The Second PART OF Modern Reports, BEING A COLLECTION Of Several SPECIAL CASES Most of them ADJUDGED in the COURT OF Common Pleas, In the 26, 27, 28, 29, & 30th Years of the Reign OF King Charles II. When Sir Fra. North was Chief Justice of the said Court. To which are added, Several select CASES in the Courts of Chancery, Kings-Bench, and Exchequer in the said Years. Carefully Collected by a Learned Hand. LONDON, Printed by the Assigns of Rich. and Edw. Atkins Esquires, for Charles Harper at the Flower de Luce over against St. Dunstan's Church in Fleetstreet, 1698. TO THE Right Honourable JOHN Lord SOMERS Baron of Evesham, Lord High Chancellor OF ENGLAND. My Lord, WHEN both the Favour and Severity of the Laws were by partial and unusual Methods applied to the Persons, and not to the Cases of the accused; when the Life and Honour of an unfortunate Man depended on the Arbitrary Dictates of some Men in Authority, and when the Sentence pronounced was more Criminal than the Offence of which the Party was too easily convicted; then was your Lordship as far from any Advancement to a judicial Office, as your Judgement and Inclinations were from the Approbation of such Proceed: But no sooner were places of Honour and Profit in the Law made the unsought Rewards of good and learned Men, but your Lordship's Merits entitled you to both; whose Moderation and Temper will make your Administration just and easy in that honourable Court, to which Fortune had no share in your Promotion; and whose natural Abilities are so improved by a continued and inflexible Study, that your Knowledge is not alone confined to the municipal Laws of this Nation, but is generally extensive to all humane Learning. What Services may not a Prince expect from the Wisdom and Vigilancy of such a Counsellor? And what Benefit may not a divided People find by your equal Dispensation of Justice, who (if they can be united in any thing) it must be in the general Satisfaction which all have in your Promotion, because they know those Causes which come before your Lordship will receive a due Hearing and Attention without Passion or Prejudice to Persons; such Emotions being as much beneath the Greatness of your Lordship's Mind, as they are beyond the Duty of Justice, and fit only for such who will neither be guided by the Rules of Equity or Reason; so true is that Saying, Utitur animi motu, qui uti ratione non potest. The Respect which is due to the Office of Magistrates challengeth an universal Obedience; but that particular Affection and Esteem which we have for their Persons is due only to their Virtues and Merits: And such is that which I have, and all Men (especially those of my Profession) ought to have for your Lordship and the present Judges in Westminster-Hall, whose Learning and Integrity in judicial Determinations may bring the Laws nearer to Perfection; and whose Examples are the just Commendation of the present, and I hope will be the Imitation of succeeding Ages. I could never understand the right meaning of that Sentence, Boni Judicis est ampliare Jurisdictionem for if that be true, then to what purpose were those Arguments at the Bar of the House of Peers against some late Judges for retaining Bills in Equity, the subject Matter whereof was only tryable at the Common Law? Such Complaints are now no more, because your Lordship will not only support the Honour and Dignity of that Court, wherein you preside, in the Beauty of Order, but will not enjoin any other from exercising its proper Jurisdiction. Thus will the Credit of the Laws of England be revived, and Men will acquiesce under the legal Determinations of each Court; very few Writs of Error will be brought for Error in Law, because of the Justice and Stability of the Judgement in that Court wherein it was given; and very few Appeals, because your Lordship knows so well how to temper Equity with Justice, that he must be a very angry Man, who goes away dissatisfied with your Lordship's Decree. But since the Actions of Men in great Places are subject to the various Censures of Mankind, if any prejudiced Person should revive those Disputes, or quarrel at your Lordship's Administration, such Complaints would leave no other Impression upon the Minds of impartial Men than to convince them of the Wrong done to your Lordship, and the Folly of such Misapprehensions. My Lord, I have prefixed your Lordship's Name to this mean Performance, taking this occasion to show that great Honour and Respect, which I have for your Lordship; not that I am so vain to think any thing herein to be worthy of your Lordship's Leisure, neither do I think it Manners to beg your Lordship's Patronage, because a good Book will protect itself at all times, and a bad one deserves no Protection. I know few Books are either praised or perused, but what are warranted by the common Repute and Esteem of the Writer, which must be imputed to the Prejudice and Partiality of Men, and which argues a Diffidence of our natural Parts, as if we did not dare to make a right use of our own Judgements: For this Reason I have concealed my Name, that a Judgement may not be made of the Book by the Repute of the Writer. But I hope your Lordship will not condemn my Ambition, when I say, I am not altogether unknown to your Lordship, who am Your Lordship's Most humble Servant, J. W. Middle-Temple, June 22. 1693. A TABLE OF THE NAMES OF THE CASES. A. ABbot versus Rugely, 307 Abraham versus Cunningham, 146 adam's versus adam's, 169 Addison versus Otway Mil, 233 Alford versus Tatnel, 49 Arris and Arris versus Stukley, 260 After versus Mazeen, 311 Astry versus Ballard, 193, 312 Atkins versus bail, 267 Attorney General versus Read Mil, 299 ........ versus Turner Mil, 106 ....... versus Alston, 247 Anonymus, 7, 17, 62, 94, 100, 100, 167, 199, 206, 279, 293, 306, 314, 316, 317 B. Bailiffs (Joan) Case, 315 Ballard versus Oddey, 307 Barker versus Keat, 249 Barker versus Warren, 270 Barker versus Basket, 200 Basset versus Salter, 136 Beaver versus Lane, 217 Bell versus Knight, 182 Benson versus Idle, 37 Beaumond versus ...... 140 Bill versus Nichol, 246 Birch versus Wilson, 274 Birch versus Lingen, 316 Blackbourn versus Conset, 304 Bridges versus Beddingfield, 27 Brittam versus Charnock, 286 Brook versus Turner Mil ', 170 Brown versus Johnson, 145 Brown versus Waite, 130 C. CAlthrop versus Phillips, 217 Calthrop versus Heyton, 54 Chapter of Southwel versus the Bishop of Lincoln, 56 Cockram versus Welby, 212 Columbel versus Columbel, 77 Cook and others versus Herle, 138 Cooper versus Hawkeswel, 58 Crosier versus Tomlinson Executor, 71 Crossman versus Churchil Mil ', 97 Crowder versus Goodwin, 58 Curtio versus Bourn, 61 Curtis versus Davenant, 8 D. DAshwood versus Cooper, 283 Daws versus Sir Paul Pindar, 45 Daws versus Harrison, 65 Dorchester's (Marquis of) Case, 215 Dunning versus Lascomb, 267 Duck versus Vincent, 33 E. Edwards' versus Roberts, 24 Edwards versus Weeks, 259 Ellis versus Yarborough, 177 Escourt versus Cole, 58 Evered versus Hone, 293 F. FOrrest qui tam, etc. versus Wire, 246 Frosdick versus Sterling, 269 G. GIlmore versus the Executor of Shooter, 310 Godfrey versus Godfrey, 303 Goffe. versus Elkin, 239 Goodwin qui tam, etc. versus Butcher, 67 H. HAll versus Carter, 304 Hambleton vers. Scrogs Mil ', 296 Hammond versus Howel, 218 Harding versus Ferne, 177 Harman's Case, 176 Harris' Case, 101 Harwood and Binks versus Hillyard, 268 Hayes versus Bickerstaffe, 34 Hickman Mil' versus Thorn and others 104 Hill versus Thorn, 309 Higginson versus Martin, 195 Hill versus Pheasant, 54 Hocket & Vxor versus Stiddolp & Vxer, 66 Hollis Mil' versus Car, 86 Howard Mil' versus the Queens trusties, 173 I. JAmes versus Johnson, 143 James versus Trollup, 320 Ingram versus Tothil, 93 Jones' Case, 198 Ipsley versus Turk, 193 Ironmongers Company versus Naylor, 185 K. KEndrick versus Bartland, 253 The King versus the Bishop of Rochester, 1 The King versus Tourvil, 52 The King versus Moor, 128 Keen versus Kirby, 32 L. LAne versus Robinson, 102 Lee versus Brown, 69 Lever versus Hosier, 47 Loyd versus Langford, 174 Long 's Case. 181 M. MARY Magdalen Bermonsey Church, 222 Major versus Grigg, 213 Mayor and Commonalty of London, versus Gatford, 39 Mason versus Stratton, 36 Mason versus Caesar, 65 Mendyke versus Stint, 271 Milward versus Ingram, 43 Mires versus Solebay, 242 Moor versus Pitt, 287 Morris versus Philpot, 108 N. NAyler versus Sharpless, 23 Nichols versus Ramsel, 280 Norris versus Palmer, 51 Norris versus Trist, 78 Northumberland's (Countess of) Case, 182 Nurse versus Yearworth, 8 O. OSbaston versus Stanhop, 50 Osborn versus Wright, 296 Otway Mil' versus Holdips, 266 P. PAge versus Tulse & al'. 