that the Action would not lie against one alone.  
2. The Defendant ought not to have pleaded in Abatement that the rest of the Proprietors super se susceperunt simul cum the Defendant, etc. because such a Plea would not have been good here; for he shall never be compelled to plead in Abatement either in Debt or Contract, but in one single Case, and that is where two are bound jointly, and one is sued, he may plead in Abatement, 
5 Co. 119.  but cannot say Non est factum, for the Bond is his Deed since each of them have sealed it.  
Afterwards in Hillary-Term the Defendant had judgement, 
Judicium.  that the Action ought to be brought against all the Partowners', because they have all an equal benefit, and the ground of the Action is upon a Trust reposed in all, and every Trust supposeth a Contract; 
2 Cro. 202. Palm. 523.  and in all Cases grounded upon Contracts the Parties who are Privies must be joined in the Action.  
The Master of the Ship is no more than a Servant to the Owners, he hath no Property either general or special, but the Power he hath is given by the Civil Law.  
There are many Cases where the act of the Servant shall charge the Master; as for instance, viz.  
King Ed. 6. sold a quantity of Lead to Renagre, 
Dyer 161.  and appointed the Lord North, who was then Chancellor of his Court of Augmentations to take Bond for payment of the Mony.  
The Lord North appointed one Benger, who was his Clerk to take the Bond, which was done, who delivered it to the Lord, and he delivered it back again to his Clerk in order to send it to the Clerk of the Court of Augmentations.  
Benger suppressed this Bond, and it was the Opinion of all the judges of England, that the Lord North was chargeable to the King, because the possession of the Bond by his Servant and by his Order was his own possession.  
So where an Officer of the Customs made a Deputy, 
Dyer 238. b.  who concealed the Duties, and the Master being ignorant of the Concealment, certified the Customs of that part of the Revenue into the Exchequer upon Oath, he was adjudged to be answerable for this Concealment of his Servant.  
So where the Lessor was bound that the Lessee should quietly enjoy, and it was found that his Servant by his command, 
4 Leon. 123.  and he being present, entered, this was held to be a Breach of the Condition, for the Master was the principal Trespasser.  
Therefore though the Neglect in this Case was in the Servant the Action may be brought against all the Owners, for it is grounded quasi ex contractu, though there was no actual Agreement between the Plaintiff and them.  
And as to this purpose, 
2 Sand. 345. Hob. 206. Hutt. 121. 1 Mod. 198.  'tis like the Case where a Sheriff levies Goods upon an Execution which are rescued out of the hands of his Bailiffs; this appearing upon the return an Action of Debt will lie against him though there was no actual Contract between the Plaintiff and him; for he having taken the Goods in Execution there is quasi a Contract in Law to answer them to the Plaintiff.  
2. As to the second Point, it was ruled that Not-Guilty was a good Plea to any Misfeazance whatsoever, and that a Plea in Abatement, viz. that the rest of the Owners super se susceperunt simul cum Defendente absque hoc quod Defendens super se suscepit tantum had been no more than the general Issue, 
3 Cro. 554. Vering versus More.  but he hath not pleaded thus.  
justice Dolben agreed that the Action ought to be brought against all the Proprietors, it being upon a Promise created by Law; but he was Opinion that this Matter might have been pleaded in Abatement.   

Gold versus Strode.  
AN Action was brought in Somersetshire, and the Plaintiff recovered and had judgement and died Intestate.  
Gold, the now Plaintiff took out Letters of Administration to the said Intestate in the Court of the Bishop of Bath and Wells, and afterwards brought a Scire Facias upon that judgement against the Defendant to show Cause quare Executionem habere non debeat.  
He had judgement upon this Scire Facias, and the Defendant was taken in Execution and escaped.  
An Action of Debt was brought by the said Gold against this Defendant Strode, who was then Sheriff, for the Escape, and the Plaintiff had a Verdict.  
It was moved in arrest of judgement, and for Cause shown that if the Administration was void then all the dependencies upon it are void also, and so the Plaintiff can have no Title to this Action.  
Now the Administration is void, because the entering upon Record of the first judgement recovered by the Intestate in the County of Middlesex where the Records are kept, made him have bona notabilia in several Counties, and then by the Law Administration ought not to be committed to the Plaintiff in an inferior Diocese, but in the Prerogative Court.  
Curia. The Sheriff shall not take advantage of this since the judgement was given upon the Scire Fac. and the Capias ad satisfaciendum issuing out against the then Defendant, directed to the Sheriff, made him an Officer of this Court, and the judgement shall not be questioned by him; for admitting it to be a Recovery without a Title, yet he shall take no advantage of it, till the judgement is reversed.  
'Tis not a void but an erroneous judgement, and when a person is in execution upon such a judgement, and Escapes, and then an Action is brought against the Gaoler or Sheriff, 
8 Co. 141.  and judgement and Execution thereon, though the first judgement upon which the party was in execution should be afterwards reversed, yet the judgement against the Gaoler being upon a collateral thing executed shall still remain in force.  
The Ca Sa. 
21 E. 4. 23. b. Cro. El. 164. Moor 274. 2 Cro. 3. 1 Rol. Abr. 809 God b. 403. 2 Leon. 84.  was a sufficient authority to the Sheriff to take the Body, though grounded upon an erroneous judgement, and that Execution shall be good till avoided by Error, and no false Imprisonment will lie against the Gaoler or Sheriff upon such an Arrest.   

Coghil versus Freelove.  
In the Common-Pleas.  
DEBT for Rent was brought against the Defendant as Administratrix of Thomas Freelove her late Husband, deceased, 
Debt for Rent incurred after an assignment by an Administrator, for the privity of Contract is not determined by the death of the intestate. 2 Vent. 209.  in which Action the Plaintiff declared, That on the 1st of May, 21 Car. 2. he did by Indenture demise to the said Thomas Freelove, one Message and certain Lands in Bushey in Hertfordshire, Habendum from Lady- day than last passed, for and during the term of 21 years, under a yearly Rent; that by virtue thereof he entered and was possessed: That on the 7th of March 1685. the said Thomas Freelove died Intestate, and that the next day Administration of his Goods and Chattels was granted to the Defendant, and that 78 l. was in arrear for Rent due at such a time, for which this Action was now brought in the Detinet.  
The Defendant confessed the Lease prout, etc. and the death of the Intestate, and that the Administration was granted to her, but saith, that before the Rent was due, she by Articles made between her of the one part, and Samuel Freelove of the other part, did assign the said Indenture, and all her right, title, and interest thereunto, and which she had in the Premises, unto the said Samuel Freelove, who entered and was possessed; that the Plaintiff had notice of this Assignment before he brought this Action, but nothing was said of his acceptance.  
To this Plea the Plaintiff demurred, and the Defendant joined in Demurrer.  
And judgement was given, by the Opinion of the whole Court, for the Plaintiff, against the Authorities following.  
Viz. 
Cro. Eliz. 555.  'Tis true, in Overton and Sydal 's Case, it was resolved that if an Executor of Lessee for years assign his Interest, Debt for Rent will not lie against him, after such Assignment, the reason there given was, because the personal privity of the Contract is determined by the death of the Lessee, as to the Debt itself; and for the same reason the Executor shall not be liable to the Rent, after the death of the Lessee, if such Lessee doth make an assignment of his Term, in his life-time.  
My Lord Coke mentioning this Case, 
3 Co. 24. a.  in his third Report, affirms, that it was resolved by Popham Chief justice, and the whole Court, that if an Executor of a Lessee for years, assign his Interest, Debt will not lie against him for Rent due after such an Assignment; 
Pop. 120.  but my Lord Popham himself in Reporting that very Case, tells us he was of another Opinion, which was, that so long as the Covenant in the Lease hath the nature and essence of a Contract, it shall bind the Executor of the Lessee, who as well to that, as to many other purposes, represents the person of the Testator, and is privy to his Contracts.  
'tis true, my Lord Popham held in that Case, that the Action did not lie, but because it was brought by the Successor of a Prebendary, upon a Lease made by him in his life-time, who being a single Corporation, the personal Contract was determined by his death.  
But the same Case reported by others, 
Moor 251. Latch. 262.  is said not to be adjudged, for the Court was divided in Opinion.  
The Case of Marwood and Turpin is the same, 
Moor 600. Cro. Eliz. 715.  but there the Defendant pleaded the acceptance of the Rent after the assignment, which was not done here.  
Now if both those Cases should be admitted to be Law, 
Sid. 240, 266. Allen 34, 42. Palm. 118. Latch 260. Noy 97. 2 Cro. 334. Mooo 392.  and parallel with this, yet the later Resolutions have been quite contrary; for 'tis now held, and with great reason, that the privity of Contract of the Testator is not determined by his death, but that his Executor shall be charged with all his Contracts, so long as he hath Assets, and therefore such Executor shall not discharge himself by making of an Assignment, but shall still be liable for what Rent shall incur after he hath assigned his Interest; nay, if the Testator himself had assigned the term in his life-time, yet his Executor shall be charged in the Detinet, so long as he hath Assets.   

Newton versus Trigg.  
Mich. 1. Jac. Rot. 226.  
TRespass for breaking and entering of his Close, 
Statute of Bankrupts do not extend to an Inn-kepeer.  treading down of his Grass, etc. and taking away of his Goods.  
Upon not Guilty pleaded, a special Verdict was found, That the Plaintiff was an Innkeeper and a Freeman of the City of London, that he bought Oats, Hay, etc. which he sold in his Inu, by which he got his Living, that he with others built a Ship, and he had a Share therein, and a Stock of 50 l. to Trade withal; that he was indebted to several persons, and departed from his House, and absconded from his Creditors; that thereupon a Commission of Bankrupcy was taken out against him, at the Petition of the Creditors, that the Plaintiff was indebted to Trigg, and that the Commissioners found him to be a Bankrupt; and by Indenture bearing date the 25th day of June, made a Bargain and Sale of the Goods of Trigg, who did take and carry them away, etc.  
The Question was, whether upon the whole matter the Plaintiff was a Bankrupt or not?  
Sergeant Thomson argued, that he was not within any of the Statutes of Bankrupcy, for an Innkeeper is under many obligations and circumstances different from all other Tradesmen; for he is to take care of the Goods of Travellers, and if he set any unreasonable Price upon his Goods, 'tis an Offence which the justices of Peace and Stewards in their Leets have power to hear and determine.  
2. He doth not buy and sell by way of Contract, for most of his Gains arise by the entertaining and lodging of his Guests, by the attendance of his Servants, and by the Furniture of his Rooms, and by uttering of Commodities as in other Trades. 
Cro. Car. 548.  And therefore by the Opinion of three judges in the Case of Crisp and Prat, it was held that an Inn-holder doth not get his Living by Buying and Selling; for though he buyeth Provision, he doth not sell it by way of Contract, but utters it at what gain he thinks reasonable, which his Guests may refuse to give.  
justice Berkley in the arguing of that Case agreed, that he who getteth his Living by Buying and Selling, and not by both, is not within the Statutes, but the jury having found that he got a livelihood by both, and using the Trade of an Inholder, therefore he was a Bankrupt: But the other three judges were of a contrary Opinion, because an Innkeeper cannot properly be said to sell his Goods.  
As to his having a Share in a Ship, 'tis no more than a Stock to Trade, which may go to an Infant, or to an Executor after his decease, and if either of these persons should Trade with it, they cannot be made Bankrupts, because 'tis in altar droit.  
E Contra. 
E contra.  It was argued that he who keepeth an Inn is a Tradesman, and may be properly said to get his Living by Buying and Selling.  
The Goods of a Traveller are not distrainable for the Rent of an Innkeeper, the reason is because he is more immediately concerned as a Tradesman, for the benefit of Commerce.  
It was the Opinion of my Lord Rolls, 
2 Roll. Abr. 84.  that an Innkeeper was a Tradesman, therefore any Man might build a New Inn, for it was no Franchise, but a particular Trade to keep an Inn.  
And as a Tradesman he selleth his Goods to his Guests by way of Contract, 
39 H. 6.18, 19  for he is not bound to provide Hay and Dates for the Horses of his Guests without being paid in hand as soon as the Horses come into the Stable, for the Law doth not oblige him to trust for the payment.  
The Case of Crisp and Prat, as Reported by justice Croke, seems to be against this Opinion, 
Jones 437. March 34.  but 'tis misreported; for Jones who mentions the same Case, says, that it being found that the Innkeeper got his Living by Buying and Selling; it was the Opinion of two judges that he was within the Statute; but the other two judges, as to this Point, were of a contrary Opinion, for they held that an Innkeeper could be no more a Bankrupt than a Farmer, who often Buys and Sells  and other Goods.  
Tho' a Man is of a particular Trade, yet if it doth not appear that he got his Livelihood by Buying and Selling, 'tis not actionable to call such a person Bankrupt.  
Now certainly if the Plaintiff had declared that he was an Innkeeper, 
Styles 420. Sid. 299.  and got his living after that manner, and that the Defendant, to scandalise him, said He was a Bankrupt, the Action would lie as well as for a Dyer, Farmer, Carpenter, or such like Trades of manual Occupation.  
Most of the Innkeepers are Farmers, and if it had been so found in this Case, it would not have been denied but that he had been within the Statute of Bankrupts.  
Afterwards in Trinity- Term, 3 Willielmi, 
Judgement.  judgement was given for the Plaintiff: for taking the whole matter as found by this Verdict, 'tis not sufficient to make him a Bankrupt.  
1. That he had a Ship which he let to Freight, this was not much insisted on at the Bar to make him a Bankrupt, for 'tis no more than for a Man to have a Share in a Barge, Hackney-Coach, or Wagon, all which are let for Hire.  
Besides, in this Case 'tis found that the Plaintiff was but a Partner with another. And as to the 50 l. which he had in this Trade, that is not sufficient to make him a Bankrupt, 
Cro. Car. 282. Sid. 411.  for he must be actually a Trader at the time that the Debt was contracted, which is not found; so it must be to make the word Bankrupt actionable, for it must be found that he was a Trader at the time of the words spoken.  
All the Question of difficulty is, that the Plaintiff was an Innkeeper, and that he bought Necessaries and uttered them in his House; but this will not make him a Baukrupt.  
Because Inns are of necessity, and under the inspection of the public, and he cannot refuse to lodge travelling persons; 
2 Roll. Rep. 345. Hutt. 100 2 Roll. Abr. 64. Dalton 28.  and 'tis chief upon this account that he hath several Privileges which other Traders have not, as to detain a Horse till he is paid for keeping of it, etc.  
They are under the power of the justices of the Peace, in the places where they are situated; for if an Inn be erected in an inconvenient place 'tis a Nuisance, and may be suppressed by Indictment; 'tis the same with an Alehouse, 
1 Jac. c. 9 21 Sac. c. 7. 1 Car. c. 14.  and therefore several Statutes which are made to prevent Tippling, and which appoint at what price Ale shall be sold, have been adjudged to extend to Innkeepers.  
Where a Man Buys and Sells under a Restraint, and particular Limitation, though 'tis for his Livelihood, yet he is not within the Statutes.  
Innkeepers do not deal upon Contracts as other Traders do, for a judge of Assize may set a price upon his Goods, and if they should set a price themselves, if 'tis unreasonable they may be indicted for extortion; what they buy is to a particular intent, for 'tis to spend in their Houses, and tho' they get their Living by it, 'tis not ad plurimum, for the greatest part of their Gains ariseth by Lodgings, Attendance, dressing of Meats, and other Necessaries for their Guests.  
Ever since the Statute of the 13th of Eliz. all the subsequent Acts relating to Bankrupts have been penned alike, except the 21st of Jac. I. which is a little larger, and takes in a Scrivener, and it may still be worth the care of a Parliament to enlarge it to an Innkeeper, but no Law now in being extends to him.  
He is not taken notice of as a Trader within any of the Statutes of Bankrupcy, he is only communis hospitator, a person or Trador who buys and sells for hospitality; 
8 Co. Caly's Case.  by receiving Travellers he becomes chargeable to the Public, to protect them and their Goods.  
A Shoemaker, 
1 Cro. 31. Hutt. 46, 47.  Tanner and Baker are Trades within the Statutes, but the difference between those Trades and an Innkeeper is plain, because they use the Manufacture, and thereby increase the value, as Leather is made more useful and of more value, by making of it into Shoes.  
A Farmer is not within the Statute, and yet they all buy and sell, for 'tis necessary to their Occupation.  
This Point was settled in Crisp and Prat 's Case; but the occasion of the doubt afterwards, was by the publishing of justice Jones 's Reports, who doubted upon the particular finding of the jury, and so the Court came to be divided.  
There is no material difference between an Innkeeper and the Master of a Boarding-School, who buys and dresses Provisions for young Scholars, and obtains Credit by his way of Living, but it was never yet thought that he was within any of those Statutes.   