83 Paget versus Vossius, 223 Parrington versus Lee, 311 Perk versus Hill, 136 Penrice and Wyn's Case, 306 Piggot versus the Earl of Salisbury, 109 Plummer versus Whitchot Mil ', 119 Prince versus Rawson, 51 Put versus Roster, 318 Q. QUadring versus Downes & all, 176 R. RAnds Mil' versus Trip, 199 Randall Case, 308 Read versus Dawson, 139 Reder versus Bradley 101 Reed versus Hatton, 25 Richards versus Selimus, 79 Rose versus Standen, 294 Rozal versus Lampen, 42 S. sam's versus Dangerfield 31 Samways versus Eldslly, 73 Scoble versus Skelton, 318 Searl versus Long, 264 Searl versus Bunion, 70 Sambrook versus Fettiplace, 283 Sharp versus Hubbard, 58 Shaw Mil' versus a Burgess of Colchester, 228 Shaxton versus Shaxton, 305 Shaftsbury (Earl of) versus Lord Digby, 98 Sherrard versus Smith, 103 Simpson versus Ellis, 36 Singleton versus Bawtry, 168 Smallwood versus Brickhouse, 315 Smith versus Tracy, 204 Smith versus Shelberry, 33 Smith versus Hall, 31 Smith versus Feverel, 6 Snow & al' versus Wiseman, 60 Southcot versus Stowel, 207 Spring versus Eve, 240 Squib versus Hole, 29 Strangford versus Green, 227 Staples versus Alden, 309 Steed versus Berryer, 313 Stephens versus Austin, 185 Styleman versus Patrick, 141 Steward versus Allen, 264 Stoutfield 's Case, 77 Strangford versus Green, 227 Stroud versus Bishop of Bath and Wells, 183 Stubbins versus Bird & al', 63 Suffeild versus Baskervil, 36 T. Tailor versus Biddal 289 Taylor versus Baker, 214 Thorp versus Fowle, 58 Threadneedle versus Lynam, 57 Tissard versus Warcup, 279 Townsend (Lord) versus hugh's, 150 Trevil versus Ingram, 281 Trotter versus Blake, 229 Turner (Sir William 's) Case, 144 V. VAughan versus Wood, 56 W. WAkeman versus Blackwel, 70 Walwyn versus Awberry, 254 Warden of the Fleet's Case, 221 Waterfield versus the Bishop of Chichester, 118 Week's Case, 278 Wells versus Wright, 285 Whitrong versus Blaney, 10 Wilcox versus the Servants of Sir Fuller Skipwith, 4 Wilkinson versus Loyd, Mil ', 82 Williamson versus Hancock, 14 Wilson versus Drake, 20 Wilson versus Ducket, 61 Windam (Lady 's) Case, 294 Wine versus Rider, & al', 67 Woodward versus Aston, 95 Wright versus Bull, 304 ERRATA. PAge 6. Line 31. for Defendant read Plaintiff, p. 58. l. 15. after out r. of, p. 79. l. 19 after according read to, p. 143. l. 17. for and r. one, p. 145. l. 25. for by r. in, p. 180. l. 40. for Plaintiff r. Sheriff, p. 200. l. 22. for Defendant r. the Plaintiff, and for the word Replication r. Plea. DE Termino Sancti Hill. Annis 26 & 27 Car. II. in Communi Banco. Coram Francisco North Milite Capital Justic'. Hugone Wyndham Milite, Justic'. Roberto Atkins Milite, & Justic'. Willielmo Ellis Milite, Justic'. The King versus the Bishop of Rochester and Sir Francis Clark. IN a Quare Impedit a special Verdict was found, Quare Impedit. Mod. Rep. 195. Grant of the King, where the first Clause is certain, and a mistake in another, yet the Grant is good. wherein the Case was thus: The Manor of Laburn, to which the Advowson of the Church of Laburn was appendent, did by the dissolution of Monasteries Anno * 31 H. 8. c. 13. 31 H. 8. come to the King, who granted the said Manor to the Archbishop of Canterbury (excepting the Advowson) and afterwards the said Archbishop regrants the same to King H. 8. and the Advowson of the Church of Laburn aforesaid; and then King H. 8. grants the said Manor of Laburn & Advocation Ecclesiae de Laburn dicto Archiepiscopo, (having named him before) dudum spectan, and which was regranted to the said King by the said Archbishop, and lately belonging to the Abbot of G. etc. adeo plene as the said Archbishop or Abbot had it, or as it was in our hands by any ways or means howsoever. And whether the Advowson passed by this last Grant was the Question. Three justices (absent North) gave judgement for the Defendant, that the Advowson did pass by this Grant. justice Ellis in his Argument said, That it was plain that when the Manor came to H. 8. the Advowson was appendent, but when it was granted to the Archbishop, and the Advowson excepted, it than became in gross, and therefore could never afterward be appendent: James and Johnson 's Case Postea. As an Aere once disunited from the Manor can never after be part of that Manor, Liford's Case, 7 Co. And 'tis as plain, that before the Statute de Praerogativa Regis cap. 15. That in the ease of the King, by the Grant of a Manor, the Advowson though not named passed, much more if it be named in any part of the Deéd, as if it be in the Habendum though not in the Premises; but that must be intended of an Advowson appendent. 10 Co. 63. And though Advowsons' are excepted by that Statute, yet in case of Restitution an Advowson will pass by the Words Adeo plene & integre, though not named. In this Case there are general Words and the same as in * 10 Co. 63. Postea. Attorney General against Turner. Whistler's Case; yet this differs from that, for here 'tis granted adeo plene, as the Abbot had it; by those Words it doth not pass, for than it was appendent, but now it is in gross; and if the King intended to pass an Advowson as appendent when 'tis in gross, the Grant is void, Hob. 303. In Whistler's Case there are the Words Adeo plene, as in this, and the Advowson was appendent still, but yet there are general Words here that will pass it: Adeo plene as the Archbishop had it, will not serve, because he never had it; neither will Adeo plene as the Abbot had it pass this Advowson, because he had it in gross; but Adeo plene as the King had it by any ways or means whatsoever, those general Words are sufficient to pass it. The King grants the Manor and the Advowson of the Church of Laburn, which is certain and by particular Name, part of what follows (as spectan' to the Archbishop) is false, for it never belonged to him because it was excepted in the Grant of the Manor to him, but the first description being full and certain the falsity of the other shall not avoid the Grant, especially when the King is not deceived in his Title nor in the Value, and when there is a certainty of the thing granted. Some false suggestions may make his Grant void, as if he grant the Manor of D. reciting that it came to him by Attainder, when it came by Purchase, Hob. 229. Lane 11. But if the mis-recital concerns not the King's Title or Profit, it doth not vitiate the Grant, 10 H. 2. 4. Sir John Lestrange's Case, where the King by Office found had the Wardship of a Manor, and makes a Grant thereof reciting Quod quidem Manerium in manus nostras seisit etc. which was not true, yet the Grant was held good, because it was only to make that certain which was certain enough before by a particular description. So in Legat's Case, 10 Co. 113. wherein is cited the Case of the Earl of Rutland and Markham, to whom the Queéns had granted the Office of Parkership, etc. quod quidem Officium the late Earl of Rutland habuit, when in truth the Earl never had it before, yet the Grant was held good. So also if he grants for and in consideration of Service done, or Money paid, if false, it avoids not the Grant, because such Considerations (when past) are not material whether they are true or false, Cro. Jac. 34. If the King let the Manor of D. of the value of 4 l. per annum, if it be more it is ill, but if he let it by a particular Name, and then adds, Quod quidem Manerium is of such a value 'tis good, because the * 2 Cro. 34. Quod quidem is but the addition of another certainty; so here the Advowson is granted by special and express Name, but the Clause that follows, Dudum spectan to the Archbishop, implies a mistake; and had there been no more in the Case this falsity would never have avoided the Grant. But when the King had enumerated several ways by which he thought he might be entitled, at last as a proof that he was resolved to pass it, he adds these Words, viz. as it is in our hands by any way or means whatsoever. Atkins justice of the same Opinion: Where the thing is not granted by an express Name, there, if a falsity is in the description of that thing, the Grant is void even in the case of a common person, as if he grant Lands lately let to D. in such a Parish, and the Lands were not let to D. were also in another Parish, the Grant is void, because the Lands are not particularly named, Anders. 148. Heywood's Case. A fortiori in the Case of the King, as if he grant omnia illa tenementa situata in Wells, when in truth the Lands did not lie there, for this reason the Grant was void, because it was general, and yet restrained to a particular Town, and the Pronoun (illa) goes through the whole sentence. But if a thing is granted by an express Name, though there is a Falsity in the description, yet in the Case of a common person 'tis good. As when the Subchantor and Vicars Choral of Lichfield made a Grant to Humphrey Peto of 78 Acres of Glebe, and of their Tithes Predial and Personal, and also of the Tithe of the Glebe, All which late were in the occupation of Margaret Peto, which was not true, yet the Grant was adjudged good; for the Words All which are not Words of restriction unless when the Clause is general and the Sentence entire, but not when it is distinct, Cro. Car. 548. But in the Case of the King, if there is a falsity by which the King hath a prejudice, and a Falsity upon the suggestion of the Party, it will make the Grant void, but every Falsity will not avoid his Grant if it be not to his prejudice. But let the Falsity in this Case be what it will the Adeo plene as it is in our hands helps it; and though it hath been objected, that these Words will not help the Grant, because nothing new is granted, that being done before; 'tis true there is nothing new granted, but that which was before was not well granted till this Clause came which supplies and amends the Falsity; for now 'tis apparent that the King intended to pass the Advowson as well as the Manor, and therefore at last grants it, be his Title what it will. In all Cases where the Kings Grant is void because of any mistake in his Title, 'tis to be intended the King would not make the Grant unless the Title were so as 'tis recited, but here 'tis apparent the King resolved to grant it. Judgement. Wyndham justice agreed, and judgement was given accordingly. Wilcox versus the Servant of Sir Fuller Skipwith. Replevin. Justification for an Herriot. IN Replevin the Defendant justifies the taking of the Cattle for a Herriot which he alleges to be due upon every Alienation without notice. The Plaintiff denies the Herriot to be due upon Alienation. And thereupon Issue is joined. The Special Verdict finds the Tenure to be by Fealty and the Rent of 3 s. 1 d. (though the Defendant in his Avowry had alleged the Rent to be 12 s. 4 d. and the Plaintiff in his Bar to the Avowry had confessed it to be so) Suit of Court and an Herriot, which was payable upon every Alienation with or without notice. And whether upon this Special Verdict judgement should be given for the Plaintiff or the Avowant was the doubt. Ex parte Def. Upon the point of Pleading Sergeant Jones for the Defendant said it had been objected that the Avowry was ill, for ut Ballivus, etc. been cogn captionem in praedicto loco, etc. but doth not say tempore quo, etc. for a Herriot (tempore quo, etc. being left out) and so doth not say a Herriot was due at the time of the taking of the Goods. But he answered, That that was usual and common, and of that Opinion were all the justices, and so it was held good. It was farther objected, That here is a variance between the Avowry and the finding in the Special Verdict; The Avowant says that the Rent was 12 s. and 4 d. and the jury find that it was but 3 s. and 1 d. He also saith, that the Herriot was due upon every Alienation without notice, and they find it due with or without notice. But to that he said, the jury have doubted only of the last Point, for the Avowry was not for Rent but for the Herriot, so the substance is whether he had good cause to distrein for the Herriot or not. Postea. And as to that, the Substance is sufficiently found, like the Case in Dyer 115. Debt upon Bond for performance of Covenants, and not to do waste, the Breach assigned was that the Defendant felled twenty Oaks, who pleads Non succidit viginti quercus praed' nec earum aliquam, the jury find he cut down ten, yet the Plaintiff recovered; for though the entire Allegation of the Breach was not found, because ten did not prove the issue of twenty literally, yet the Substance is found, which is sufficient to make the Bond forfeited. So in Trespass, where the Plaintiff makes a Title under a Lease which commenced on Lady-day, Habendum à Festo, etc. and the Issue was non demisit modo & forma, the jury found the Lease to be made upon Lady-day, Habendum à confectione, and so it commenced upon Lady-day, and not à Festo, etc. which must be the day after the Feast, yet 'twas adjudged for the Plaintiff, because the * Moor 868. Yelv. 148. Substance was whether or no the Plaintiff had a Lease to entitle himself to commence an Action, Hob. 27. But in Ejectment or Replevin such a Declaration had been naught, because therein you are to recover the Term, and therefore the Title must be truly set out, and in Replevin you are to have a Retorn habend ', but in Trespass 'tis only by way of excuse. Sed quaere. A second Reason is because both Plaintiff and Defendant in pleading have agreed the matter in this particular, for both say the Rent was 12 s. and 4 d. 'Tis a Rule in Law, That what the Parties have agreed in pleading shall be admitted though, the jury find otherwise, 2 Ass. pl. 17. 18 E. 3. 13. b. 2 Co. 4. Goddard's Case. jurors are not bound by Estoppel ad dicend' veritatem, for they are sworn so to do unless the Estoppel be within the same Record, but here that which is confessed cannot be matter of Issue not being Lis contestata. It has been objected, that in 33 H. 6. 4. b. the Plaintiff brought Debt for 20 l. the jury found the Defendant only owed 10 l. and the Plaintiff could never recover. But that must be intended of a Debt due upon Contract, and there the least variance will be fatal, 38 H. 6. 1. As to the second variance 'tis not material, for 'tis not true as the Avowant hath said, for if the matter in issue be found, the finding over is but surplusage; both the Verdict and the Avowry agree that the Defendant may take a Distress in case of Alienation without notice: And so he prayed judgement for the Defendant. Judgement for the Defendant. The Court were all of Opinion that judgement should be given for the Defendant; for what is agreed in pleading, though the jury find contrary, the Court is not to regard, and here the substance of the Issue as to the second Point is well found for the Defendant. judge Atkins told Sergeant Wilmot, who argued for the Plaintiff, that he had cited many Cases which came not up to the matter, and so did magno conatu nugas agere, for which reason I have not reported his Argument. Smith versus Feverel. Case for surcharging a Common. THE Plaintiff brought an Action on the Case against the Defendant, setting forth that he had right of Common in A. and that the Defendant put in his cattle, viz. Horses, Cows, Hogs, etc. ita quod Communiam in tam amplo modo habere non potuit. The Defendant pleads a Licence from the Lord of the Soil to put in Averia sua, which was agreed to comprehend Hogs as well as other Cattle in the most general sense. The Defendant demurs, and after Argument the Court were all of opinion that judgement should be given for the Plaintiff, because the Defendant in his Plea hath not alleged that there was sufficient Common left for the Commoners, for the Lord cannot let out to pasture so much as not to leave sufficient for the Commoners. And though it was objected, that the Plaintiff might have replied specially and shown there was not enough, yet it was agreed by the Court that in this Case he need not, because his Declaration to that purpose was full enough, and that being the very Gist of the Action the Defendant should have pleaded it. It was held indeed that in an Action upon the Case by the Commoner against the Lord, he must particularly show the Surcharge; but if the Action be brought against a Stranger such a showing as is here is sufficient. North Chief justice said, and it was admitted, that the Licence being general ad ponend' averia it should be intended only of Commonable cattle and not of Hogs; Sed contra, if the Licence had been for a particular time. Anonymus. A Man devices Land to A. his Heir at Law, Devise. and devises other Lands to B. in Fee and saith, If A. molest B. by Suit or otherwise he shall lose what is devised to him, and it shall go to B. The Devisor dies, A. enters into the Lands devised to B. and claims it, the Court were of Opinion that this Entry and Claim is a sufficient breach to entitle B. to the Land of A. It was also agreed that these words, If A. molest B. by Suit, etc. make a Limitation and not a Condition, Pl. Com. 420. the Devise being to the Heir at Law; for if it were a Condition, it descends to him and so 'tis void, because he cannot enter for the breach, 3 Co. 22. Cro. Eliz. 204. Wellock and hamond's Case. Paying in the case of the eldest Son makes a Limitation, Owen 112. So in the Case of Williams and Fry in an Ejectione firmae in B. R. lately for Newport-House. A. deviseth to his Granddaughter, Provided and upon Condition that she marry with the consent of the Earl of Manchester and her Grandmother, 'tis a Limitation. 2dly, It was agreed, That an Entry and Claim in this Case was a sufficient molestation, for when the Heir enters and claims generally it shall be intended as Heir, and the words, that he shall not molest by Suit or otherwise, are to be intended occasione praemissorum. 3dly, There is no need of Entry to avoid an Estate in case of a Limitation, because thereby the Estate is determined without Entry or Claim, and the Law casts it upon the Party to whom it is limited and in whom it vests till he disagrées to it. A. devises Land to B. and his Heirs and dies, 'tis in the Devisee immediately, but indeed till Entry he cannot bring a possessory Action, as Trespass, etc. Pl. Com. 412, 413. 10 Co. 40. b. where a Possession vests without Entry a Reversion will vest without Claim. Nota. Curtis versus Davenant. Prohibition A Bishop cannot appoint Commissioners to tax the Parish for building or repairing a Church. IN a Prohibition the Question was, whether if a Church be out of repair, or being so much out of order that it must be re-edified whether the Bishop of the Diocese may direct a Commission to empower Commissioners to tax and rate every Parishioner for the re-edifying thereof: The Court did unanimously agree such Commissions were against Law, and therefore granted a Prohibition to the Spiritual Court to stop a Suit there commenced against some of the Parishioners of White-Chappel for not paying the Tax according to their proportions. It was agreed that the Spiritual Court hath power to compel the Parish to repair the Church by their Ecclesiastical Censures, but they cannot appoint what Sums are to be paid for that purpose, because the Churchwardens by the consent of the Parish are to settle that. As if a Bridge be out of repair, the justices of Peace cannot set Rates upon the persons that are to repair it, but they must consent to it themselves. These Parishioners here who contribute to the charge of repairing the Church may be spared, but as for those who are obstinate and refuse to do it, the Spiritual Court may proceed to Excommunication against them; but there may be a Libel to pay the Rates set by the Churchwardens. Nurse versus Yearworth in Cancellaria. Bill in Cancellaria for the Assignment of a Term. RIchard Yearworth being seized of Lands in Fee makes a Lease to the Defendant Christopher Yearworth for 99 years to such use as by his last Will he should direct. Afterward he makes his Will in writing (having then no Issue but his Wife grossement enseint) and thereby devices the same Land to the Heirs of his Body on the Body of his Wife begotten, and for want of such Issue to the said Christopher the Defendant and his Heirs. Richard dies and about a month after a Son is born, the Son by virtue of this Devise enjoys the Land, but when he attains his full age of one and twenty years, he suffers a Common Recovery, and afterwards devices the Land to the Complainant Nurse, and dies. The Complainant exhibits a Bill against the Defendant to have the Lease for 99 years assigned to him, and whether he should have it assigned or not, was the Question. 