Rowsby versus Manning.  
Mich. 4 Jac. Rot. 15.  
DEBt upon a Bond for performance of an Award, 
Conditional submission to an Award.  so as it be made by such a day, and ready to be delivered to the Parties or to such of them as desire it.  
The Defendant pleaded nullum fecerunt arbitrium, etc.  
The Plaintiff replied, that after the submission, and before the day appointed in the Condition, the Arbitrators did make their Award, by which they ordered the Defendant to pay so much Money to the Plaintiff, and so assigned the breach for nonpayment, etc.  
And upon a Demurrer to this Replication, Sergeant Tremaine said it was a conditional submission, viz. to perform an Award, so as it be made by such a day, and ready to be delivered to the Parties, and the Plaintiff hath not showed that it was ready to be delivered to the Defendant, which he ought to have averred.  
If the Condition be to perform an Award between the Parties, 
5 Co. 103. More 642.  Ita quod arbitrium praed. fiat & deliberetur utrique partium praed. before such a day, it must be delivered to all the Parties, and not to one, for each of them are in the danger and penalty of the Bond.  
E contra. 
E contra.  Sergeant Thompson agreed it to be a conditional Submmission, but not such as goeth to the substance of the Award itself; for the conditional Words are not to the Award, but to the Form of the delivering of it, and therefore it should come on the Defendants side to show that it was not ready to be delivered.  
Curia. If an Award is actually made 'tis then ready to be delivered, but in this Case it must be ready to be delivered to the Parties, or to such of them who desire it, so it must be desired, and if then denied the Party may plead the matter specially.  
The Summission was, viz. 
2 Cro. 577. 2 Roll. Rep. 193.  so that the Award be made ad vel antea 5 Decemb. ready to be delivered at a certain Shop in London.  
The Plaintiff shown an Award made at York ready to be delivered at the Shop in London, this was adjudged to be a void publication and delivery, because a place was appointed where it should be delivered and published, viz. at the Shop in London, where the Parties were to expect it, and not elsewhere.  
So it would have been if a day had been appointed on which it ought to be delivered, and the day had been mistaken. 
2 Sand. 73.   
But here is neither day or place appointed for the delivery, so that the Defendant ought to have desired the Award; and if it had not been ready to be delivered, he ought to have pleaded the Matter specially.    

DE Term. Sancti Hill. Anno 2 Gulielmi & Mariae Regis & Reginae, in Banco Regis, 1690.  
Mr. Leigh's Case.  
HE brought a Mandamus to be restored to the Office of a Proctor of Doctor's Commons. 
Mandamus will not lie for the Office of a Proctor of Doctor's Commons.   
The Return was, that the Court was the supreme Court of the Archbishop of Canterbury, who had the Government thereof; that he appointed a judge of the said Court, who had power to alter and displace Officers; that the Defendant was admitted and sworn a Proctor of the Court and took an Oath to obey the Orders thereof; that part of the said Oath was, That no Proctor should do any thing in that Court without the Advice of an Advocate; that he had done Business without such advice in a certain Cause there depending; and that he refused to pay a Tax of; 10 s. imposed upon him by Order of the Court towards the Charges of the House.  
The Questions upon this Return were, viz.  
1. Whether a Mandamus will lie to restore a person to the Office of a Proctor?  
2. Whether a sufficient cause was returned to displace Mr. Leigh?  
As to the first, It was held that a Mandamus doth lie, because 'tis a public Office, and concerns the Administration of justice; and the Proctors being limited to a certain number, viz. 28. if many of them should be displaced it would be a means to hinder justice.  
This Court doth judicially take notice of the Ecclesiastical Courts, by prohibiting them, by taking notice of their Excommutions or of any proceed, when they are against the Law of the Land.  
A Proctor doth the Business in that Court as as Attorney in B. R. and Notice is taken of his place as judicially as of any other Officer; 
Sid. 94, 152.  and as to this purpose those Officers cannot be distinguished; if therefore a Mandamus hath been granted to restore an Attorney, why not a Proctor?  
The Plaintiff hath no remedy but by a Mandamus, because an Assize will not lie of this Office; 'tis admitted that an Action on the Case may be brought, but then Damages only are to be recovered, and not the Office; and it would be very inconvenient to leave it to a jury to give such Damages as the Party may sustain for the loss of his Livelihood.  
'Tis no Objection to say, that there is a proper Visitor, in this Case to whom to appeal, viz. to the Archbishop; for they have not set out any such visitatorial power in the Return; or if any, that he had power to restore him.  
But if such Power had appeared upon the Return, yet a Proctor ought not to appeal to the Archbishop or to the Guardian of the Spiritualties Seed vacant, because ' is in effect to appeal to themselves; for the Dean of the Arches before whom the Appeal must be brought is an Officer appointed by the Archbishop himself, and hath the same jurisdiction with him.  
Besides, the Proctors there are not properly under any Visitatorial Power, they have a particular jurisdiction within themselves, and their Courts have been held in several places, as at Bow, Christchurch, etc.  
Then as to the Causes of this removal 'tis returned.  
1. For receiving and prosecuting of a Cause without the advice of an Advocate contrary to a Statute made by the Archbishop Abbot.  
2. For refusing to pay 10 s. set upon him as a Tax towards the Charges of the House.  
Now neither of these are sufficient Causes to displace him.  
As to the first Cause, if that Statute gives them any such Power 'tis void, because it deprives a Man of his Freehold which cannot be done, but by the Law of the Land.  
'Tis not said when this Offence was committed, for it may be before a general Pardon, and then 'tis discharged.  
But if it is an Offence, that will not make a Forfeiture without warning, and no such thing appears upon the Return; 
11 Co. 99 a.  for if he had notice publicly, he might have offered something in excuse of himself, as Sickness, etc. which might have been allowed by the Court.  
'Tis as unreasonable a Law to put the Clients to unnecessary Charges to advise with an Advocate upon an ordinary Libel, as it would be for an Attorney of the King's Bench to advise with Council to draw a Declaration on a Bond.  
2. They do not show by what Authority they may levy a Tax, neither do they set forth what Tax was made in the whole; so that it might appear that 10 s. was a proportionable part for him to pay; neither doth it appear when this Tax was made, or that Mr. Leigh was a Proctor when it was made.  
E contra. 
E contra.  This is not an Offence in matter of judgement, but 'tis a Misdemeanour and punishable.  
'Tis very like the Case of Fellows of Colleges, who have proper Visitors, and therefore the King's Bench will not grant a Mandamus in such Cases.  
A Proctor is an Officer of a Court different from the Courts of Law, and therefore the King's Bench cannot take notice of his Office judicially; they have no other way of punishing of a Proctor but by displacing of him; and if this should be remedied by a Mandamus, than those persons may offend without punishment.  
'Tis not like the Case of an Attorney, for he being an Officer of the King's Bench the Court doth judicially take notice of him, but not of a Proctor. 'Tis more like the Case of a Steward of a Court Baron, which is of private jurisdiction, and for which a Mandamus hath been denied.  
'Tis like Midleton 's Case, who was Treasurer of the New River Water; 'tis true, a Mandamus was granted to restore him to that Office, but it was only de bene esse to bring the Matter before the Court, though that was a Corporation settled by Act of Parliament.  
'Tis also like the Cases of Abbots, Priors and Monks for whom a Mandamus was never granted, because they are Ecclesiastical Corporations and have proper Visitors, which is now by Law devolved upon the Archbishop.  
So also Lay Corporations have Visitors which are their Founders and their Heirs.  
'Tis an Objection of no force to say that this Appeal must be to the Dean of the Arches, which is to appeal to the same person, because though 'tis true that the Dean is constituted by the Archbishop, yet when once he is invested with that Office he is in for his Life, and the Archbishop cannot afterwards come into that Court, and execute the Office of Dean himself, so he is not the same person, neither hath he the same jurisdiction.  
Curia. A Proctor is not an Officer properly speaking, 'tis only an Employment in that Court, which acts by different Laws and Rules from the King's Bench; they have an original jurisdiction over this matter, and a Mandamus is in the nature of an Appeal, which will not be granted, where they have such a jurisdiction, but when they exceed it and encroach upon the Common Law, than Prohibitions are granted.  
'Tis for this reason that in cases of Divorce which are of a higher nature than this case is, no Appeal can be to the King's Bench, for it would be an endless business for persons to Appeal ab uno ad aliud examen, and therefore credit must be given to the determinations of those Courts, who have such Original jurisdiction.  
Officers are incident to all Courts, 
1 Roll. Abr. 526.  and must partake of the nature of those several and respective Courts in which they attend, and the judges, or those who have the supreme Authority in such Courts, are the proper persons to censure the Behaviour of their own Officers, and if they should be mistaken the King's Bench cannot relieve; for in all cases where such judges keep within their Bounds, no other Court can correct their Errors in Proceed.  
Now for a Churchwarden of a Parish, Clerk, an Attorney, or the like, all these are Temporal Officers, and are to be ordered by the Temporal Laws.  
But if any wrong be done in this Case the Party must Appeal; so no Writ of Restitution was granted.  

Rex versus Guardianum de le Fleet.  
AN Inquisition being found to seize the Office of Warden of the Fleet into the King's Hands: 
Inquisition quashed.  the Court of Chancery, assisted with three judges, was moved that it might be Quashed. The Exceptions taken were, viz.  
1. 'Tis found that the Defendant was Warden of the Fleet, but doth not say what Estate he had therein, whether for Life, or years, or in Fee, etc.  
2. The Offences which are the causes of the Forfeiture, are laid to be committed at the Fleet, by suffering Escapes, and by Extortion, and 'tis not found where the Fleet is situate, so there being no Visne, those Offences cannot be traversed.  
3. 
39 H. 6.32.  They do not find the Escape to be sine licentia & contra voluntatem of the Warden, the Debts being unpaid.  
4. Admitting it to be a Forfeiture, the Office cannot go to the King, but it shall go to the next who hath the Inheritance.  
The Opinion of the Court was, that there are two things which entitle the King to this Office, neither of which were found by this Inquisition.  
1. An Estate in the Party offending.  
2. A cause of Forfeiture of that Estate.  
Now here was no Estate found in the Warden, but only that the Office was forfeited by suffering of Escapes, etc.  
If this had been an Office of Inheritance, 
● Co. 95.  than it ought to be found that such a person was seized in Fee, etc. and so what Estate soever he had in it, aught to be expressly found.  
But as this is found, 'tis void, because it doth not answer the end for which the finding of Offices was provided, which is to entitle the King to the Offenders Estate.  
An Indictment is but another sort of Office, and here being no Estate found; 'tis much like an Indictment which finds no Offence, therefore it must be quashed.  
It might have been objected that no Man can tell what Estate the Warden had in this place, and that not being known, no Office could be found for the King.  
But this Objection runs to the finding of all manner of Offices in general, whose very nature is to find an Estate, and to divest the subject thereof and vest it in the King.  
Besides in this Case one of the Indentures by which the Office was granted to the Warden must be enroled in the Court of Common-Pleas.  
This cannot be helped by a Melius Inquirendum, 
3 Cro. 895. 9 Co. 95. Keilw. 194.  which never will support a defective Inquisition, and this is such because it doth not appear that the Defendant had any Seisin or Estate in the Wardenship of the Fleet.   

Barker Mil ' versus Damer.  
Hill. 1 Rot. 635.  
AN Action of Covenant was brought by Sir William Barker, (who was Defendant in a former Action) against Mr. Damer, wherein he declared that William Barker his Father was seized in Fee of the Land in Question (being in Ireland) and made a Lease thereof to one Page, for 31 years, under the yearly Rent of 200 l. in which Lease Page did Covenant for himself, his Executors, Administrators and Assigns to pay the Rent to Mr. Barker, his Heirs and Assigns.  
That William Barker the Father by Lease and Release conveyed the Reversion to Sir William Barker, the now Plaintiff, that the Term was vested in the Defendant, and assigns the breach for nonpayment of the Rent.  
The Defendant pleaded to the jurisdiction of this Court, that the Lands in the Declaration mentioned lay in Ireland, where they have Courts of Record, etc. and so properly triable there.  
To this Plea the Plaintiff demurred and the Defendant joined in Demurrer.  
The single Question was, whether an Assignee of the Reversion can bring an Action of Covenant against the Assignee of a Lessee in any other place than where the Land is.  
Those who argued that he may, said that this Action being brought upon an Express Covenant is not local but transitory, 
2 Inst. 231. Noy 142. 2 Cro. 142. ibidem. Sid. 157. 2 Roll. Ab. 571. 1 And. 82.  for debitum & contractus sunt nullius loci, and if it is a duty, 'tis so every where; therefore it hath been adjudged, that upon a Covenant brought in one County, the breach may be assigned in another.  
Tremain Serjeant Contra. 
E contra.   
He admitted that Debt upon a Lease for years upon the Contract itself, and Covenant between the same Parties are transitory Actions, and may be brought any where, but when once that privity of Contract is gone as by assignment of the Lessee or the death of the Lessor, 
Latch 197.  and there remains only a Privity in Law, there the Action must be brought in the County where the Land lieth; the reason is, 
Hob. 37.  because the Party is then chargeable in respect of the possession only.  
Therefore it was held that where an Assignee of a Reversion of Lands in Sommersetshire, brought an Action of Debt in London, 
Cro. Car. 184. Jones 83. Dyer 40 b.  upon a Lease for years made there, reserving a Rent payable at London, which was in arrear after the Assignment, that the Action was not well brought, for it ought to have been laid in Sommersetshire, where the Lands were, because the privity of Contract was lost by the assignment of the Reversion, and therefore the Party to whom that assignment was made, aught to maintain the Action upon the privity in Law, by reason of the Interest which he had in the Land itself, and that must be in the County where it lieth.  
Curia. There is a difference between an Action of Debt for Rent brought by an Assignee, and an Action of Covenant, for the first is an Action at the Common Law, which hath fixed the Rent to the Reversion, and therefore such an Action must be maintained upon the Privity of Estate, which is always local.  
But an Assigneé of a Reversion could not bring an Action of Covenant at the Common Law, 
1 Sid. 402. 3 Cro. 580. 1 Sand. 240. 32 H. 8. c. 34.  for 'tis given to him by a particular Statute (viz.) of 32 H. 8. but the Statute did not transfer any Privity of Contract to the Assignee, but the intent of it was to annex to the Reversion such Covenants only which concerned the Land itself, as to repair the House or amend the Fences, and not to inner or transfer any collateral Covenants, as to pay a Sum of Money, for that is fixed by the Common Law to the Reversion.  
'Tis true, At the Common Law an Assignee of a Reversion might have maintained an Action of Covenant for any thing agreed to be done upon the Land itself: Privity of Contract is not thereby transferred so as to make the Action transitory, but it must be brought upon the Privity of Estate; for if a Man doth covenant to do any collateral thing not in the Demise, and the Word Assigns is in the Deed, yet they are not bound if they have no Estate, so that 'tis not the naming of them, but by reason of the Estate in the Land, they are made chargeable.  
No judgement is entered upon the Roll.  
FINIS.    