1. It was pretended that an Estate in Fee being limited by the Will to Christopher, who was Lessee for 99 years, the Term is thereby drowned. 2. It was objected, that the Devise by Richard to the Infant in ventre la mere was void, and then the Complainant, who claimed by a Devise from the Posthumus, could have no Title, but that the Defendant to whom an Estate was limited by the Will of Richard in Remainder should take presently. But notwithstanding what was objected the Lord Keeper Finch decreed that the Lease which was in Trust, should be assigned to the Complainant Nurse. He said that at the Common Law without all question a Devise to an Infant in ventre sa mere of Lands devisable by Custom was good, so that the doubt arises upon the Statute of H. 8. Roll. Abr. tit. Devise 609. lit. H. pl. 2. Godb. 385. 11 H 6. 13. dubitatur. which enacts, That it shall be lawful for a Man by his Will in writing to devise his Lands to any person or persons, for in this Case the Devisée not being in rerum naturâ, in strictness of speech is no person, and therefore it hath been taken that such a Devise is void, Moor's Rep. and 'tis left as a Quaere in the Lord Dyer 304. But in two Cases in the Common Pleas, one in the time when the Lord Chief justice Hale was judge there, the other in the Lord Chief justice Bridgman's time, it hath been resolved that if there were sufficient and apt words to describe the Infant, though in ventre sa mere, the Devise might be good. But in the King's Bench the judges since have been divided upon this Point, that as the Law stands now adjudged, this Devise in our Case seems not to be good: But should the Case come now in question, he said he was not sure that the Law would be so adjudged; for 'tis hard to disinherit an Heir for want of apt Words to describe him; and 'tis all the reason in the World, that a Man's intent, lying in extremis, when most commonly he is destitute of Council, should be favoured. Whitrong versus Blaney. Process into Wales. THIS Term the Court delivered their Opinions in this Case, North Chief justice, who had heard no Arguments herein, being absent. The Case was this: The Plaintiff upon a judgement in this Court sues out a Scire facias against the Heir and the Ter-tenants, which was directed to a Sheriff of Wales; the Defendant is returned Tertenant, but he comes in and pleads Non tenure generally, and traverses the Return; the Plaintiff demurs. Two Points were spoke to in the Case. 1. Whether the Defendant can traverse the Sheriffs Return? And all the three justices agreed that he cannot. 2. Whether a Scir Fac, Ca Sa. Fi. Fa. etc. would lie into Wales on a judgement here at Westminster, And they agreed it would well lie. An Indictment may be removed. 2 Cro. 484. Ellis justice agreed, If judgement be given in Wales it could not be removed into the Chancery by Certiorari, and sent hither by Mittimus, and then Execution taken out upon that judgement here, because such judgements are to be executed in their proper jurisdictions, and such was the Resolution of the justices and Barons, Cro. Car. 34. But on a judgement obtained here Execution may go into Wales. No Execution can go into the Isle of Man, because 'tis no part of England, but Wales is united to England by the Statute of 27 H. 8. c. 26. And therefore in Bedo and Piper's Case, 2 Bulstr. 156. it was held that such a * Het. 20. 2 Cro. 484. The Opinion of Dodderidge. Roll. 395. 2 Sand. 194. Twisden denied it. Writ of Execution goes legally into Wales. He said he had a Report of a Case in 11 Car. 2. where a Motion was made to quash an Elegit into Wales; but it was denied, for the Court agreed the Writ well issued. Some have made a difference between the King's Bench and the Common Pleas, as if an Execution might go into Wales upon a judgement obtained in the King's Bench, but aliter if in the Common-Pleas. But the Law is the same in both Courts, Mich. 1653. between Wyn and Griffith this very Case came in question, and there it was held that Execution goes into Wales as well as into any part of England upon a judgement in the Courts of Westminster. In 2 Bulstr. 54. Hall versus Rotheram it was held that a Ca sa. shall go into Wales against the Bail upon a judgement recovered in the Kings-Bench here against the Principal. Of the same Opinion was justice Atkins, and that the Defendant cannot aver against the Sheriffs Return, nor a Bishop's Certificate; and the true reason is given by my Lord Coke in 2 Inst. 452. for the Sheriff is but an Officer and hath no day in Court to justify his Return. In special Cases Exception may be made to the Sheriffs Return; but this is by reason of the special provision that is made for the doing of it by the Statute of W. 2. cap. 39 as in case too small Issues be returned, or that the Sheriff return a Rescous; the Party in his Averment must allege of what value the Issues are. 2dly. That notwithstanding the common saying Breve Domini Regis non currit in Walliam, yet a Fi. Fa. Ca Sa. or any Execution whatsoever may issue into Wales upon a judgement obtained here: And to prove this he considered, 1. How Wales formerly stood in relation to England. 2. How it stood before it was united by the Statute of H. 8. 3. How it now stands since the Union. 1. And as to the first of these, England and Wales were once but one Nation, they used the same Language, Laws and Religion, and so continued till the time of the Roman Conquest, before which they were both comprehended under one name, viz. The Isle of Great Britain. But when the Romans came, those Britain's, who would not submit to their yoke, betook themselves to such places where they thought themselves most secure, which were the Mountains in Wales, and from whence they came again, soon after the Romans were driven away by their dissensions here, and then these Britain's enjoyed their ancient Rights, as before. After this came the Saxons and gave them another disturbance, and then the Kingdom was divided into an Heptarchy; and then also, and not till then, began the Welsh to be distinguished from the English; but yet at that time they had great Possessions in England, viz. Gloucester, part of Worcester, Hereford, Shrewsbury, which they kept till King Offa drove them out of the plain Countries, and made them fly for shelter into those Mountainous parts in Wales, where they now continue, Cambden 15. And 'tis observable that though Wales had Kings and Princes, yet the King of England had Superiority over them, for to him they were Homagers, Cambden 67. The Word Princeps implying a Subordinate Dignity, Selden's Titles of Honour 593. 2dly. During the time of the Separation Wales had distinct Laws and Customs from those in England, whence that saying took its effect, viz. Breve Domini Regis non currit in Walliam; yet the Parliament of England before that time made Laws to bind Wales; As the Act of 25 Edw. 1. for confirmation of the old great Charter of the Liberties of England and of the Forests, which enacts, That certain Duties shall be paid for every Sack of Wool, etc. exported out of Wales, 2 Inst. 531. So the Statute 3 Edw. 1. cap. 17. which gives remedy if a Distress be taken and detained in a Castle, and upon deliverance demanded by the Sheriff, if the Lord of the Castle should refuse, he might raise the Posse Comitatus, and beat down the Castle; and if such detainer or refusal be in the Marches of Wales, the King, as the Statute saith, is Sovereign Lord of all, and shall do right upon complaint; and the Conquest was not made till 9 E. 1. so that at that time likewise though Wales had Princes of its own, Vaugh. 400. yet the Kings of England were Sovereigns to those Princes; and though they had Laws of their own, yet were they bound by those that were made here; and though their Princes had ordinary remedial Writs, yet in Cases extraordinary the King's Writs here run into Wales; and it was not for want of power, but because there was no need, for that it went so seldom; and when the King's Writ did issue it was necessary to direct it to the Sheriff of an English County, for Wales was not then divided into Shires; but afterwards by the Act called Statutum Walliae 12 Edw. 1. * 2 Inst. 195. 4 Inst. 239. it was divided into six Counties, and then again by the Act of 27 H. 8. cap. 26. it was divided into the other six Counties. But during this time there were frequent Hostilities between England and Wales, until by the Conquest in Edw. 1. time they were united. 'Tis pretended that H. 3. Father to Edw. 1. was the Conqueror, and 'tis probable something considerable might be done in his time; yet the absolute Conquest of the whole Dominion was made by Edw. 1. in whose time the aforesaid Statutum Walliae was made, Vaugh. 414, 415. and after that the Statute of 27 H. 8. to complete the Union, the end of which is declared to bring the Subjects of both to an entire Unity; and that it may be done with effect, 'tis enacted, That the Laws of England be executed there; ● Bulst. 54. for which reason it is held in 5 Co. Rep. Vaughan's Case, fol. 49. that the Statutes of Jeofails do extend to Wales; and in 2 Bulstr. 156. * This was a Resolution upon no Debate. the Sheriff of Radnor upon a Scire Fac directed to him, returned Breve Domini Regis non currit, etc. and was amerced 10 l. for his false Return, Vide 19 H 6. 20. Fitzherb. Trial pl. 40. tit. Jurisdiction, 13 E. 3. 23, 24, 34. idem, Brief 621. & Assize 382. It was objected, That by express provision in 1 E. 6. cap. 10. Exigent and Proclamations shall be awarded out of the Courts of Westminster into Wales, which if they might before, this Law was then needless. 'Tis true, the Opinion of the Parliament seems to be, that had it not been for this particular provision, such Proclamations might not have issued; for by 6 H. 8. cap. 4. Vaugh. 414. such Proclamations went but to the next County, but they do not declare so, and perhaps they might ground themselves upon that vulgar Error, Breve Domini Regis non currit in Walliam, which is not true unless the Clause be limited to original Writs only. Objection. That the Statute of 5 El. cap. 23. which enacts, that the Excommunicato Capiendo shall be returned in the Kings-Bench, and takes notice that this Writ is not returnable into that Court from Wales, and therefore orders that the Significavit shall be sent by Mittimus out of the Chancery to the Chief justice there, and gives them power to make Process to inferior Officers returnable before them at their Sessions for the due Execution of this Writ, all which had been in vain, if the Capias might go into Wales before the making this Act. Answ. But that is an original Writ, and so comes not up to this Case. Wyndham justice agreed in omnibus, and said that the Statute of 1 Ed. 6. was very needful; for if a Man should be outlawed, if the Process should be sent to the Sheriff of the next adjoining County in England, he could not have any notice that he was outlawed, and so could not tell when oulawed or at whose Suit. Vaughan late Lord Chief justice held strongly, Vaugh. 395. 2 Saund. 194. that no Execucution would go into Wales when this Case was argued before him; and of the same Opinion was justice Twisden. Williamson versus Hancock. Collateral Warranty. Mod. Rep. 192. A Special Verdict was found in an Ejectment, where the Case was: Richard Lock the Father was Tenant for Life, with Remainder in Tail to Richard his Son, Remainder to the right Heirs of the Father, who levies a Fine with Warranty to the use of Susan and Hannah Prinn in Feé; they by Bargain and Sale convey their Estate to the Defendant: The Son in his Father's life time, before the Warranty attached, comes of full age; the Father dies; The Question was whether the Sons Entry was barred by this collateral Warranty thus descended? And the three justices, absent North Chief justice, were clear of Opinion, that the collateral Waranty was a bar to the Son, and so judgement was given for the Defendant. Ellis justice held that his Entry is taken away; for in every Warranty two things are implied, a Voucher and Rebutter; he that comes in by Vourcher calleth the person into Court, who is bound in the Warranty to defend his Right or yield him other Land in recompense, and must come in by Privity; but if a Man have the Estate, though he comes in the Post he may rebut, that is, he may repel the Action of the Heir by the Warranty of his Ancestor without showing how the Estate came to him, Fitzh. Nat. Br. 135. In a Formedon in the Discender to say the Ancestor enfeoffed J.S. with Warranty without showing how J. S. came by his Estate, is good. Object. It was objected by Sergeant Maynard, that no person can take advantage of a Warranty, who comes in by way of use, as in this Case. Answ. But 'tis expressly resolved otherwise in Lincoln College Case, 3 Co. 62. b. and the Prinns in this Case came in by Limitation and Act of the Party, and the Defendant, who hath the Reversion likewise by Limitation of Use, though he be in the Post, shall take benefit of the Warranty as Assignee within the Statute of 32 H. 8. Mod. Rep. 181. c. 34. and so it was resolved in Fowl and Dobles Case in this Court, that he who comes in by way of use may rebut; and justice Jones in his Report fol. 199. affirms the fourth resolution in Lincoln College Case to be Law. It was formerly objected by the Lord Chief justice Vaughan, that this Warranty goes only to the Heirs, not to the Assigns, and here the Estate was conveyed by the two Prinns before the Warranty attached. Answ. But when the Estate passeth, the Warranty and Covenant followeth, and the Assignée shall have the benefit thereof though not named, and so is the Authority of 38 E. 3. 26. if a Warranty be made to a Man and his Heirs, the Assigneé though not named shall Rebutt, but he cannot Vouch. So if A. enfeoff B. with Warranty, and B. enfeoff C. without Deed, C. shall vouch A. as Assigneé of the Land of B. for the Warranty cannot be assigned. In this Case, though the Warranty did not attach before the Estate in the Land was transferred, yet if it attach afterwards 'tis well enough, and he who hath the Possession shall Rebutt the Demandant without showing how he came by the Possession. If a Warranty be to one and his Heirs without the word Assigns, the Assignée indeéd cannot Vouch, but he may * 1 Inst. 265. a 384. Rebutt; for Rebutter is so incident to a Warranty that a Condition not to Rebutt is void in Law: But 'tis otherwise of a Condition not to Vouch, for in such case you may Rebutt. 'Tis true, it hath been an Opinion that he who claimeth above the Warranty, if it be not attached, cannot take benefit of it by way of Vourcher or Rebbutter; as if Tenant in Dower maketh a Feoffment to a Villain with Warranty, and the Lord entereth upon him before the descent of the Warranty, the Villain can never take advantage of this Warranty by way of Rebutter, because the Lord's Title is paramount the Warranty, and he cometh not under his Estate to whom the Warranty was made. If Land be given to two Brothers in Feé, with Warranty to the eldest and his Heirs, the eldest dies without Issue, the Survivor shall not take benefit by this Warranty for the reason aforesaid. But in the Case at Barr the Warranty being collateral and annexed to the Land, goeth with the Estate, and whilst that continues the Party may Vouch or Rebutt; so here the Defendant though he be only Tenant at Will, for the Estate is in the Bargainors, and their Heirs (there being no Execucution of it either by Livery or Enrolment) yet he may Rebutt. justice Atkins was of the same Opinion, that by this collateral Warranty the Entry of the Lessor of the Plaintiff was taken away, for 'tis the nature of a collateral Warranty to be a Bar; a * Jones Rep. 199, 200. 1 Inst. 366, 385. 25 H. 6. 63. Bro. Gar. 4. Right is bound by it; it extinguishes a Right, 'tis annexed to the Land and runs with it. If then a collateral Warranty be of this nature, 'tis against all reason, that he who is thus bound should make any Title to the Land; but 'tis very reasonable that he who comes in quasi by that Estate should defend his Title. The Opinions of justice Jones and justice Crook in the Case of * Cro. Car. 368. Spirit and Bence has occasioned this doubt: The Case was shortly thus: Cann being seized in Fee had three Sons, Thomas, Francis and Henry and devised Lands to the two eldest in Tail, and to Henry the Meadow called Warhay (which was the Land in question) but doth not limit what Estate he should have in it; then he adds these Words, viz. Also I will that he shall enjoy all Bargains I had of Webb to him and his Heirs, and for want of Heirs of his * Notwithstanding the word Body he had but an Estate for Life in Warhay, for that word extends to no other than Webs Bargains. Body, to his Son Francis, and that Margaret should have it for Life. Cann dies, the Meadow was not one of Webb's Bargains, Thomas had Issue Thomas the Lessor of the Plaintiff, Henry made a Feoffment in Fee to A. and B. to the use of himself and his Wife, and to the Heirs of their two Bodies, Remainder to his own right Heirs, with Warranty against all persons, and died without Issue; the Lessor of the Plaintiff enters, being his Cousin and Heir and of full age when Henry died. In this Case it was held, that if it had been found that Margaret had an Estate for Life, and that Henry entered in her Life time, that it had been then a Warranty commenced by Disseisin and would not have bound Thomas the Reversioner. But as it was, those two judges held it no Bar, because the Warranty began with the Feoffment to uses, and Henry being himself the Feoffeé, it returned instantly to him, and was extinct as to the Reversion, because that was revested in him in Fee, and therefore they held he could have no benefit either by Voucher or Rebutter, it being destroyed at the same time it was created: But Berkly and Richardson justices held, that quoad the Estate of Henry's Wife the Warranty had a Continuance, and the ground of the contrary opinion might be because justice Jones said there was no such Resolution, as is mentioned to be the fourth in Lincoln College Case; yet he affirmeth that very Resolution in his own Reports fol. 199. There is a Clause in the * 27 H. 8. c 10. Statute of uses, difficult to be understood, by which 'tis Enacted, That every Cestuy que use may take such Advantage of vouching, etc. as the Feoffees themselves might, so