ERRATA.  
FOlio 88 Line 13. for Defendant read Plaintiff, f. 106. l. 26. for no r. an, f. 119. l. 7. after (must be) r. Error, f. 147. l. 13, 18, 38. for coram r. quorum, f. 189. l. 23. for reasonable r. unreasonable, f. 196. l. 28. for devises r. demises, f. 199. l. 1. for 23. r. 13. f. 201. l. 14. before merged r. not, f. 218. l. 17. for 1672. r. 1679. f. 203. l. 31. after Berkley r. and Mr. Killigrew, f. 222. l. 31. leave out and marrieth, f. 226. l. 21. leave out she marrieth, f. 237. l. 29. for devise r. demise, f. 255. l. 31. for Father r. Nephew, f. 256. l. 12. for joined r. tried, f. 287. l. 6. after delivered r. tied, f. 303. l. 16. for Grantee r. Guarantee, f. 307. l. 36. for voidable r. void.   

A TABLE to the Third Part of Modern Reports.  

A.  
Abatement, See joint Action 8. 

1. DEBT was brought by four Plaintiffs, one of them died before Judgement, the Action is abated as to the rest, 249  
2. Waste is brought against Tenant pur altar vie, and pending the Writ, Cestui que vie dieth, the Writ shall not abate, because no other person can be sued for the Damages, ibid.  
3. Two Jointenants are Defendants, the death of one shall not abate the Writ, for the Action is joint and several, ibid.  
4. Where two or more are to recover in a personal thing, the death of one shall abate the Action as to the rest, ibid.  
5. But in Audita Querela the death of one shall not abate the Writ, because it is in discharge, ibid.    
Abeiance See Acceptance. 

1. Resignation of a Benefice passes nothing to the Ordinary, but putteth the Freehold in Abeiance till his acceptance, 297    
See Acceptance, Resignation, Surrender.  
Acts of Parliament See justice of Peace, 2 Pardon, 2 

Ought to be construed according to the intention of the Lawmakers, and aught to be expounded according to the Rules of the Common Law, 63  
2. Where a particular punishment is directed by a Statute Law it must be pursued, and no other can be inflicted upon the Offender, 78, 118  
3. When an Act is penal it ought to be construed according to Equity, 90, 157, 312  
4. Preamble is the best Expositor of the Law, 129, 169    
Action upon the Ease.  
Assumpsit. 

A Feoffment was made upon Trust, that the Feoffee should convey the Estate to another, the Cestuy que Trust may have an Action if the Feoffee refuseth to convey, 149  
2. In consideration that the Plaintiff would let the Defendant have Meat, Drink, etc. he promised to pay as much as it was reasonably worth; the word valerent was in the Declaration, it should have been quantum valebant at the time of the Promise, but held good after Verdict, 190  
3. Where a personal promise is grounded upon a real Contract, the Action will lie, 73  
4. It will not lie for Rent reserved upon a Demise, but where a Promise is made to pay Rend in consideration of occupying a House, it will lie, 240    
Action on the Case, See Bankrupts 2 Indictment 2 

Slander where it lieth. 

1. He is a Papist, spoken of a Deputy Lieutenant, 26  
2. Where the words injure a person in his Profession, or bring him in danger of punishment, 27  
3. He stole the Colonel's Cupboard Cloth, there being no precedent Discourse either of the Colonel or his Cloth, 280  
4. He is broken and run away, and never will return again, spoken of a Carpenter, 155  
5. He is a Rogue, a Papist Dog, and a pitiful Fellow, and never a Rogue in Town has a Bonfire before his door but he, spoken of a Merchant, who made a Bonfire at the Coronation of King James. 103  
6. He owes more Money than he is worth, he is run away and is broke, spoken of an Husbandman, 112  
7. The Wife was called Whore, and that she was the Defendant's Whore; the Husband and she brought the Action and concluded ad dampnum ipsorum, it lies without allegding special Damages, 120  
8. Sir J. K. is a buffle headed Fellow and doth not understand Law, he is not fit to talk Law with me, I have baffled him, and he hath not done my Client Justice, spoken of a Justice of Peace, 139  
9 J. P. is a Knave, and a busy Knave for searching after me and other honest men of my sort, and I will make him give satisfaction for plundering me, spoken of a Justice of Peace, no Colloquium was laid, the Court was divided, 163    
Where it doth not lie. 

Words were laid to be spoken ad tenorem & effectum sequen ' which is not an express allegation, that they were spoken, 71, 72      
Action on the Case against a Common Carrier. 

Where it was brought against him upon an Assumpsit in Law, and likewise upon a Tort, the Declaration is not good, 322    
Action on the Case for a wrong, See Pleading. 

For diverting of a Watercourse the Antiquity of the Mill must be set forth, 49  
2. It lies against a wrong doer upon the bare possession only, and the Plaintiff need not set forth whether he hath a Title by Grant or Prescription, for that goes to the right, 51, 52, 132  
3. If the Declaratien is for the diverting of the Water ab antiquo & solito cursu, this amounts to a Prescription, which must be proved at the Trial, or the Plaintiff will be nonsuited, 52  
4. Whether it lieth for the making of a scandalous Affidavit in Chancery, 108  
5. For selling of Oxen affirming them to be his own ubi revera they were not, but doth not say sciens the same to be the Goods of another, or that he sold them fraudulenter or deceptive, 'tis naught upon a Demurrer, but good after Verdict, 261  
6. Where several are guilty of a wrong the Action may be brought against either, 321  
7. Debt upon the Statute of Ed. 6. for not setting out Tithes brought against two Tenants in Common, one of them did set out the Tithes and the other carried them away, it ought to be brought only against the wrong doer, 322  
8. For disturbing of a Man in a Common Passage or Common Highway no Action on the Case lieth without a particular damage done to himself, for the proper remedy is a Presentment in the Leet, 294    
Administrator Vide Infant 18 Ordinary Interest 2 Pleading 2 

Administrator durante minore aetate hath no power over the Estate, 24  
2. Administration could not be granted by the Spiritual Court before the Statute of Ed. 3. 24  
3. Where 'tis once granted, whether it ought to be repealed, 25  
4. Administrator had the whole Estate in him before the Statute of Distributions, 60  
5. He then gave Bond to distribute as the Ordinary should direct, ibid.  
6. The Father died intestate leaving one Son, an Infant, Administration was granted durante minore aetate, he died before 17. whether Administration de bonis non of the Father shall be granted to the next of Kin of him or his Son, 61, 62  
7. Whether an Interest is vested in an Infant where Administration is granted durante minore aetate, so that if he die before 17. it goes to his Executor, 61  
8. Before the Statute of Distribution, if there was but one Child he had a right of Administration, but it was only personal; and if he died before it was granted to him by the Court, it would not go to his Executor, 62  
9 Husband hath a right of Administration to the Goods of the Wife, because the Marriage is quasi a Gift in Law, 64  
10. If Administration had been granted to a Stranger before the Statute of Distributions, and no Appeal within fourteen days, he who had right though beyond Sea was barred, 64  
11. Husband and Wife Administratrix to her first Husband, recover in Debt, the Wife died, and the Husband brought a Scire Facias to have Execution, it will not lie by him alone, because it was a Demand by the Wife as Administratrix in altar droit, ibid.  
12. Judgement was had in Somersetshire the Plaintiff died intestate, Administration is committed by an inferior Diocese, 'tis void, because the Entry of the Judgement in Middlesex where the Records are kept made him have bona notabilia in several Dioceses, and so Administration ought to be granted in the Prerogative, 324  
13. If the Intestate hath two Sons and no Wife, each have a Moiety of the personal Estate, if but one, an interest is vested in him, 59  
14. At Common Law none had a Right to an Intestate's Estate, but the Ordinary was to distribute it to Pious Uses, ibid.    
Admiral and Admiralty. 

There was a Sentence in the Admiralty, for taking of a Ship, and afterwards Trover was brought, for taking of the same Ship, whether it lies or not? 194  
2. Pawning of a Ship for Necessaries at Land, and a Libel was exhibited in the Admiralty, whether good or not? 244  
3. Where things arising upon Lands may be sued for in the Admiralty, 245    
Addition, See Indictment. 

Where it makes a thing certain, as an Ejectment de Tenemento is incertain, but with the addition vocat ' the Black Swan, 'tis made certain, 238    
Admittance, See Baron and Feme, 9 

A Custom cannot warrant an incertain Fine, upon an Admittance to a Copyhold, 133  
2. The Lord may refuse to admit without a tender of the Fine where 'tis certain, ibid.  
3. Where 'tis incertain the Lord is to admit first, and then to set the Fine, ibid.  
4. Custom that upon every Admission the Tenant should pay a years value of the Land, as it was worth tempore admissionis, 'tis good, 132  
5. For a Fine upon an Admission, an Action of Debt will lie, for though it favours of the realty, yet 'tis a certain duty, 230  
6. Before Admittance, the Estate is in the Surrenderor, and he shall have an Action of Trespass against any person who enters before another is admitted, 226  
7. Before an Admittance the Surrendree cannot enter but by special Custom to warrant it, 225    
Affidavit, See Action on the Case for a Wrong, 4.  
See Baron and Feme, 11. Infant, 21.  
Agreement and Disagreement. 

Whether assent is necessary to a Surrender, it being a Conveyance at the Common Law; 'tis not necessary in Devises, or in any Conveyances directed by particular Statutes, or by Custom, 298  
2. Whether the Estate shall be in the Surrendree immediately upon the execution of the Deed, if he doth not show some disassent to it, 300  
3. Agreement is not so much necessary to perfect a Conveyance, as a Disagreement is to make it void, ibid.  
4. A Feoffment to three and Livery is made to one, the Estate is in all till disagreement, 301    
Alien. 

Leases made to Alien Artificers are void by the Statute of 32 H. 8. This Statute was pleaded by an Alien, who was a Vintner, and held to be no Artificer, 94    
Amendment See Mistrial, Costs 2. 

1. Of the Distringas by the Roll after a Verdict, the Day and Place of Assizes being left out, 78  
2. In matters of Form, the Court have sent for a Coroner to amend his Inquisition, 101  
3. Of a Mis-entry of a Writ of Enquiry, without paying of Costs, 113  
4. Return to an Homine Replegiando, amended by Rule of Court, 120  
5. A Riot was laid to be committed after the Indictment, it was amended, being only a Misprision of the Clerk, 167  
6. Where matter of Form is cured by a Verdict, but 'tis not amendable upon a Demurrer, 235  
7. Scire Facias upon a Recognizance to have Execution for 1000 l. juxta formam Recuperationis, it should have been recognitionis, amended after a Demurrer, 251    
Amerciament, See Court 3. 

1. Differs from a Fine, for that is the act of the Court, but an Amerciament is the act of the Jury, 138  
2. It need not be to a Sum certain, for that may be affered, 138  
3. A Bailiff of a Liberty cannot distrein for an Amerciament Virtute officii, but he ought to set forth the taking Virtute Warranti, ibid.    
Appeal. 

Against three for a Murder, the Count was, that O. gave the wound of which the person died; the Jury found that L. gave the wound, and that O. and M. were assisting: this varies from the Count, and yet held good, 121  
2. The Wound was given in one County, and the Death ensued in another, and the Party was Tried where the Wound was given, and held good, ibid.  
3. At Common Law it was at the Election of the Appellant to bring the Appeal in either County, and the Trial to be by a Jury of both; but now it may be brought in the County where the Party died, 122  
4. Whether altar foitz Convict of Manslaughter is a good Plea to an Appeal of Murder, 156, 157  
5. If a Woman be slain, her next of Kin shall maintain an Appeal, 157  
6. How many things are required by the Statute of Gloucester to be alleged in an Appeal of Murder, 158  
7. The Appellee pleaded in Abatement, but did not plead over to the Felony, whether good or not, 267  
8. Where the Appellee must plead in propria persona, and where per Attornatum, 268    
Apportionment. 

Where a Contract under Hand and Seal for a Sum certain shall not be apportioned in an Action pro Rata, as if it be for a Years Service, the Plaintiff must serve a Year, and aver it, tho' the Contract is executory, 153  
2. But if a Promise is for a Years Board, an Action may be brought for three Quarters of a Year, for if there is a Variance between the Agreement and the Declaration, 'tis for the benefit of the Defendant, 154    
Apprentice. 

Whether Justices of Peace have any power to compel men to take poor Children Apprentices, since the Statute gives power to Churchwardens to raise Money for putting them out, which must be to such who are willing to to take them for Money, 270    
Arbitrament. 

To pay 5 l. presently, and give Bond to pay 10 l. more on a day following, and now to sign general Releases, it shall only discharge such matters which were then depending at the time of the submission, and not the Bond, 264  
2. A person who was a Stranger to the Submission was awarded to be a Surety, 'tis void, 272  
3. Submission was so as the Award be made, etc. ready to be delivered to the Parties, or to such of them, who shall desire it; the Defendant must desire the Award, and plead the matter specially, and the Plaintiff need not aver that it was ready to be delivered, 330    
Assent, See Agreement.  
Assets. 

Reversion in Fee Expectant upon an Estate Tail, is not Assets, but when it comes into possession, then and not before 'tis Assets, 257    
Assignment, See Privity of Contract, 2. 