that Cestuy que use have the Estate executed in him before the first day of May, 1536. which was a year after the making that Statute; so that the Clause seems to be exclusive of all others who shall come in afterwards. Answ. But he supposed, the Intention of the Law Makers to be, That there should be no more Conveyances to uses: But because they presumed, that at first Men might not know of it, therefore, lest the Parties should be any ways prejudiced, they gave liberty till such a time to Vouch or Rebutt, within which time they might have some knowledge of the Statute, and then it was supposed, they would make no more Limitations to uses. But though they imagined them to be left expiring, yet they revived. Since then, the Parliament gave leave to Vouch or Rebutt, whilst they could in reason think there would be any Conveyance to uses, 'tis but reasonable, whilst they do continue, that the Parties should Rebutt, especially since most Conveyances at this day are made to uses. Windham justice accord in omnibus, and so judgement was given as aforesaid. Anonymus. DOwer, The Tenant pleads, That a Lease was made by the Husband for 99 years, before any title of Dower did accrue, which Lease was yet in being, and shows, that the Lessor afterwards granted the Reversion to J. S. and died, and that J. S. devised to the Tenant for Life. The Demandant replies, That the Lessor made a Feoffment in Fee, absque hoc, that the Reversion was granted prout, etc. The Tenant Demurs. Newdigate Sergeant, for the Demandant, argued, That the Plea was not good, to which he took several Execeptions. 1. Except. The Tenant by his Plea confesseth, That the Demandant ought to have judgement of the Reversion expectant upon the Lease for 99 years, de tertia, but doth not say, part. 2. Except. Here is the Grant of a Reversion pleaded, and 'tis not hic in Curia prolat '. Then for the Matter, as 'tis pleaded, 'tis not good: He agreed, if Dower be brought against Lessee for years, he may discharge himself, by pleading the continuance of his Lease, during which time, the Demandant can have no Execution; but here the Tenant is no ways concerned in the Lease; 'tis Littleton's Case, None shall take advantage of a Release, but he who is party or privy, and therefore the Lessee in this Case, being party, might have pleaded this, but the Tenant is altogether a Stranger. Before the Statute of Gloucester, cap 11. If the Demandant had recovered, in a real Action against the Tenant, the Termor had been bound, because, at the Common Law, no body could falsify the Recovery of a freehold, but he who had a freehold himself; this Statute prevents that Mischief, and Enacts, That the Termor shall be received before Judgement, to defend the Right of his Term, upon the default of the Tenant, and though the judgement cannot be hindered thereby, yet Execution shall be suspended, during the Term; and therefore in Dyer 263. b. The Lady Arundel brought Dower against the Earl of Pembroke, who made default, and before judgement the Termor prays to be received upon this Statute, and pleads a Lease made by the Husband, after Coverture, which was assigned to him, and that Dower de tertia parte, of the Rent of this Lease, was assigned to the Demandant, by the Court of Augmentations, which was afterwards confirmed by Letters Patents; that she accepted it, and concludes, That the Plea of the Tenant was by Collusion, between him and her, to make him lose his Term; And this was held ill, for the Reason given by my Lord * Hob 316. Not for that reason, but because that Court could not assign Dower, and so the Letters Patents of Confirmation could not make that good which was void before. Hobart, That it is absurd to admit two Persons to dispute the Interest of a third Man. But whether the Traverse is good or not, if the Plea is naught, judgement ought to be given for the Demandant. Jones Serjeant contra: The Pleading is well enough. 1. The Tenant confesseth, That the Demandant ought to have judgement of the Reversion de tertia, which is well enough, omitting the word (part) because he claims a third part of such Tenements; and the Tenant confesses she ought to have judgement, which is full enough, if the words de tertia parte were wholly omitted. 2. He agreed, That whoever Claims under a Deed, must show it; but the Tenant, in this Case, did not defend himself by any Title from the Deed, for the substance of the Plea, which secured him, was, That a Lease of 99 years was in being, and by his alleging the Devise of an Estate to him for Life, made by the Grantee of the Reversion, he did but allow the Demandant's Writ to be true, which mentions him as Tenant of the freehold. Then for the Matter of the Plea, he says it was good, and that the Tenant might well plead the Lease for years. By the * 3 Inst. 32. b. Statute of Merton, Damages are given in Dower, where the Husband died seized, which he did in this Case; but yet no Damages ought to be paid here, but for the third part of the Rent, and the third part of the Reversion, and therefore to acquit himself thereof, he may well plead, as here, for which there is a Precedent in Hern's Pleader 335. Then he said, That the Traverse was ill, for the principal Point in the Plea which he ought to have traversed, was the continuance of the Term; and 'tis not material who granted the Reversion, or to whom it was granted; for if there is a Lease in being, the Demandant cannot have Execution. The Court were all of Opinion, That the substance of the Plea was good, because there was a privity in the Grantee, and it was for his benefit to avoid the Demandants Seisin, he being thereby entitled to the Rent, and he may plead this Plea, to save himself from Damages given by the Statute of Merton: But as to the Traverse, North Chief justice, and Wyndham justice, inclined, That the Traverse was well taken; for if a Disseisor pleads the like Plea, as here, 'tis not good, and therefore when the Tenant alleges a Grant of the Reversion, the Demandant may well traverse it. But justice Ellis and Atkyns were of Opinion, That the Traverse was immaterial, for it was the Lease and not the Grant that was traversable. But because it was alleged by the Demandants (who offered to refer it to the Council on the other side) that this Lease so pleaded, was an old Mortgage, long since satisfied; it was referred accordingly. Wilson versus Drake. Prohibition Feme Sole hath Debts due by Specialty, she marries, and dies, the Husband shall have Administration; Quaere, whether he may make distribution to her Kindred. A Prohibition being granted upon the late Statute for disposing of Intestates Estates: The Defendant demurred; and the Case was no more than this. Whether the Husband being Adminstrator of the Wife's Estate be compellable to make distribution amongst her Kindred or not? This Case was argued by Sergeant Seys for the Defendant, and by Sergeant Jones for the Plaintiff. The circumstances of the Case were: A Feme sole had divers Debts owing to her by Specialty, she marries the Plainiff, and died, (the Bonds being not put in suit during the Coverture) the Plaintiff administers, and her Brother sues to have a distribution; and it was insisted for him, that a Consultation ought to go because the * 22 & 23 Car. 2. c. 10. Statute extendeth to all persons, and therefore the Husband, though not named, shall make distribution, like the Statute de Donis which only mentions some Estates Tail; but it has been held that there are several other Estates Tail besides those particular instances there mentioned. The Title of this Act is general, and there is no Preamble to reduce it to particulars; the enacting and provisional Clause speaks in threé places of all persons dying intestate, within which general words a Feme Covert, as well as others, is contained. Ex parte Quer. But on the other side it was said that this Case is not instanced in that Act which provides only where the Husband dies intestate. As to what was objected, that this Act is a general provision and extends to all Cases of the like nature, the Title of it also being general, For settling of Intestates Estates; to that it was said, that before the making this Act there were many doubts in those Cases against which a Provision was thereby made, and therefore it well became the Prudence of that Parliament to take away all Scruples, and to settle those things which were so apt to be questioned: But no doubt was ever made before this Statute to whom Administration of the Wife's Estate should be committed; for by the Statute of 31 Ed. 3. cap. 11. Power was given to the Ordinary to commit Administration to the best Friend of the Intestate; and therefore it has been agreed that the * 4 Co. 51. Ognel's Case. Cro. Car. 106. Johns versus Row. Husband as being the best Friend of the Wife was entitled to the † Quaere, For Administration is not granted to the Husband de jure, the Ordinary may grant it to whom he please. Administration. And 'tis agreed on all sides, that no Distribution is to be made by an Administrator; for if any Suit had been commenced in the Spiritual Court to that purposes, a Prohibition was presently granted. What need was there to settle this Matter by Act of Parliament, which was so clear before? And 'tis the more unlikely that the Estates of Feme Coverts should be intended to be disposed by this Act, when 'tis considered that all their Estates consist only in things in Action, which the Husband might release during the Coverture (for all the Goods in possession are by Law vested in the Husband by the intermarriage) and therefore such inconsiderable things may be well intended not worthy the care and provision of a Parliament. Besides, the Husband and Wife are but one person in Law, and this Act provides for the settling Intestates Estates; now the Wife cannot be said to die intestate, when her Husband (the better part) survives. Before the making those Acts of 31 Ed. 3. cap. 11. and 21 H. 8. cap. 5. the Ordinary might have granted Administration to a Stranger; but now by the first of those Laws he is restrained to the next Friend, and by the other to the Widow or next of Kin; so that the power which he had at the Common Law, and which was too often by him abused, being now restrained, Administration must be granted as prescribed by this Law, and no equitable construction can take it from the Husband; for how can it be intended that the Parliament would take from him that Right which he had by those former Laws, and prefer the Relations of his Wife before him? But if the Wife shall be adjudged an Intestate within this Act then the Husband must lose all her Estate in Action, and he will be then also within the rules of distribution; so that he must be at all the labour and pains of Administration (which must be granted to him) to defend and get in the Estate, and receive no benefit, for he must only deduct his Expenses out of the Profits, and distribute the overplus. He is entitled to the Administration within the Statute of Edw. 3. He is also entitled to it within the Clause of the Statute of H. 8. which Enacts, That 'tis to be granted to the Wife or next of Kin; and it seems very unreasonable that he should have no profit for his labour. Lastly, A Feme Covert can never be intended to die intestate within the meaning of this Act; for that Clause which directs what Bond the Ordinary shall take of the Administrator is very remarkable to this purpose, which provides, That if it appear the deceased made any Will, etc. which a Feme Covert cannot do without her Husband's consent, and therefore she is not a person dying intestate within the intent of this Law. Curia advisare vult. DE Termino Paschae Anno 27 Car. II. in Communi Banco. Naylor versus Sharpless and other Coroners of Lancashire. AN Action on the Case was brought for a False Return in which the Plaintiff sets forth, Case for a false Return Mod. Rep. 198. that upon a Writ issuing out of this Court to the Chancellor of the Duchy of Lancaster, Process was directed to six Coroners being the Defendants, which was delivered to one of them, being then in the presence of the Party who was to be arrested, but he did not execute it, and afterwards at the Return of the Writ they all returned Non est inventus. This Action was laid in Middlesex, and upon Not-Guilty pleaded, the Cause came to Trial, and there was a Verdict for the Plaintiff. Baldwyn Serjeant moved in arrest of judgement. 1. Except. That the Action ought not to be laid in Middlesex, but in Lancashire, where the Tort was committed. But as to that it was answered by Sergeant Turner, when two Matters, both of which are material and are laid in two Counties, the Action may be brought in either, as if two libel in the Admiralty for a Contract made at Land in Dorsetshire, and for which the Plaintiff brings an Action in London against one of them, it has been adjudged the Action lies in either County. 2. Except. The Action will not lie against the six Coroners, for the Tort was done by one alone. As to that it was said, all the Coroners are but one Officer; so if one Sheriff suffer an Escape, both are liable; but in this Case it had been ill to have brought the Action only against one, because the ground of it is the false Return, which was made by six Coroners. And as to the first Exception, there could be no doubt now, since after Verdict 'tis * Stat. 16 & 17 Car. 2. c. 8. helped though the Trial be in a wrong County. But the Court said that Statute helps a Mistrial in the proper County, but not where the County is mistaken; and inclined likewise that this Action was well brought against the six for this Tort committed by one Coroner; but if it had been for not arresting the Party, in such a Case it ought to have been brought against the Coroner who was present with the person to be arrested; for that had been a personal Tort which could not have been charged upon the rest. Edward's versus Roberts. That he did totally forbear and doth not say hucusque, good. THE Plaintiff declares that the Defendant promised to pay him so much Money, in consideration that he would forbear to sue him, and then he avers that he did extunc totaliter abstinere, etc. Upon Non Assumpsit pleaded a Verdict was found for the Plaintiff. And it was now moved by Turner Sergeant in Arrest of judgement. 1. Except. The consideration intends a total forbearance, and the averment is that from the making of the promise he did totally forbear, but doth not say hucusque: Sed non allocatur, for that shall be intended. And it was the Opinion of the whole Court, that if the Consideration be (as in this Case) wholly to forbear, the Plaintiff by an Averment that from the making the promise hucusque he did forbear, is well entitled to an Action. A like Case was this Term, where the Consideration was as before, and the Averment was, that he forbore seven Months; and being moved in Arrest of judgement by Sergeant Baldwyn because 'tis not said hucusque, which implies that after the seven Months he did not forbear, it was notwithstanding held good, it being a reasonable time; and the rather, because if the Action had been brought within the seven Months, and the Plaintiff had averred that hucusque he forbore, it had been good enough. Quaere. Reed versus Hatton. IN a special Verdict in Ejectment the Question did arise upon the construction of the Words in a Will; Devise paying 5 l. per annum, 'tis a Fee. The Case being this: John Thatcher was seized in Feé of the Houses in question, and did devise them to his Son Robert; in which Will there was this Clause, viz. Which Houses I give to my Son Robert upon this Condition, that he pay unto his two Sisters five pounds a year, the first payment to begin at the first of the four most usual Feasts that shall next happen after the death of the Testator, so as the said Feast be a Month after his death, with a Clause of Entry for Nonpayment. The Testator dies; the Houses are worth 16 l. per annum; and whether Robert the Son shall have an Estate for Life only or in Fee was the Question. This was argued by Jones Sergeant for the Plaintiff, and by Seys Sergeant for the Defendant. And for the Plaintiff it was said, Ex parte Quer. that Robert had but an Estate for Life: 'Tis true in most Cases the Word paying makes a Fee, where there is no express Fee limited; but the difference is, viz. where the Money to be paid is a Sum in gross, let it be equivalent or not to the value of the thing devised, the Devisee shall have a Fee, though the Estate be not devised to him and his Heirs; but if it be an annual payment out of the thing devised, as in this Case, it will not create a Fee without apt words, because the Devisée hath no loss, and therefore it hath been held that if a Devise be made to two Sons, to the intent that they shall bear equal share towards the payment of 40 l. to his Wife for Life; the Sons had only an Estate for Life because 'tis quasi an annuel Rent out of the Profits and no Sum in gross, * Jones 211. Cro. Car. 157. Broke Abr. tit. Estate 78. And * 6 Co. 16. Collier's Case was much relied on where this very difference was taken, and allowed that paying 25 l. in gross makes a Fee, but paying 50 s. per annum creates only an Estate for Life. All Devises are intended for the benefit of the Deviseé, and therefore where a Sum in gross is devised to be paid which is done accordingly, in such Case if the Deviseé should die soon after, the Money would be lost, if he should have only an Estate for Life; but in the Case at Bar the Testator by a nice calculation had appointed when the first payment should be made, viz. not until a Month after his decease, which hath prevented that damage which otherwise might have happened to the Devisee, if no such provision had been made, Vide Hob. 65. Green's Case. Ex parte Def. But on the other side it was said, that Robert had a Fee, for though here is a Sum to be paid annually 'tis a Sum in gross, and Collier's Case was also relied upon on this side. It was agreed, where payment is to be made by which the Devisee can sustain no loss, the Word Paying there will not make a Fee, but if there be any possibility of a loss there it will create a Fee, which is the express resolution in Collier's Case. Here the five pounds is payable quarterly, and the first payment is to be made the next Quarter after the death of the Testator, so as it be a Month after his decease; if then he should die a Month before Christmas, the Deviseé is to pay the whole quarterly payment at Christmas: So that if he should die the next day after, instead of having any benefit, he would lose by this Devise in case it should be construed that he had an Estate only for Life. The Court were of Opinion that a Legacy or Devise is always intended for the benefit of the party; so that 'tis reasonable to make such construction of the Will, that he may have no possibility of a loss. And it hath been resolved where a Devise was to A. upon Condition to pay a Sum of Money to B. and in case of failure that B. may enter, 'tis no Condition but an Executory Devise, and that * 10 Co. 36. Mary Portington's Case was denied to be Law in the Resolution of Fry and Porter's Case in the King's Bench. Judgement. And afterwards in this Term judgement was given for the Defendant. For if there be a Devise to one upon Condition to pay a Sum of Money, if there be a possibility of a loss, though not very probable that the Devisee may be damnified, it shall be construed a Fee, and such Construction hath been always allowed in Wills. If A. devise 100 l. per annum to B. paying 20 s. 