Executor of a Lessee for years shall be liable to an Action of Debt for Rent incurred after an assignment of the Term, for the privity of Contract of the Testator is not determined by his Death, but his Executor shall be charged with his Contracts, so long as he hath Assets, 326    
Assizes. 

The Method of arraigning an Assize, the Title must be set forth in it, 273    
Attornment, See Bargain and Sale. 

Ejectment of a Manor, parcel in Rents and parcel in Services, the Attornment of the Tenants must be proved, 36    
Averment, See Devise, 4 

The consideration of a Duty ought to be precisely alleged, as in an Action on the Case for a Duty to be paid for weighing Goods, it must be averred that the Goods were such which are usually sold by weight. 162  
2. The nature of an Averment is to reduce a thing to a certainty which was incertain before, 216  
3. Where it may be made against the express words of a Condition, 217  
4. Not allowed to be made against a Record, 305     

B.  
Bail. 

IT was demised in a Scandalum Magnatum, 4  
2. Writ of Error pending in the Exchequer-Chamber, the principal in the Action rendered himself, the Bail are discharged, 87  
3. Scire Facias against Bail, upon a Writ of Error, who plead, that the Principal rendered himself before Judgement, 'tis not good, for the Bail, are liable not only to render the Body, but to pay the Debt, ibid.  
4. Proceed were stayed by Injunction above two Terms after the Bail was put in, and before the Declaration delivered, which was pleaded to a Scire Facias, brought against them, but held not good, 274    
Bankrupts. 

An Innkeeper is not within the Statutes of Bankrupcy, 327  
2. 'Tis not actionable to call a Man Bankrupt unless it be laid, that he was a Trader at the time of the words spoken, 329  
3. Innkeeper buys and sells under a Restraint of Justices and Stewards of Leets, which though for a Livelihood, yet cannot be a Bankrupt, 329  
4. Whether a Farmer or Master of a Boarding-School be within the Statutes, 330    
Baretry. 

Difference between Baretry and Maintenance, 97  
(2.) 'Tis not Baretry to arrest a Man without a cause, ibid.  
4. If one design to oppress and to recover his own right 'tis Baretry, 98  
5. Money may be laid out to recover the just right of a poor man and no Baretry, ibid.  
6. But money may not be expended to promote and stir up Suits, ibid.    
Barbadoss. 

It was gotten by Conquest, and therefore to be governed by what Law the King willeth, 161    
Bargain and Sale. 

What words by construction of Law shall amount to a Bargain and Sale to make the Reversion pass with the Rent without Attornment, 237    
Baron and Feme. See Slander 7 Administrator 9, 11 Sci. Fa. 7 

(1.) Whether Sci. Fa. will lie against the Husband alone after the death of the Wife upon a Judgement had against her Dum sola, 186  
(2.) If a Judgement is recovered against her while sole, than she marries, and dies, the Husband is not chargeable, unless had likewise against him during the Coverture, ibid.  
(3.) A Debt is due to her whilst sole, she marries and dies before 'tis recovered, it shall not go to the Husband by virtue of the marriage, but he may have it as Administrator to his Wife, ibid.  
4. Judgement is obtained against her whilst sole, she marries and a Sci. Fa. is brought against Husband and Wife, and Judgement quod habeat executionem, the Wife dies, a Scire Fa. may be brought against the Husband alone, 189  
5. The Recovery upon a Sci. fa. is against both, and is therefore joint against both, 188  
6. Husband may have Execution of a Judgement recovered by him and his Wife, after the Death of his Wife, without a Sci. fa. 189  
7. Devastavit against both, the Wife being an Executrix, and Judgement that the Plaintiff have Execution de bonis propriis, the Wife dies, the Goods of the Husband are liable, ibid.  
8. A Woman who had a Term for years, married, the Rent is arrear; she died: the Husband shall be liable, because by the Marriage he is entitled to the Profits of the Land, ibid.  
9 Feme Covert Copyholder, her Husband made a Lease for years, without Licence of the Lord, 'tis a Forfeiture during the Coverture, 222  
9 Feme Covert Heir to a Copyhold Estate, her Husband after three Proclamations will not be admitted, 'tis a Forfeiture during Coverture, 226  
10. The Husband hath a Lease in Right of his Wife, who was an Executrix; and he grnats all his Right and title therein, the Right which he had by his Wife passeth, 278  
12. A. Feme Sole had a Lease and Married; then Husband and Wife Surrender in consideration of a new Lease to be granted to the Wife, and to her Sons, the Estate vests immediately in her, without the assent of her Husband, for the Law intends it her Estate till he dissassent, 300  
13. Feme Covert, and another joint-Tenant for Life, she and the Husband Lease their Moiety, reserving a Rent, during Life, and the Life of her Partner, the Wife died, 'tis a good Lease against the Surviving joint-Tenant, till disagreement, 300  
14. The Husband made a Feoffment in Fee to the use of himself and Wife, and to the Heirs of the Survivor; he afterwards made another Feoffment of the same Lands, and died; the Wife entered, but the Fee was not vested in her by the first Conveyance, because the contingent right was destroyed by the last, 310    
Barr. 

Recovery in a personal Action is a Bar to an Action of the like nature where the same Evidence supporteth both Actions, 2  
Judgement in Trespass is no Bar to an Action of Detinue, 2    
Bill of Exchange. 

The Drawer and Endorsers are all liable to payment, but if Recovery be against one, 'tis a good Bar to an Action which may be brought against the rest, 86    
By-Law, See Corporation 12. Trade 8. 

Where 'tis too general and where not, 193     

C.  
Carrier, See Pleading 11.  
Certainty, See Custom. Grants.  
Certiorari. 

IT lies to remove Causes and Orders from an inferior Jurisdiction, where 'tis not prohibited in express words by any Statute, 95  
2. Will not lie to the Grand Sessions, nor to a County Palatine to remove Civil Causes, quaere whether it lies to the Royal Franchise of Ely, 230    
Charter. 

Usage shall expound ancient Charters, 9  
(2) The Common Law doth operate with it, ibid.  
3. One Clause of a Charter may expound another, 10  
4. A Charter which establishes a Corporation must provide for a new Election in order to a Succession, otherwise the Common Law will not help, 13    
Church, See Prohibition.  
Commitment. 

By the Lord Chancellor and several others, Dominos Concilii, (for a Misdemeanour) whether it should not be Dominos in Concilio, 213  
2. Of a Peer for a Misdemeanour which amounts to a Breach of the Peace, for which Sureties are to be given, 214  
3. When a person is brought in by a Capias for any offence he ought to plead instanter, 215    
Common and Commoner See joytenancy 4 joint Action 7 Prescription 7 

A Common cannot pass without Deed, and if the Plaintiff showeth a Que Estate he must produce the Deed, 52  
2. If a Prescription is made for a Common, and doth not say for Cattle Levant and Couchant, 'tis not good, 162, 246  
3. But this fault is cured by a Verdict, 162    
Confederacy, See Indictment.  
Condition See Infant 2. Notice 2, 4. 

A bare denial without doing any more is no Breach of the Condition, 31  
2. How it differs from a Limitation, 32  
(3.) To restrain Marriage to the consent of particular persons is void, ibid.  
4. Where 'tis of two parts in the disjunctive, and both possible at the time of the Bond given, and one becomes impossible afterwards by the Act of God, the Obligor is not bound to perform the other part; for the Condition being made for his benefit shall be taken very beneficially for him, who had election to perform either part, 233  
(5.) When the Condition is but of one part 'tis otherwise, as if A. promise B. that if C. do not appear such a day at Westminster, he will pay 20 s. C. died before the day the Money must be paid, 234  
6. Condition was to pay Rend at Michaelmas or Lady-day during the Life of a Woman, or within thirty days after, she died after the Feast, but within the thirty days, the payment which was due at the Feast was discharged thereby, ibid.  
7. To save harmless Non damnificatus generally is a good Plea, but if it be to save harmless, acquit and discharge, then 'tis not good without showing how acquitted and discharged, 252    
Confederacy, See Agreement.  
Consideration, See Action on the Case.  
Construction. 

Where it shall be made of an Act of Parliament according to the intent of the Lawmakers, 33  
2. Where it shall be made of an entire Sentence so as the intent of the Law may appear, 220  
3. Where particular words are in the first part of a Sentence, and general words follow, both shall stand, 278, 279    
Contract. 

Where an Agreement is entire to do or perform a thing for a certain Sum, it shall not be apportioned pro rata for the performance of part, 153  
(2.) There must be a recompense of each side to make the Contract good, 237    
Copyhold and Copyholders, See Baron and Feme, 8, 9 

Lord may seize the Land of a Copyholder till a Fine is paid, 222  
2. A Man by Custom may assign a person to take the Profits of a Copyhold Estate during the Minority of an Infant without rendering an account when he comes of Age, ibid.    
Corporation, See Charter 4. 

In all proceed which concern a Corporation, it must be alleged that there is one, and how erected, whether by Grant or Prescription, 6  
2. Mayor hath no more Power than an Alderman in the Coporation where he is Mayor, 9  
(3.) Is not of the Quorum for electing of an Alderman, 10  
4. The Mayor is named in the Grant as part of the Name of the Corporation, and is not of the Quorum without naming him to be so, 9, 10  
5. He is a Mayor in respect of Reverence, but not of Power, 11  
6. At the Common Law neither his Name or Office require his presence at the choosing of an Alderman, 11, 14  
7. He cannot act eo nomine, but by the express Power given in the Charter, 12  
8. Elections of Officers of a Corporation must be free, 21  
(9) Mayor of a Corporation is no Officer at the Common Law, 12  
(10.) Original of Corporation was preservation of Trade, ibid.  
(11.) Corporation by Charter without setting forth their Duty or Office hath no Power, ibid.  
12. A Company in London made a By-Law, that none of them should buy such a Commodity within 24 Miles of London but two Men, 'tis too large to bind at such a distance out of their Jurisdiction, 159    
Costs, See Amendment 3. 

Trespass for breaking of a Close, and impounding of , and Damages given under 40 s. the Plaintiff shall have his Costs, 39  
2. Amendment after a Writ of Error brought, Costs must be paid, 113    
Covenant, See Local Action. 

Where a thing is lawful at the time of the Covenant made, and afterterwards prohibited by Law, yet the Covenant is binding, 39  
2. To find Meat, Drink, and other Necessaries, the Breach was assigned in not finding Meat, Drink, & alia necessaria, and entire Damages; though this Breach was too general, yet 'tis good; for it may be as general as the Covenant, 69  
3. There must be such certainty in it that if the Defendant should be sued again he may plead the former Recovery in Bar, ibid.  
4. Need not so much certainty in assigning a Breach upon a Covenant, as upon a Bond for performance of Covenants, ibid.  
5. For quiet enjoyment the Breach was that a Stranger habens jus & titulum, and doth not say what Title; for it may be under the Plaintiff himself, therefore not well assigned, 135  
6. To make an Assignment according to an Agreement between the Partis, as Council should direct, whether the Council of the Plaintiff or Defendant should advise, 192  
7. Give, grant and confirm are words at the Common Law, where they shall be taken to amount to a Covenant to stand seized, 237    
Court. 

Cause not to be removed out of an inferior Court, unless the Habeas Corpus is delivered to the Steward before Issue or Demurrer joined, so as 'tis joined within six Weeks after Arrest or Appearance, 85  
(2.) If the Cause is tried in an inferior Court, the Steward not being an Utter Barister, an Attachment shall go, ibid.  
3. Amerciament in a Court Leet is a Duty vested in the Lord, for which he may distrain, 138  
4. Presentment in a Court Leet is the proper remedy when a Man is disturbed in a common Passage or Way, 294    
Custom See Admittance. Infant 10. Prescription 8. Pleading 12. 

Must have nothing to support it but Usuage, 133  
(2.) 'Tis made of repeated Acts, ibid.  
(3.) Must be very certain or 'tis not good, 134  
(4.) Must be taken strictly when it goes to the destruction of an Estate, 224  
(5.) A Custom that every Copyholder, who leases his Land shall forfeit, it doth not bind an Infant, 229  
6. Amongst Merchants where it must be particularly set forth, 226  
7. It must be certain and therefore where it was laid for an Infant to sell his Land when he can measure an Ell of Cloth, 'tis void for the incertainty, 290  
8. To have solam & separalem pasturam hath been held good, 291  
(9) Prescription must have a lawful commencement, but 'tis sufficient for a Custom to be certain and reasonable, 292  
10. Whether a Custom likewise aught to have a lawful commencement, 293     

D.  
Damages See Ejectment 3. joint Action 2. Trespass 2. 

Baron and Feme brought an Action for words spoken of the Wife, and concluded ad damnum ipsorum, 'tis good, for if she survive the Damages will go to her, 120    
Det See Admittance 5. Assignment 1. judgement 1. Quantum meruit. 

Where 'tis brought upon a Specialty for less than the whole Sum it must be showed how the other was discharged, 41  
2. Whether it lies for a Fine upon an admission to a Copyhold Estate, for it doth not arise upon any Contract, 240  
3. There must be a personal Contract or a Contract employed by Law to maintain an Action of Debt, ibid.    
Deceit, See Action on the Case.  
Deputy, See Office 6, 7, 9  
Devise, See Tail. 

Where it shall not be extended by implication, 82  
2. Where the word Estate passeth a Fee, where not, 45, 105.  
3. I give All to my Mother, passeth only an Estate for Life; for the Particle All is a Relative without a Substantive, 32  
4. To A. and the Testator's Name is omitted in the Will, yet 'tis good by averring his Name, and proving his Intention to devise it, 217  
5. The Testator after several Specific Legacies and Devises of Lands, gave all the rest and remaining part of his Estate, etc. by those Words the Reversion in Fee passed, 228  
6. By the Devise of an Hereditament the Reversion in Fee passeth, 229    
Disseisin, See Election, 1. Interest, 2. 

The Son Purchased in Fee, and was disseised by his Father, who made a Feoffment with Warranty, the Son is bound for ever, 91  
2. Lessor made a Lease for Life and died, his Son suffered a Common Recovery, this is a Disseisin, ibid.  
3. Where an Estate for Life or years cannot be gained by a Disseisin, ibid.  
4. A wrongful Entry is never satisfied with any particular Estate, nor can gain any thing but a Fee-simple, 92    
Distribution. 

Before the Statute, if there was but one Child, he had a right of Administration, but it was only personal, so that if he died before Administration, his Executor could not have it, 62     

E.  
Ejectment. 

THE Demise was laid to be the 12th of Junii habendum a praed. duodecimo die Junii, which must be the 13th day, by virtue whereof he entered, and that the Defendant Postea eod 12 die Junii did Eject him, which must be before the Plaintiff had any Title, for his Lease commenced on the 13th day, not good, 199  
2. De uno Messuagio sive Tenemento, not good, because the word Tenementum is of an incertain signification, but with this addition vocat ', the Black Swan, 'tis good, 238  
3. If the Term should expire, pending the Suit, the Plaintiff may proceed for his Damages; for though the Action is expired, quoad the possession, yet it continues for the Damages, 249    
Election. 

Where the Cause of Action ariseth in two places, the Plaintiff may choose to try it where he pleases, 165  
2. Tenant at Will made a Lease for years, the Lessee entereth, this is no disseisin, but at the Election of him who had the Interest in it, 197    
Entry. 

In Feoffments, Partitions and Exchanges, which are Conveyances at the Common Law, no Estate is changed until actual Entry, 297  
2. Lease for years not good without Entry, 297  
3. Tenant for Life, Remainder in Tail Male levied a Fine, and made a Feoffment having but one Son then born, and afterwards had another Son, the eldest died without Issue, the Contingent Remainder to the second was not destroyed by this Feoffment, for it was preserved by the right of Entry which his elder Brother had at the time of the Feoffment made, 305    
Escape. 

Debt upon an Escape would not lie at the Common Law against the Gaoler, it was given by the Statute of W. 2. 145  
2. The superior Officer is liable to the voluntary Escapes suffered by his Deputy, unless the Deputation is for life, 146  
3. If an Escape is by negligence it must be particularly found, 151  
4. A person was in Execution upon an erroneous Judgement, and escaped, and Judgement and Execution was had against the Gaoler, and then the first Judgement was reversed, yet that against the Gaoler shall stand, 325    
Evidence, See Witness. 

An Affidavit made in Chancery shall not be read as Evidence, but only as a Letter, unless Oath is made by a Witness that he was present when it was taken before the Master, 36  
2. What shall be Evidence of a fraudulent Settlement, ibid.  
3. An Answer of a Guardian in Chancery shall not be read as Evidence to conclude an Infant, 259  
(4.) Whether the return of the Commissioners in a Chancery Cause that the person made Oath before them is sufficient Evidence to convict of Perjury, 116  
5. Whether a true Copy of an Affidavit made before the Chief Justice is sufficient to convict the person for the like Offence, 117  
6. A Verdict may be given in Evidence between the same Parties, but not where there are different persons unless they are all united in the same interest, 142  
7. Conviction for having two Wives shall not be given in Evidence to prove the unlawfulness of a Marriage, but the Writ must go to the Bishop because at Law one Jury may find it no Marriage, and another otherwise, 164    
Exchange. 

Ought to be executed by each Party in their Life time, otherwise 'tis void, 135    
Excommunication, Stat. 5 Eliz. 

For not coming to the Parish Church the Penalties shall not incur if the person hears Divine Service in any other Church, 42  
2. The Causes are enumerated in the Statute which must be contained in the Significavit, otherwise the Penalties are not to incur, 89    
Executor, See Grants. Notice 5. 

Whether an Executor de son tort can have any interest in a Term for years, 91, 93  
2. An Executor may sell the Goods before Probate, 92  
3. May pay Debt upon a simple Contract, before a Bond, of which he had no notice, 115  
4. Whether an Action of Debt will lie against an Executor upon a Mutuatus,  
5. By what words he hath an Authority only, without an Interest in the thing devised, 209, 210  
6. He had both Goods of his Testator, and of his own, and granted omnia bona sua, that which he hath as Executor will not pass, for they are not properly sua, 278    
Exposition of Words and Sentences, See Number. 

Subsequent words may explain a former Sentence in a Deed, but in Wills the first words guide all which follow, 82  
2. Action was brought by Original, for that the Defendant prosecut ' fuit & adhuc prosequitur in the Admiralty; those words adhuc prosequitur shall not be construed to make it subsequent to the Original, but must refer to the time of suing it forth, 103, 157  
3. Doubtful Words must be Expounded always against the Lessor, 230  
4. To make an Assurance to the Obligee and his Heirs, the Conjunction and shall be taken in the disjunctive, 235     

F.  
Fair, See Trade. 

IF the place where it should be kept is not limited by the Grant, it may be kept where the Grantee will, 108    
False Imprisonment. 

It will not lie against a Sheriff for taking the Body by virtue of a Casa, upon an Erroneous Judgement, for the Execution is good till avoided by Writ of Error, 325    
Fees. 

Of the Clerks of the Crown-Office, the Court will not regulate upon a Motion, but if oppressive they must be indicted for Extortion, 297    
Fines levied, See Tenant at Will, 6. 

One of the Cognisors died before the return of the Writ of Covenant, 'tis Error; but not in the case of a Purchaser for a valuable consideratino, for the Court will interpose, 99  
2. If the Cognisor doth die after the Entry of the Kings-Silver, the Fine is good, 140  
3. Writ of Covenant, Teste 15th of January, returnable in Crastino Purificationis taken by Dedimus 18th of Januarii; The Cognizor died in Easter-Week following, but four days before her Death, the Kings-Silver was entered as of Hillary-Term precedent; this was held a good Fine, 141  
4. Where a person is in possession by virtue of a particular Estate for Life, and accepteth a greater Estate, it shall not divest the Estate of those in Remainder for Life, so as the same may be barred by Fine and Non-claim, 195  
5. Lease for one hundred years in Trust to attend the Inheritance, cestuy que Trust being in possession, Demises to another for fifty years, and levied a Fine, and the five years passed, the Term for a hundred years is divested by this Fine, and turned to a right, and so barred, 196  
6. In what Cases a Fine is a Bar, and what not, 198    
Fines upon Admittance, See Admittance, Copyhold, Debt, 2. Infant, 9 

The Judges are to determine whether it be reasonable or not, 134  
2. Lord cannot enter for nonpayment of an unreasonable Fine, 134    
Forfeiture. 

If Tenant for years make a Feoffment, 'tis a Forfeiture, but if he make a Lease and Release, ' though 'tis of the same Operation, yet 'tis no forfeiture, 151    
Fraud, See Evidence.   

G.  
Grants, Grantor and Grantee. 

WHere an Interest is coupled with a Trust in a Grant, it shall go to the Executor of the Grantee, 43  
2. Grants must be certain, otherwise they are void, 134    
Grants of the King. 

Not good for the sole Printing of Blank Bonds, exclusive of all other Printers, 75  
2. A Grant to restrain trading to particular places, is good, 77  
3. But of sole making Cards not good, because it restrains a whole Trade, ibid.  
4. A Grant cannot divest the Subject of a Right enjoyed long before it was made, ibid.  
5. Cannot discharge a person of a Duty to which he is made liable by a subsequent Act of Parliament, 96  
6. Difference between his Grants and Prohibitions,  
7. Where his Grants ought to be taken very strictly, 168  
8. In a Quo Warranto, the Defendant pleaded that the King was seized in Fee of a Franchise, who granted it to another Habendum the Hundred, whether good or not, 199    
Gun, See justice of Peace, 3. 

Conviction before a Justice of Peace, upon the Statute of H. 8. for keeping a Gun, not having 100 l. per Annum, quashed, because it was said non habuisset, instead of nunquam Habuit, 100 l. per Annum, 280     

H.  
Habendum. 

WHere it shall be said to explain the general Words preceding, 81  
2. Nothing passes in the Habendum, but what was mentioned in the Premises, 199    
Heir. 

Error by the Plaintiff, ut Consanguineus & Haeres, viz. Filius, etc. 'tis sufficient without showing the descent from more Ancestors, 152  
2. Where he shall take by Descent, and where by Purchase, 205  
3. In a Bond where the word Heir is a word of Limitation, and not a designation of the person, 233  
4. Reversion in Fee descended to an Heir after the Estate Tail spent, and an Action was brought against him upon a Bond of his Ancestor, 'tis not necessary that the Plaintiff name all the intermediate Remainders, but him who was last actually seized of the Fee, 255    
Heriot. 

Lease for 99 years if A. B. C. so long live, paying an Heriot upon the death of either, A. assigns the term, no Heriot shall be taken of the Assignee, 231  
(2) May seize or distrain for Heriot Service; if distrain it may be the Beast of any man upon the Land; but if he seize it must be the very Beast of the Tenant, ibid.  
3. Where an Heriot is reserved upon a Demise it differs from those which are due by Tenure, 231  
4. Lease for 99 years if M. and D. so long live, reserving an Heriot after death of either, provided if D. survive no Heriot to be paid, but M. survived, the Court was divided whether a Heriot should be paid, 230    
Highways. 

A Man cannot be exempted from repairing by the Grant of the King if made before the Statute of Ph. & Mar. which charges him to repair, 96    
Homine Replegiando. 

Brought for a Monster, and upon the Return of the Sheriff, that he had replevyed the Body, he was bailed, 121  
2. Brought for a young Woman taken out of her Parent's Custody, and married against her Consent, 169    
Hue and Cry, See Robbery.  
Hundred Court. 

This Court was first derived from the County Court, 200  
(2) Hundreds were usually granted to Abbots, and their Possessions coming to the Crown by dissolution of their Abbeys are merged, and cannot be regranted, 200     

I.  
Idiot. 

HOW it differs from a Lunatic, 43  
2. The King hath power to grant his Estate to any person without Account to be given, ibid.  
3. Grant of an Idiot by the King, the Grantee dieth, his Executor hath an Interest in him, ibid.    
jeoffails See Indictment 8. Travers 4. Variance 2. 

None of the Statutes help an insufficient Indictment, 79  
2. Variance between original and declaration not aided by the Statute of jeofails, 136  
3. Want of concluding without a Travers is but matter of form, and aided, 319    
Indictment. 

For using of Alias Preces than enjoined by the Book of Common Prayer it may be upon an extraordinary occasion, and so no Offence, 79  
2. For scandalous words whether it lieth as it doth for Libels, the one being a private, the other a public Offence, 139  
3. For Baretry in soliciting of a Suit against another, who was not indebted to the person, 97  
4. It will lie for such words for which an Action will not, 139  
5. For a Riot in unduly electing of an Alderman of Bristol, not being summoned by the Mayor, 5  
6. Exception to it, viz. doth not say that 'tis antiqua Villa, or whether it was a Corporation by Charter or Prescription, of which the Court cannot judicially take notice if not shown, 5  
7. Doth not say that any Charter was granted to the City of Bristol, where the Riot was supposed to be committed, 7  
(8.) Must be very exact and certain, for 'tis not aided by any Statute of jeofails, ibid.  
9 For treasonable words preached in a Sermon, viz. We have had two wicked Kings together, etc. whether good without some preceding discourse of the King, 53, 54, 69  
10. For Subornation of Perjury in persuading another to swear, and doth not set forth that the Oath was made, that it might appear, that the thing sworn was false, 122  
11. Quashed, because the words per Sacramentum duodecim proborum & legalium hominum were left out, ibid.  
(12.) For using a Trade not being an Apprentice upon 5 Eliz. and doth not aver that it was a Trade used before the making of the Act, 152  
13. For not serving upon a Wardmote Enquest, quashed for incertainty, 168  
14. For Perjury by the Name of A. B. de Parochia de Algate, and did not show in what County it was, for which reason it was held not good, 139  
15. In Indictments there must be an addition to the person and place, viz. To the person, of what Estate and Degree he is. To the place, viz, in what Hamlet, Town, Place and County he liveth, 139  
(16.) Caption was coram Justiciariis ad pacem dicti Domini Regis conservand ', and did not say (nunc) whether good, ibid.  
17. For Burglary the very day need not be set down, for if it be either before or after the Offence the Jury ought to find according to the truth, 141  
18. 'Tis sufficient to lay the Fact to be committed in Parochia, etc. without laying a Vill, though Parish is an Ecclesiastical division; 158  
19 Per Sacramentum 12 praesentat ' existit modo & forma sequen ' Midd. viz. Juratores pro Domino Rege praesentant, it should have been praesentat ' existit quod, etc. and not modo & forma, quashed, 201  
20. The certainty of the Fact ought to be particularly alleged, if for Murder it must be alleged that a Stroke was given, 202  
21. Pardon was pleaded, and Judgement quod Defendens eat sine die, but being convicted of Manslaughter, his Goods were forfeited, and though he was out of the Court by this Pardon and Judgement, yet the Indictment was quashed upon a Motion for a fault in it, and this was to prevent the Seizure, 202  
22. Two were indicted for a Confederacy, one of them was acquitted, and the other found guilty, the acquittal of one is the discharge of the other, 220    
Inducement. 

In Trover the Contract is but Inducement, the Cause of Action is upon the Conversion, 322    
Inferior Court, See Court.  
Infant See Copyhold 2. Custom 5, 7. Evidence 3. 

After three Proclamations in a Court Baron of a Manor, he did not come to be admitted to a Copyhold Estate, and held no Forfeiture, 223  
2. Had an Estate upon Condition to be performed by him and 'tis broken during his Minority, the Estate is gone for ever, 222, 224, 226  
3. The Law will not allow the Privilege of Infancy to work a wrong to any body, 222, 226  
4. Shall not be prejudiced by the Latches of another, but shall be answerable for himself, 222, 223  
5. Custom to be admitted after three Proclamations will not bar him if beyond Sea, 222  
6. He is not obliged to be admitted during his Infancy, 223  
7. His Feoffment is no Forfeiture at the Common Law, ibid.  
8. If he doth not present to a Church within six Months it shall lapse, ibid.  
(9) He may be admitted to a Copyhold, but not obliged to pay the Fine during his Nonage, 224  
(10) May be bound by acts of Necessity, and by some Customs, ibid.  
(11) Where he hath a right it shall be preserved after a Fine, and Non-claim, but he hath no right before admittance to a Copyhold, 226  
12. Cases of Coverture and Infancy are guided by the same reason of Law, so are Cases of Infants and Lunatics, ibid.  
13. Where he brought an Audita Querela to avoid a Statute entered into by him in his minority, 229  
14. A Surrender made by an Infant is void, 303  
15. Where Acts done by him are void in themselves where voidable, 307  
16. When he is made Defendant he must appear by Guardian, and not by Attorney, for he hath not capacity to choose one; the appearance by Guardian is the Act of the Court, when he is Plaintiff he may sue per Prochein Amy, 236  
17. Whether in Replevin one of them who made Cognizance, being an Infant, may do it per Attornatum? it may be pleaded in Abatement, 248  
18. If he is Administrator he may bring an Action of Debt per Attornatum, because he sueth in the right of another, 248  
(19) Where he recovers as Plaintiff, the Defendant shall not assign infancy for Error, ibid.  
20. Answer of his Guardian in Chancery, shall not be read as Evidence at Law to conclude him, 259  
21. He is not capable to take a Surrender, because he cannot give his assent, which is an essential requisite to a Surrender, 298  
22. Release by an Infant Executor is no bar, for it worketh the destruction of his Estate, 303  
23. Cannot surrender a future Interest by his acceptance of a new Lease, or make an absolute Surrender of a Term by Deed, 304    
Information. 

For a Forgery brought against a Coroner, who inserted the Names of two persons in an Indictment upon his Enquest for a Murder whom the Jury had not found Guilty, 66  
2. For a Riot in breaking a Bank and diverting a Watercourse, the Jury found quoad fractionem Ripae guilty, and quoad Riotam not guilty, for which reason the Judgement was arrested, 73  
3. For going Armed to terrify the People, 'tis an Offence at Common Law, 118  
4. For forging quoddam scriptum per quod, A. was bound, which cannot be if the Bond was forged, 104  
5. For Perjury in a Deposition taken before Commissioners in Chancery, whether they ought to be present to testify that the Defendant is the same person, 116  
6. An Information of Perjury will not lie against a Person for Swearing to the value of Lands, if not true, 134  
7. Upon the 5th of Eliz. against a Turkey-Merchant for employing Men in his House to dress Cloth, it was held to be exercising the Trade of a Cloath-Worker, 315    
Innkeeper, See Pleading, 11.  
Inquisition, See Melius Inquirendum. 

Found to be an Idiot, per spatium octo Annorum those words are surplusage, for he must be so, a nativitate, 44  
2. Quashed, because the year of the King was omitted, 80  
3. Taken before a Coroner, the person having drowned himself, it was suffocat ' & emergit fuit, if it had stood singly upon the word emergit it had been insensible, but the word suffocat ' expressing the sense, it was held good, 100  
4. Where nothing is vested in the King before Office found, ibid.  
5. It must always be found that there is an Estate in the person offending, and a cause of Forfeiture of that Estate to vest it in the King, 336    
Interest in a thing, See Pardon, 4. 

Where a Man may have an interest in a Chattel without a Property, 61  
2. Devise to a Wife and Children after Debts and Legacies paid, an interest vests in the Devisees; but 'tis otherwise in case of Administration, for there no Interest vests till actual distribution, 65  
3. A Man may have a Property, tho' not in himself, as in the Case of joint-tenancy, 97    
Intestate, See Administration.  
Innuendo. 

The proper office of it is to make the subject matter certain, 53  
2. It will not help insensible words, 54    
joint-tenancy, and Tenancy in Common, See Abatement, 3. Baron and Feme 12. Interest 3. 

If one Joyntenant bring an Action against the other, unless he pleads the Jointenancy in abatement, the Plaintiff will recover, 97  
2. If two Coparceners' lease a House and the Rent is arrear, and one brings an Action and recovers, Judgement shall be arrested, because both aught to join, 109  
3. Tenants in Common must join in the personalty, but 'tis otherwise in real Actions; for though their Estates are several, yet the Damages to be recovered survive to all, 109, 251  
4. Where one Commoner may bring an Action against his Fellow, 251    
Joint Action, See Action for a wrong, 6. joint-tenancy, 2, 3. 

Where an Action may be joint or several at the Election of the Plaintiff, 86  
2. Where 'tis brought against three Defendants, who plead jointly, the Jury may sever the Damages, and the Plaintiff may take Execution de melioribus damnis, as well as where their Pleas are several and Trials at several times, 101, 102  
3. Judgement against two, and one brought a Writ of Error, and assigned the Infancy of the other for Error, the Writ was abated because both did not join, 134  
4. The Defendants in the original Action must join in a Writ of Error; but it seems otherwise where the Plaintiffs bring Error, 135  
5. Two covenant to sell Lands, and the Purchasor agreed to pay the Money to one of them, he alone ought to bring the Action, 263  
(6) Where there are several Proprietors of a Vessel for carriage of Goods, which are damaged by carrying, the Action must be brought against all or against the Master alone, 321, 322  
(7) Where two Tenants in Common were sued for not setting out of Tithes, the Action ought to be brought not against him, who set them out, but against the other who carried them away, 322  
8. Two are bound jointly, one is sued, he may plead in Abatement, that he was bound with another, but cannot plead Non est factum, 323  
(9) In all Cases which are grounded upon Contracts, the Parties who are Privies, must be joined in the Action, ibid.  
(10) Action must be brought against all where a promise is created by Law, 324    
Issue. 

Must be joined upon an affirmative, and a negative by concluding to the Country, 80    
judges. 

The making, altering and displacing of several Judges, Sergeants at Law and King's Council, 71, 99, 100, 104, 125, 143, 191, 239    
justices of Peace. 

Offences against the Statute of 23 Eliz. c. 1. for not coming to Church may be enquired of by them in their Sessions, 79  
2. Where a Statute appoints a thing finally to be done by them, yet the Court of King's Bench may take Cognizance of it, 95  
3. Conviction for keeping of a Gun before a Justice of Peace, the time when he had not 100 l. per Annum must be precisely alleged, 280    
justification, See Pleading 4, 5. 

Where 'tis pleaded by way of Excuse to an Action of Trespass, for the taking of any thing, the Defendant must aver the Fact to be done, and set forth the Warrant to him directed, and the taking virtute Warranti, and not generally, that he took it by a Mandate, etc. 138  
2. In Replevin, where the Defendant made Conusance in right of the Lord, he may Justify the taking generally, ibid.    
judgement. 

(1.) At the Common Law, no Execution could be of a Judgement after a year and a day, but the remedy was to bring an Action of Debt upon Judgement, 187, 189  
2. Now a Scire Fac. is given upon a Judgement after the year by the Statue of W. 2. 189  
(3.) When a Judgement is once execucuted, the Goods are in custodia legis, and shall not be taken away by an Exchequer Process, or by the Commissioners of Bankrupts, 236     

L.  
Lapse, See Notice.  
Lease. 

A Covenant in a Lease for years, that the Lessee should pay the Rent without obliging his Executors or Administrators, 'tis determined by his Death, 231  
(2.) For 99 yea, if three persons or any of them, so long live, reserving a Rent, and an Herriot upon the death of either, the Beast of the Assignee shall not be taken for a Herriot, for the Lessee is to pay his best Beast, and that shall not be carried further than to the person named, 231    
Libel. 

Where a Fine and Corporal punishment was imposed upon the Offender after Conviction, 68    
Limitation. 

An Estate was settled upon trusties, to the use of A. and her Heirs, provided she marry with the consent of trusties, remainder over to B. This is a Limitation, and not a Condition, 32    
Limitation of Action, See 21 Jac. 16. 

Where a Trespass is laid with a continuando, for more than six years, and the Statute pleaded, and entire Damages, it must be intended only for that which falls within the six years, and that the Jury rejected the beginning of the Trespass, 111  
2. This Statute relates to a distinct, and not to a continued Account, 112  
3. It provides a Remedy when the Plaintiff is beyond Sea, at the time when his Right accrues, and saves it, till he returns; whether it may be extended in a Case where the Defendant is beyond Sea longer than six years, from the time the Plaintiff was entitled to the Action, 311, 312    
Local Actions. 

Whether Covenant will lie by an Assignee of a Reversion, against an Assignee of a Lessee in any other place than where the Land lieth, 337  
(2.) Debitum & contractus sunt nullius loci, ibid.  
3. Debt for Rent upon a Lease for years brought upon the Contract and Covenant between the same Parties, are transitory, ibid.  
4. If Privity of Contract is gone by making an Assignment and only a privity in Law remains, the Action must be brought in the County where the Land lieth, ibid.     

M.  
Mayor, See Corporation.  
Marriage, See Condition, 3. Evidence, 7. Limitation. Notice 

A Maid above 12 and under 16 taken from Parents, or Guardian, and Married, forfeits her Estate to the next in Remainder, during her Life, 84  
2. There must be proof of the Stealing an Heiress, either by slight or force, to bring the person within the Statute of Phil. & Mar. 169  
3. There must be a continued disassent of the Parent or Guardian, for if she once agree, 'tis an assent within the Statute, though she or they disagree afterwards, 169  
4. Marriage de facto is triable in the Temporal Courts, but de Jure, in the Spiritual Court only, 165    
Mandamus. 

Denied to restore a person to a Fellowship of a College, 265  
2. Denied to restore a Proctor to his Office in Doctor's Commons, 332  
3. It hath been granted to restore an Attorney, 333  
4. It will not lie to restore a Steward of a Courtbaron, 334    
Master and Servant, See Robbery, 2. 

Where the Act of the Servant shall charge the Master, 323  
2. Where the Master may have an Action for a Robbery done upon the Servant, 287    
Melius Inquirendum. 

Not granted but for a Misdemeanour in the Jury, 80  
2. It never helps a defective Inquisition, 336  
3. Whether it may be granted to a Coroner in the Case of a Felo de se, who makes his Enquiry super visum corporis, 238    
Merchants, See Custom, Pleas and Pleading.  
Misfeazance. 

Not Guilty, is a good Plea to any Misfeazance whatsoever, 324    
Misprision of Clerk, See Amendment.  
Mistrial. 

'Tis not a Mistrial where the day and place of the Assizes is left out of the Distringas, for the Jurata is the Warrant to try the Cause, 78    
Mortuary. 

'Tis not due, but by particular Custom of the Place, 268    
Monopoly. 

The Definition of it, 131     

N.  
Ne exeat Regum. 

IS a Writ grounded upon the Common Law, and not given by any particular Statute, 127  
(2.) It was brought to prevent a person who had married an Heiress without her Parents consent to go beyond Sea, 169    
Nolle prosequi. 

Whether it may be entered after the Jury is sworn, 117    
Non compos Mentis. 

If he releaseth his Right, that shall not bar the King, but he shall seize his Lands during Life, 303  
2. Surrender made by him is void, 305  
3. He may purchase Lands, and may grant a Rent-Charge out of his Estate, and shall not plead Insanity to avoid his own Acts, 309    
Notice, See Executor, 115. 

A Settlement was made in Trust for A. provided she married with the consent of trusties, Remainder to B. she married without consent. Whether the trusties ought not to give notice of this Settlement before the Marriage? or whether the Estate is forfeited without notice? 29, 30  
2. Where Conditions are annexed to Estates, to pay Money, notice is necessary, but where Estates are limited upon performance of collateral acts, 'tis not necessary, 30  
3. Lapse shall not incur upon a Deprivation, but after notice given to the Patron by the Ordinary himself, 31  
4. The Heir himself ought to have notice of such Conditions, which his Ancestor hath put upon his Estate, because he hath a good title by descent, 34  
5. Where it ought to be given of Debts to an Executor, 115    
Number. 

Where the singular number shall be intended by the plural; as by Children is meant Child, 63     

O.  
Obligation, Obligor and Obligee. 

DEbt upon Bond will not lie before the day of payment is passed but it may be released before, 61  
2. Where the Debt is confessed under and Hand Seal, whether that will amount to an Obligation, 154    
Office and Officer. 

Whether the Office of Marshal of B.R. can be granted in Trust, 145  
2. It cannot be granted for years, ibid.  
(3.) Non-Attendance, whether a Forfeiture or not? 146  
4. Non-Feazance is a Forfeiture, ibid.  
5. It lies in Grant, and cannot be transferred without Deed, 147  
6. Neither a Judicial or a Ministerial Officer may make a Deputy, unless there is an express Clause in the Grant that it may be executed per se vel Deputatum, 147, 150  
(7.) Marshal of B. R. may grant that Office for Life, but cannot give the Grantee power to make a Deputy, 147  
8. That Office may be granted at will, 149  
9 Deputy may be made without Deed, 150    
Ordinary. 

Probate of Wills did not originally belong to him, 24  
(2.) He had no power at Common Law over the Intestate's Estate, 25  
(3.) An Action lay against him at Common Law, if he got the Goods and refused to pay the Intestate's Debts, 25  
(4.) Was alone entrusted by the Common Law, as to the distribution of the Intestates Estate, 59  
(5.) Afterwards by the Statute of W. 2. was bound to pay Debts so far as he had Assets, 60  
(6.) Then, and not before an Action of Debt might be brought against him, if he did dispose the Goods without paying Debts, ibid.  
(7.) By the Statute of the 31st of Ed. I. he was bound to grant Administration to the next of Kin, ibid.  
8. Afterwards by the Statute of 21 H. 8. was compelled to grant it to the Widow or next of Kin or both, ibid.  
9 Before the Statute of Distributions he always took Bond of the Administrator to distribute as the Ordinary should direct, ibid.    
Outlary, See 5 Ed. 6. 

For Treason cannot be reversed without the Consent of the Attorney-General, 42  
(2.) For Treason the Party was taken within the year, but because he was apprehended, and did not render himself, he had not the benefit of the Statute, 47  
(3.) For Treason, and a Rule of Court for the Execution of the person, 72  
(4.) For Murder against three persons, it was reversed, because it did not appear that the Court was held pro Comitatu; 2dly, 'tis said Non comperuit, but doth not say nee eorum aliquis comperuit, 90     

P.  
Pardon. 

THE King hath power to pardon by general words, as felonica interfectio for Murder, 37  
(2.) Where his Power is restrained by Act of Parliament, yet a Non obstante is a Dispensation to it, 38  
3. A Suit was commenced for Dilapidations, which is to have satisfaction for Damages sustained, 'tis not pardoned by these general words, viz. Offences, Contempts and Penalties, 56  
(4) If an Interest is vested in the King, a Pardon of all Forfeitures will not divest it without particular words of Restitution, 101, 241, 242  
5. An Exception in a Pardon ought to be taken as largely as the Pardon itself, 242  
6. A Pardon of all Offences, except Offences in collecting of the King's Revenue, that must be of the stated Revenue, and not what arises by any Forfeiture, ibid.    
Parish, See Indictment.  
Parliament. 

Writ of Error upon a Judgement in B. R. returnable in Parliament, Prorogued from the 28th of April to the 29th of November, whether this was a Supersedeas to the Execution, because a whole Term intervened between the Teste and Return of the Writ of Error, 125    
Pedigree. 

Where persons are named by way of Title, and where by way of Pedigree, 255    
Perjury, See Information.  
Pleading. 

In pleading of the Statute of Usury, you must set forth, what Agreement was made, and what Sum was taken more than six pound in the Hundred, 35  
(2.) An Administrator pleaded a Judgement in Bar to an Action of Debt for 100 l. brought against him, and that he had not Assets praeterquam bona non attingen to 5 l. but did not show the certain value of the Goods, and yet held good, ibid.  
3. A Judgement upon a simple Contract may be pleaded in Bar to an Action of Debt upon a Bond, 115  
4. A Possession where 'tis only an Inducement to a Plea and not Substance, the Defendant may justify upon such a possession against a Wrongdoer, 132  
5. Where a special Justification is to an Action of Assault and false Imprisonment, the cause of Commitment must be set forth in the Plea, 160  
6. Where the defence consists in matter of Law, the Defendant may plead specially, but when 'tis Fact he must plead the geneal Issue, 166  
7. Where special matter which might be given in Evidence at the Trial, and which amounts to no more than the general Issue may be pleaded, ibid.  
(8.) When a Man is brought into Court by Capias he ought to plead instanter, because he hath given delay to the Court, 215  
9 So where he appears upon Recognizance, or in propria persona, or is in Custody for any Misdemeanour, he ought to plead instanter, ibid.  
10. In Covenant to pay so much Money to the Plaintiff or his Assigns as should be drawn upon the Defendant by Bill of Exchange, he pleaded that the Plaintiff secundum legem mercatoriam did assign the Money to be paid, etc. it ought to have been secundum consuetudinem mercatoriam, 226, 227  
11. If an Action is brought against an Innkeeper or Common Carrier the Declaration must be secundum legem & consuetudinem Angliae, 227  
12. In Trespass the Plaintiff prescribed as to the Freehold, and alleged a Custom in the Copyholders to have solam & separalem pasturam, etc. whether he could make a joint Title in the same Declaration, by virtue of a prescription and Custom, 250  
13. If the Plea is double the Plaintiff ought to demur, 251  
14. The Condition of a Bond was to acquit, discharge and save harmless, Non damnificatus generally is not a good Plea without showing how acquitted and discharged, 252  
(15.) Mutuatus for 400 l. the Defendant pleaded an Attainder of Treason in Abatement, the Plaintiff replied, that after the Attainder and before the Action he was pardoned, etc. and concludes unde petit Judicium & dampna sua; for this cause Replication was held ill, 281    
Pledges, See Replevin. 

Replevin in an inferior Court by Pleint removed in B. R. the Plaintiff was nonsuited, and a Sci. Fac. brought against his Pledges, and held good, 58  
2. There are no Pledges of Returno Habend ' at the Common Law, the Sheriff was not obliged to take Pledges in a Replevin by Plaint, 75    
Poor. 

A Man had 5 l. to remove out of one Parish into another, who gave Bond to repay it, if he returned within forty days, he stayed there so long, and it was held a good Settlement, 67  
2. A Note in writing must now be left pursuant to the Statute to make a Settlement, 247    
Possession. 

'Tis sufficient to maintain an Action against a Wrongdoer, 48    
Prerogative. 

Whether a Lease was made pursuant to a Power in a Proviso to make Leases for three Lives or 21 years, or for any Term upon three Lives, the Lease made was for 99 years determinable upon three Lives, 268, 269    
Power. 

In granting of Letters Patents of the sole printing exclusive of all others, 76, 129  
(2.) Where no individual person can claim a Right or Property it must be vested in the King by Law, 76  
3. Whether the King hath a Prerogative to restrain Trade to a particular number of Men in particular places, 127  
4. He may command his Subjects to return out of a Foreign Nation, ibid.  
5. He may regulate Trade by Letters Patents,    
Prescription, See Common 2. Pleading 12. 

For a way he may set forth his Estate without showing how he came by it, 52  
2. Where it cannot be by a Que Estate to have Retorna Brevium, 200  
3. Where it may be to hold Pleas, Leets and Hundreds without matter of Record, 201  
4. For all the Tenants of a Manor to fowl in a Free Warren, this Prescription is not too large, it might not be good upon a Demurrer, but 'tis otherwise after a Verdict, 246  
5. For a Profit apprender in alieno solo, the Tenants of a Manor may prescribe by a Que estate exclusive of the Lord, ibid.  
(6.) There must be a certain and permanent Interest abiding in some person to maintain a Prescription, and therefore it will not lie ratione commorantiae, 290  
7. To have Common sans numbered is good, but ad libitum suum which is almost the same thing, is void, ibid.  
(8.) It may be joined with a Custom in the same Declaration, 251  
9 Where 'tis laid in a discharge, as to be exempted from Toll, or for an easement, as for a Way to a Church, not only a particular person, but the Inhabitants of a whole Vill may prescribe; but where it relates to the Profit or Interest in the Land itself, 'tis not so, 292    
Presentment. 

In a Court Leet which concerns the person and not the Freehold, whether traversable, 137, 138    
Privity of Contract, See Local Action 4. 

Action against an Administratrix of a Term for Rent incurred after the Assignment of the Lease, the Privity of Contract of the Intestate was not determined by his death, but Administratrix shall be charged with his Contracts as long as she hath Assets, 326  
'Tis not gone either by an Assignment of the Term or death of the Lessor, neither is it transferred to the Assignee by the Statute of H. 8. for that Statute only annexeth such Covenants which concern the Land with the Reversion, 337, 338    
Proof, See Prohibition.  
Prohibition. 

Not to be granted because a Temporal Loss may ensue, 67  
(2.) Where some words are actionable at Law, and some punishable in the Spiritual Court, a Prohibition shall be granted, for otherwise it would be a double vexation, 74  
(3.) Libel causa jactationis maritagii the Suggestion for a Prohibition was, that he was indicted at the Old Bailie for marrying two Wives, that he was convicted in a Court of that Offence which had a proper Jurisdiction, etc. and a Prohibition was granted, 164  
4. A person lived in one Diocese, and occupied Lands in another, where he was taxed towards the finding of Bells for that Church, for which a Suit was commenced in the Bishop's Court where the Lands were, and he suggested the Statute of H. 8. that no Man shall be cited out of his Diocese, except for some Spiritual Cause neglected to be done there, and a Prohibition was granted, for this was not a Spiritual Cause neglected to be done, because Church Ornaments are a personal Charge upon the Inhabitants, and not upon the Land Owners who dwell else where, but the repairing of the Church is a real Charge upon the Land. 211  
5. Not granted for Mariners Wages, 244  
6. Libel for a Tax upon the Parishioners for not repairing of their Church, who suggest that they had a Chapel of Ease in the same Parish; the Prohibition was denied, for of common right they ought to repair the Mother Church, 264  
7. Proof of Matter of Fact by one Witness denied to be allowed in the Spiritual Court is a good cause for a Prohibition, 284  
8. Where the Release of a Legacy offered to be proved by one Witness was denied in the Spiritual Court, ibid.  
(9) Proof of Payment or Subtraction of Tithes denied, and a Prohibition granted, ibid.  
10. Whether a Prohibition ought to be allowed after Sentence, an Appeal being then the more proper remedy, 284    
Property, See Interest.   

Q.  
Quorum. 

MUst be one Justice of the Peace of the Quorum otherwise cannot be a Sessions, 14, 152    
Quantum meruit. 

Will lie for Rent reserved upon a real Contract where the Sum is not certain, but if a Sum in gross is reserved then Debt must be brought, 73     

R.  
Record. 

ERror shall not be assigned against the Essence of a Record, 141    
Recovery Common. 

Reversed without a Scire Facias to the Tertenants, but it seems not to be good, 119  
2. For there must be a Scire Facias against the Heir and Tertenants when a Writ of Error is brought to reverse it, 274    
Relation. 

Where an Estate shall pass by Relation, where not, 299, 300    
Release. 

Of a Legacy by one Executor, and also of all Actions, Suits and Demands whatsoever, those general words which follow are tied up to the Legacy, and release nothing else, 277  
2. Of a Demand will not discharge a growing Rent, 278  
3. A Receipt was given for 10 l. in which there was a Release of all Actions, Debts, Duties and Demands, nothing is released but the 10 l. 277  
4. Judgement against four Defendants, who all joined in a Writ of Error, and the Plaintiff pleaded a Release of Errors by one, it shall not discharge the rest of a personal thing, but if there had been four Plaintiffs to recover, the Release or death of one is a Bar to all, 109, 135, 249  
5. A Release of all Actions will discharge an Award of Execution upon a Scieri Facias, 185, 187  
6. Of all Actions and Demands doth not discharge a Legacy, it must be by particular words, 279  
7. One of the Defendants, who made Conusance, released the Plaintiff after the taking of the Cattle, this was held void upon a Demurrer, for he had no Demand or Suit against the Plaintiff, having distrained in the right of another, ibid.    
Remainder, See Entry 3. Fines levied 4. 

Must take place eo instanti the particular Estate is determined, or else it can never arise, 309  
2. By the Conveyance of the Reversion in Fee to him, who had the Estate for Life before the Birth of a Son, the particular Estate is merged, and all contingent Remainders are thereby destroyed, 311    
Replevin. 

Where 'tis brought by Writ the Sheriff cannot make deliverance without the taking of Pledges de prosequendo & return ' Habend ', 35    
Replication. 

Where the Plaintiff confesseth and avoideth he ought not to traverse, for that would make his Replication double, 318    
Request. 

When a thing is to be done upon Request, the time when the person requires it to be done is the time of the performance, 295    
Reservation. 

Of a Rent upon a Lease for three years payable at Michaelmas and Lady-Day, Debt was brought for 2 years without showing at which of the Feasts it was due, 'tis good after, Verdict but ill upon a Demurrer, 70    
Resignation, See Abeiance. 

To the Ordinary, and Patron presented, 'tis void if the Ordinary did not accept the Resignation. 297    
Reversion, See Bargain and Sale. Surrender 2. 

Tenant in Tail, who had likewise the Reversion in Fee, if he acknowledge a Judgement the Reversion may be extended, 256  
2. But a Reversion in Fee, expectant upon an Estate Tail, is not Assets; until it comes into possession, 257  
3. By what words a Reversion in Fee passeth in a Will, 228    
Revocation. 

A Will shall not be revoked by doubtful words, 206  
(2.) It might be revoked by Word without Writing before the Statute of Frauds, 207  
3. Before that Statute a Will might be revoked by a subsequent Will, which was void in itself, yet good to revoke the former, 207, 218  
(4.) A subsequent Will which doth not appear shall not be any Revocation of a written Will which doth appear, 204, 205, 206  
5. Whether a subsequent Will which is void in itself may revoke another since the Statute of Frauds, 218  
6. Such a Will must be good in all circumstances to revoke a former, 260, 261    
Riot, See Information.  
Robbery. 

The Hundred was sued, and it did not appear that the Parish where the Fact was laid to be done was in the Hundred, or that it was done upon the High way, or in the day time, this was helped after Verdict, 258  
(2.) A Servant delivered Money to a Quaker to carry home for his Master, they were both rob, viz. the Servant of 26 s. and the Quaker of 106 l. the Servant made Oath of the Robbery, and the Quaker refused, the Master brought the Action, it doth not lie for him, 287, 288     

S.  
Scire Facias See Bail 3, 4. Baron and Feme 1, 4, 5. judgement 2. Pledges 1. Recovery. 

MUst be to the Tertenants before the Common Recovery shall be reversed by Writ of Error, 119  
(2.) Scieri Facias quare Executionem non habet recites the first Judgement, but prays no new thing, only to have Execution upon that Judgement, 187  
3. 'Tis not an original but a judicial Writ and depends upon the first Judgement, 187  
4. 'Tis suspended by Writ of Error and if the original Judgement is reversed that is so also, ibid.  
5. Debt will lie upon a Judgement had on a Scire Facias, 188, 189  
6. A Judgement upon a Scire Facias is a distinct Action from the original cause, 189  
7. Judgement in Dower and a Writ of Enquiry of Damages, the Woman marries and dies before the Writ of Enquiry executed, the Husband administered and brought a Scire Facias upon the Judgement, whether it lieth or not, 281    
Sergeants at Law, See judges.  
Surplusage, See Inquisition.  
Steward, See Court.  
Supersedeas, See Parliament.  
Surrender, See Assent 1, 2. 

Where it may be pleaded without an acceptance, 297  
2. No man can take it but he who hath the immediate Reversion, 299  
3. If pleaded without an Acceptance 'tis aided after Verdict, which shows 'tis no Substance, 301  
4. By one Non compos mentis 'tis void ab initio, 303     

T.  
Tail. 

DEvise to D. for Life, the Remainder to her first Son and the Heirs of the Body of such first Son (endorsed thus) viz. Memorandum, that D. shall not alien from the Heirs Males of her Body, she had a Son who had Issue a Daughter, 'tis not an Estate Tail Male, for the Memorandum shall not alter the Limitation in the Will itself, 81, 83  
(2.) The Testator had two Sons and four Daughters, he devised a House to his eldest Son; and if he die then he devised his Estate to his four Daughters; and if all his Sons and Daughters died without Issue then to A. and her Heirs, this is not an Estate Tail in the Daughters by Implication, 105  
3. Where a Devise is to several persons by express Limitation, and a Proviso if all die without Issue of their Bodies, the Remainder over, this is no cross Remainder, or an Estate by Implication, because 'tis a Devise to them severally by express Limitations, 106  
(4.) Devise to his eldest Son, and if he die without Heirs Males (but doth not say of his Body) then to his other Son, etc. 'tis an Estate Tail in the eldest, 123    
Tenant in Common. 

A Devise to hold by equal parts makes a Tenancy in Common, so that there can be no Survivorship in such case, 210    
Tenant at Will. 

Cestuy que Trust by Deed is Tenant at Will to the trusties, 149  
(2.) Where a Grant by Tenant at Will though void amounts to a determination of his Will, 150  
3. Whether Tenant at Will can grant over his Estate, ibid.  
4. What Act shall amount to the determination of his Will, ibid.  
5. Any thing is sufficient to make an Estate at Will, 196  
6. Tenant in Fee made a Lease for 100 years in Trust to attend the Inheritance, and continued still in Possession, he is Tenant at Will to the Lessee for 100 years, and if he make any Lease, and levy a Fine Sur Cognizance, etc. the first Lease is displaced, and turned to a Right, and the Fine bars it, 196    
Trade See Grants 2. Prerogative 3, 5. Indictment 12. Information 7. 

Confinement of Staple to certain places was the first regulation of Trade, and from thence came Markets, 127  
(2.) The King is sole Judge where Fairs or Markets ought to be kept, ibid.  
(3.) Custom to restrain a Man from using of a Trade in a particular place is good, 128  
(4.) A Man may restrain himself by Promise or Obligation not to use a Trade in a particular place, ibid.  
(5.) Regulation of Trade is the chief end of Incorporations, ibid.  
(6.) Such incorporate Bodies have an inherent power to judge what persons are fit to use Trades within their Jurisdictions, ibid.  
(7.) Whether Grants of the King prohibiting Trade are void, 131  
(8.) Cannot be restrained by any By-Law, 159  
9 At the Common Law any Man might exercise any Trade he please, 312  
10. Petty-Chapmen are not within the Statute of 5 Eliz. 315  
(11.) Journymen who work for hire are not within the Statute, but the Master who sets them to work and pays their Wages is punishable, 316, 317  
(12.) Subject hath not power absolutely to trade without the King's Licence. 127    
Travers, See jeofails 3. Presentment. Replication. 

Cannot be to a Return of a Writ of Restitution, 6  
2. He who traverseth the King's Title must show a Title in himself, 146  
(3.) After a Travers 'tis not good pleading to conclude to the Country, 203  
4. Not concluding with a Travers is but matter of form, 'tis aided by the Statute of jeofails upon a Demurrer, 319  
5. Want of a Travers seldom makes a Plea ill in substance, but an ill Travers often makes it so, 320  
(6.) It must be taken where the thing traversed is issuable, 320    
Treason, See Outlawry. 

Attainder of Treason reversed because on arraignment or demanding Judgement, and because there was Process of Ve. fa. instead of a Capias, and likewise for that it did not appear that the Party was asked what he had to say why Sentence, etc. 265    
Trespass. 

For breaking and entering a Free Fishery, and taking the Fish, ipsius querentis not good, for he had not such a Property as to call the Fish his own, 97  
(2.) In Trespass Quare vi & armis clausum fregit, to his Damage of 20 s. an Action lieth, let the Damage be never so little, 275    
Trial, See Appeal, 2, 3. Election, 1. 

Where the Trial and conviction of a Criminal is had he must be executed in that County, and not elsewhere, unless in Middlesex by prerogative of B. R. which sits in that County, 124  
2. Where the Court refused to grant a new Trial in a Case where excessive Damages are given, 101    
Trover and Conversion. 

Judgement in Trespass is no Bar to an Action of Trover for the same Goods, 1  
(2.) They are different Actions in their very nature, 2  
(3.) It lies upon a demand and denial, but Trespass doth not, ibid.  
4. Trover pro diversis aliis bonis hath been held good, 70  
5. 'Tis a good Plea in Trover to say that Damages were recovered against another Person for the same Goods, and the Defendant in execution, though the money is not paid, 86  
6. Whether it lies for taking a Ship after a Sentence in the Admiraly for taking the said Ship, 194  
7. Brought by two, and after Verdict one died, whether Judgement shall be arrested, 249     

V.  
Variance, See Appeal, 1. Apportionment, 2. 

BEtween the Original in Trespass and the Declaration, that being certified three Terms past, and no Continuances, for that reason not good, 136  
2. Between Original and the Declaration, not aided by the Statutes of Jeofailes, ibid.  
3. Sci. fa. to have execution of a Judgement obtained in the Court of Oliver late Protector of England, and the Dominions and Territories thereunto belonging, and in reciting the Judgement, it was said to be obtained before Oliver, late Protector of England, and the Dominions, etc. but left out Territories, this was held to be good in substance, for the Judicature is still the same, 227    
Venire Facias. 

The Court would not order the Plaintiff to file a Ve. fa. 246    
Verdict, See Assumpsit, 2. Action for a Tort, 5. Amendment, 1.6. Common, 3. Evidence, 6. Prescription, 4. Reservation, 1. Robbery, 1. Surrender, 3. 

The true reason why it helps a defective Declaration, 162  
(2.) A Promise to pay quantum rationabiliter valerent instead of valebant, at the time of the promise, good after Verdict, 190  
3. It cannot be diminished, neither can any thing be added to it, 205  
4. An Hundred was sued for a Robbery, and tho' it did not appear that the Fact in the Declaration mentioned was done in the Hundred, or that the Robbery was in the Highway, or done in the daytime, yet good after a Verdict, 258  
5. The Defendant sold Cattle, affirming 'em to be his own, ubi revera they were not; but 'tis not said that he affirmed them to be his own sciens the same to be the Goods of another, or that he sold them fraudulenter vel deceptive, yet good after Verdict, 261    
Vicarage. 

'Tis not sufficient to allege Seisin in Fee of a Rectory, and that he ought to present to the Vicarage, but he must say that he is Impropriator, or that he was seized in Fee of a Rectory impropriate, 295    
Visitor. 

No Appeal lies from his Sentence, for he is Fidei Comissarius, especially in the Case of a Fellow of a College which is a thing of private design, and doth not concern the Public, 265    
Use. 

If a Letter of Attorney is in a Deed, or a Covenant to make Livery, nothing passes by way of Use, 237     

W.  
Ways, See Action for wrong, 9 Prescription, 1. 

IN Actions for not repairing them, it must be alleged that the Defendant reparare debet, 291  
(2.) Action on the Case doth not lie by any particular person for not repairing, unless he hath a particular damage, but an Indictment is te proper remedy, ibid.  
3. Custom for all occupiers of a Close in such a Parish to have a Footway, not good, for the Plaintiff ought to prescribe in him, who hath the Inheritance, 294    
Waste, See Baron and Feme, 7. 

It lay at Common-Law only against Tenant by the Courtesy, or in Dower, 90  
2. It was given by the Statute of Gloucester against Tenant for life, or years, and triple Damages, ibid.  
3. It lies against an Executor de son tort of a Term for years, 93  
(4.) It lies against an Administrator of a rightful Executor, though the Statute doth charge only Executors the son tort, and Administrators, that they shall be liable as the Executor or intestate, 113    
Wills, See Exposition, Devise. 

A subsequent Will may be made so as to consist and stand with a former, 204  
(2.) It may also revoke part, and confirm part of aformer Will, ibid.  
3. If two Wills are made without Dates, they are both void, otherwise of Codicils, 208  
4. Two Witnesses to a Will and two to a Codicil annexed to the same Will, one of the Witnesses to the Codicil was a Witness to the Will, the third person is not a good Witness to the Will, for he never did see it, 262    
Witnesses. 

A Witness at a Trial had made a Bargain with the Plaintiff who promised her 1000 l. if she recovered; she was not allowed to be sworn, 85  
2. Informer shall be a good Witness to convict a Man for Deer-stealing, tho' he has a Moiety of the Forfeiture, 114, 115  
3. The Patry to an Usurious Contract, shall not be a Witness to prove the Usury, for he is testis in propria causa, 114      

BOOKS Printed for, and Sold by Charles Harper at the Flower-de-Luce over against St. Dunstan 's Church in Fleetstreet.  

Law-Books.  
THE Reports of Sir Peyton Ventris, Knight, late one of the Justices of the Common-Pleas, in two Parts. The first containing select Cases adjudged in the Kings-Bench, in the Reign of King Charles II. The Second Part, containing choice Cases, adjudged in the Common Pleas, in the Reign of King Charles II. and King James II. and in the three first years of his now Majesty King William and the late Queen Mary, while he was a Judge in the said Court, with the Plead to the same; with the allowance and Approbation of the Lord Keeper and all the Judges. Tho Volumes. Folio. Price 1 l. 10 s.  
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, and 30 Years of the Reign of King Charles II. when Sir Francis North was Chief Justice of the said Court: To which are added several select Cases in the Courts of Chancery, Kings-Bench and Exchequer; Carefully collected by a Learned Hand. Printed 1698. Price 12 s.  
The Lord Coke's Reports in English. Folio. Judge Crook's Reports in three Volumes, the third Edition, with Reference to all the Late Reports.  
The Lord Coke's Commentary on Littleton Folio.  
— His Commentary on Magna Charta. Folio.  
— His Pleas of the Crown, or the third part of the Institutes. Folio.  
— His Jurisdiction of Courts, or fourth part of the Institutes.  
— His Eleven Reports in French. Folio. Bulstrode's Reports with new References. Folio.  
Leonard's Reports in Four Parts, with New References. Folio.  
The Year-Books in ten Volumes, the last Edition, with new Notes and Tables to them all. Folio.  
The Reports of the Lord Keeper Littleton, in the time of King Charles the First, Folio.  
The Reports of the Learned Judge, Sir Henry Hobert, the Fourth Edition corrected and amended. Folio.  
Reports in the Court of King's-Bench at Westminster, from the 12th to the 30th Year of King Charles the Second: By Joseph Keble of Grays-Inn, Esq; In three Volumes. Folio.  
Kelway's Reports, with new References to all the late Reports; By Joseph Washington, Esq;  
Reports of several especial Case in the Court of Common Pleas, in the Reign of King Charles the II. By S. Carter of the Inner-Temple, Esq; Folio.  
An Assistance to Justices of the Peace, for the easier performance of their Duty: the first part containing the particular Clauses of all such Statutes, from Magna Charta, until the first of King James II. that do any ways concern a Justice of Peace; in the other Part, the whole Office of a Justice of Peace is methodically digested, with the most approved Precedents under proper Heads; to which is now added a Table for the ready finding out the Precedents, with a large Table of the Matters never before Printed: By Jos. Keble of Grays-Inn, Esquire.  
An exact Abridgement of the Records in the Tower of London, being of great Use for all that are concerned in Parliamentary Affairs, and Professors of the Laws of this Realm: Collected by Sir Robert Cotton, Knight and Baronet. Folio.  
The Commentary of Edward Plowden, Esq; with References: whereunto is added his Queries. Fol.  
The Laws of Jamaica in II. Parts, in Fol. with a large Map of the Island.  
An exact Abridgement of the Statutes of King William and Queen Mary, and of King William III. in Force and use. Begun by Joseph Washington of the Middle-Temple Esp; and since his Death revised and continued to the End of the last Sessions of Parliament, April 27. 1696. And thence continued to the 5th of July, 1698. 8vo. Price 6 s. 6 d.  
The Scrivener's Guide; being choice and approved Forms of Precedents of all sorts of Business now in Use and Practice, in a much better Method than any yet Printed: being useful for all Gentlemen, but chief those who Practise the Law. 8vo. Price 5 s. Styles' Practical Register; begun in the Reign of King Charles the First, Consisting of Rules, Orders, and principal Observations concerning the Practice of the Common-Law in the Courts of Westminster, particularly the King's-Bench, as well in Matters Criminal as Civil: Carefully continued down to this time. The third Edition. 8vo. Price 6 s.  
An exact Abridgement of all the Statutes in Form and Use, from the beginning of Magna Charta; begun by Edmund Wingate, and since continued by J. Washington, to the Year 1689. In this Impression many hundred of false References are corrected, Price, 7 s.  
Two Dialogues in English between a Doctor of Divinity, and a Student of the Laws of England, of the Grounds of the said Laws, etc. Price 2 s. 6 d.  
The New Natura Brevium of the most Reverend Judge Mr. Anthony Fitzherbert, Corrected and revised.  
The Laws against Bankrupts, or a Treatise wherein the Statutes against Bankrupts are explained: By T. Gooding, Sergeant at Law, 8vo.  
The Entering Clerk's Vade Mecum; being an Exact Collection of Precedents, in 8vo. By W. Brown.   

Divinity and Miscellanies.  
THE Life of our Blessed Lord and Saviour Jesus Christ. An Heroic Poem: dedicated to Her most Sacred Majesty, in Ten Books. Attempted by Samuel Wesley, M. A. each Book illustrated by necessary Notes, explaining all the more difficult Matters in the whole History. Also a Prefatory Discourse concerning Heroic Poetry. The second Edition revised by the Author, and improved with the Addition of a large Map of the Holy-Land; and a Table of the Principal Matters; with sixty Copper-Plates, by the celebrated Hand of W. Faithorn. Fol.  
The Pious Communicant rightly prepared; Or, a Discourse concerning the Blessed Sacrament; where the Nature of it is described; our Obligation to frequent Communion enforced, and Directions given for due Preparation for it, Behaviour at, and after it, and profiting by it. With Prayers and Hymns, suited to the several parts of that Holy Office. To which is added a short Discourse of Baptism. With a Letter concerning Religious Societies. In Twelves. By Samuel Wesley, A. M. Chaplain to the most Honourable John Lord Marquis of Normanby, and Rector of Epworth in the Diocese of Lincoln: Author of the Life of our Blessed Lord and Saviour Jesus Christ. In Folio.  
The Second and third part of the Works of Mr. Abraham Cowley. The second containing what was written and published by himself in his younger Years, reprinted together: The sixth Edition. The third Part containing his six Books of Plants, viz. The first and second of Herbs, the third and fourth of Flowers, the fifth and sixth of Trees: Now made English by several Hands, with necessary Tables to both Parts, and divers Poems in praise of the Author. Folio.  
The Lives of the Roman Emperors from Domitian, where Suetonius ends, to Constantine the Great. Containing those of Nerva and Trajan, from Dion Cassius: A Translation of the Six Writers of the Augustean History. And those of Dioclesian and his Associates, from Eusebius and others: with the Heads of the Emperors in Copper-Plates: Dedicated to His most Sacred Majesty in two Volumes. By I Bernard, A.M.  
Resolves: Divine, Moral, Political. With several New Additions, in Prose and Verse. In this Eleventh Edition, References are made to the Poetical Citations heretofore much wanted. By Owen Felltham, Esquire. Folio Price 12 s.  
The Works of the Famous Nicholas Machiavelli, Citizen and Secretary of Florence. Newly and faithfully Translated into English. Folio. Price 15 s.  
The Whole Duty of Man, according to the Law of Nature, by that Famous Civilian, Sam. Puffendorf; now made English. 8vo. Price 3 s. 6 d.  
Dr. Willis's Practice of Physic, being the whole Works of that Eamous Physician, rendrens into English: second Edition, with forty Copper-Plates. Fol.  
The Historical and Miscellanious Tracts of the Reverend and Learned Peter Heylin, D. D. now collected into one Volume. And an Account of the Life of the Author, never before published. Folio.  
The Religion of Protestants, a Safe way to Salvation; with a Discourse of the Apostolical Institution of Episcopacy. By W. Chillingworth, M. A. To which in this Edition is added his Letter, showing the Reason why he left Popery. Folio.  
The History of Queen Elizabeth, by W. Cambden, King at Arms. Fourth Edition. Folio.  
An Impartial Collection of the great Affairs of State, from the beginning of the Scotch Rebellon in the Year 1639. to the Murder of King Charles the First. Fol. In two Volumes. By Dr. Nalson.  
Dugdale's Monasticon Anglicanum. Folio. In three Volumes.  
The History of King Edward II. King of England, and Lord of Ireland, Folio.  
Dr. Willis's Practice of Physic. 8vo. With his Treatise of the Plague. Price 7 s.  
Arithmetic; Or, the Ground of Arts: Teaching that Science, both in whole Numbers and Fractions, Theorically and Practically. Originally Composed by Dr. Record, and others: And now Perused, Corrected, new Methodised, much Improved: And thereunto added a New Treatise of Decimals, with the Demonstration of each Rule, and the relation it has to Vulgar Fractions; Also why Decimals are wrought as whole Numbers, etc. By Edw. Hatton, Philomercat. Price 5 s.  
Bishop Usher's Power of the Prince, and the Obedience required of the Subject, with a large Preface by Bishop Sanderson. 8vo.  
Animadversions on a Book, Entitled The Theory of the Earth. By Herbert Lord Bishop of Hereford.   

School-Books.  
LInguae Romanae Dictionarium Luculentum Novum: A New Dictionary in five Alphabets: representing, 1st The English Words and Phrases before the Latin. 2. The Latin Classic before the English. 3. The Latin Proper Names of Persons, Counties, etc. 4. The Latin barbarous. 5. The Law Latin. The whole completed and improved from the several Works of Stevens, Cooper, Gouldman, Holyoke, Dr. Littlenon; a Large Manuscript in three Volumes of Mr. John Milton, etc. In the use of all which, for greater Exactness, recourse has always been had to the Authors themselves, in 4to.  
Cole's Dictionary in 8vo, English and Latin, and Latin and English.  
The Pantheon. Representing the Fabulous Histories of the Heathen Gods, and most Illustrious Heroes, in a short, plain, and familiar Method; by way of Dialogue: Written by F. Pomey, for the use of Schools. The second Edition. Wherein the whole Translation is Revised and much amended, and the Work is Illustrated and Adorned with Elegant Copper-Cuts of the several Deities. 8vo. Price 3 s.  
English Examples to Lily's Grammar Rules for children's Latin Exercises, with an Explanation to each Rule. For the Use of Eaton-School.  
Gratii Falisci Cynegeticon, cum Poematio Cognomine M. A. Olympii Nemesiani Carthaginensis: Notis perpetuis, variisque Lectionibus adornavit Thomas Johnson M. A. Accedunt Hier. Fracastorii Alcon, Carmen Pastoritium: Jo. Caii, Angli, de Canibus Libellus: Ut & Opusculum vetus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 dict. seu, de Cura canum, Incerto Auctore. In Usum Illiustrissimi Ducis Glocestriae.