'tis not likely that the Devisee should be damnified, but 'tis possible he may; and therefore the Estate in this Case being limited to Robert, and charged with payments to the Sisters during their Lives, doth plainly prove the intent of the Testator, was that the Devisee should have an Estate in Fee simple; and judgement was given accordingly. Bridges versus Bedingfield. DEBT was brought upon a Bond of Award, Arbitrament Where the thing awarded is hindered to be done by the Act of a Stranger. and the breach assigned was for not delivering of quiet possession to the Plaintiff of Seats in a Church. The Defendant craves Oyer of the Bond and Condition which was for performance of an Award to be made de praemissis vel aliquâ parte inde; and if there should be no Award made, then for the performance of an Umpirage, and pleads that the Arbitrators made no Award de praemissis, but the Umpire awarded that the Plaintiff should abind upon all occasions hold two Seats quietly and peaceably in such a Church without any disturbance made by the Defendant; and that on the first day of November following the Defendant should deliver up the Seats to the Plaintiff, and that each should bear his own charge; and by his Plea he farther sets forth that the Plaintiff enjoyed the Seats prout till the 30th day of October next following, on which day the Seats were pulled down without his knowledge or consent, per quod he could not deliver them to the Plaintiff on the said first day of November. The Plaintiff demurred, Ex parte Quer. and Sergeant Jones maintained the Demurrer, and said, that the Pleading of nullum fecerunt Arbitrium is not good; for 'tis said the praemissis only, whereas it should have been nec de aliqua parte inde; for if a Bond be to perform an Award of two persons or either of them, it will not be sufficient to plead that those two persons made no Award, without adding nec eorum aliquis. But if an Award be to be made of the Manors of Dale and Sale or either of them, and the Award is made only of Dale, 'tis well enough. 2. Except. Viz. The umpirage is that the Plaintiff should hold the Seats abind, which is for ever; and the Defendant pleads that the Plaintiff enjoyed them till the thirtieth day of October. 3. Except. Viz. The Seats were to be delivered to the Plaintiff on the first day of November, and the Defendant pleads that they were pulled down before that day without his privity, which is not a good Plea by way of excuse; for being bound to deliver the Seats, he is to prevent what may hinder the performance of the Condition. 'Tis agreed, that if a thing be possible, and afterwards by the Act of * Jones 179. Wins Case. God becomes impossible to be done, that will be a good excuse; as if I promise to deliver a Horse at such a day, and he dies before the day, I am excused, 21 E. 4. 70. b. So if a Scire Fac be brought against the Bail, and they plead that before the Writ brought the Principal was dead, this was held not good upon Demurrer, unless he is alleged to be dead before the Capias awarded against him, Cro. Jac. 97. But if the Action of a Stranger interpose, which makes the thing impossible, that is no excuse, 22 E. 4. 27. And therefore 'tis no Plea for the Bail to say, that the Principal was arrested at another Man's Suit and had to Prison, for which reason he could not render him, Cro. Eliz. 815. So if I deliver Goods to the Defendant, and in Action of Detinue brought, he pleads they were stole, 'tis no good Plea, because the delivery charges him at his peril, unless he undertake to keep them as his own, 4 Co. * Cro. El. 815. Southcot's Case. So if an Escape be brought against a Gaoler, he is not excused by alleging that Traitors broke the Prison, Roll. Abr. 1. part 808. Et sic de similibus. Ex parte Def. Seys Serjeant contra. As to the first Exception nullum fecerunt Arbitrium de praemissis is well enough; for that implies nec de aliqua inde parte, especially if the contrary is not shown in the Replication, and therefore it shall never be intended that an Award was made of some part. 2. 'Tis said, he enjoyed the Seats till the thirtieth of October, and then they were taken down, so not being in rerum natura they could not be enjoyed longer. 3. And this is a good excuse for not delivering them to the Plaintiff on the first day of November, and so a good performance of the Award, Co. Lit. 206. b. If A. be bound to B. that C. shall marry Jane such a day, and B. the Obligee doth marry her himself before that day, the Obligor is excused; because by his means the Condition could not be performed. There is a difference taken where a Man is bound to deliver things which are in his Custody, and other things which are not in his possession; as in the first Case, to deliver my Horse or Dog, for such I may secure in my Stable from casualties: But in this Case it is expressly said in the Award, that the Property of the Seats was in the Plaintiff, and that they were fixed in the Church, so that he could not possibly secure them in his own House without subjecting himself to an Action; and an Award that one Man shall take the Goods of another, is void. But if the Plea is not good, yet if the umpirage be naught, judgement is to be given for the Defendant, for the advantage is saved to him upon the Demurrer. And as to that, the umpirage is but of one side, for the Plaintiff is to do nothing, nor is the Defendant to be acquitted of all Suits. To which it was answered by the Plaintiff's Council, That the umpirage was of both sides; for there being Suits depending, 'tis awarded, that each shall bear his own Charges, which is a benefit to the Defendant, for otherwise (seeing the right was in the Plaintiff) the Defendant should have paid the Plaintiffs Costs as well as his own, for which he cannot now sue without forfeiting his Bond: Curia advisare vult. Squibb versus Hole. THE Plaintiff brought an Action of Escape, Escape. Action of Escape; the Process was upon Bond, not made within the Jurisdiction of an Inferior Court, and therefore no Escape. and declares That he prosecuted one J. S. in the court of Ely, upon a Bond made infra Jurisdictionem of that Court, upon which he was taken, and the Defendant suffered him to Escape. Upon Not Guilty pleaded, the jury found a special Verdict to this effect, viz. That there was such a Bond, upon which there was such a prosecution, and such an Escape as in the Declaration, but they find farther, that this Bond was not made infra Jurisdictionem Curiae. Maynard Sergeant, who Argued for the Plaintiff, said that this Action was commenced in an Inferior Court, upon a Bond which the Plaintiff sets forth to be infra Jurisdictionem Curiae; and that the Defendant was Arrested and suffered to Escape; and whether (if in truth the Bond was not made infra Jurisdictionem) an Action of Escape would lie, or whether all the proceedings are coram non Judice, was the doubt. He took a difference, where an Inferior Court hath an Original jurisdiction of the Cause, and hath conusance of such a Suit as is brought there; for in such Cases the proceed are not extra-judicial; but if an Action is brought where properly no Action doth lie, all the proceed there are coram non Judice. At the Common Law, one who had a particular jurisdiction to hold Pleas within a Liberty, could not hold any Plea of a thing which did arise out of the Liberty, for though it was transitory in its nature, yet being alleged not within his jurisdiction, it was ill, 2 Inst. 231. But when the cause of Action arises infra Jurisdictionem, that gives them Authority to proceed; and therefore it would be hard that the judge and Officer should be punished by a construction to make all extra judicial, when they have no possible way of finding, whether in truth the Cause did arise within the * Post. Crowder and Goodwin. jurisdiction of the Court or not: But the Officer is bound to obey the Process of the Court, if it appear (as in this Case,) that they had conusance of it; the judge is likewise bound to grant the Process, otherwise he is subject to the Plaintiffs Action for his refusal. In some Cases, the Plaintiff himself may not know where the Bond was made; as if he be Executor of the Obligee, etc. Besides, in this Case 'tis set forth, That in the Action below, the Defendant pleaded non est factum, and so had admitted the jurisdiction, or at least had waived it; and it would be an insufferable mischief, if after all this labour and charge the Defendant might avoid all again. North Chief justice said, That if this Cause had been tried before him, he would have Nonsuited the Plaintiff, because he had not proved the truth of what he laid down in his Declaration, viz. That the Bond was made infra Jurisdictionem Curiae. But as to the Matter as it stood upon the special Verdict, he inclined, that as to the Plaintiff (who knew where the Bond was made) all the proceed were coram non Judice; but as to the Officer it was otherwise, for the Pleint and Process would be a good Excuse for him, in an Action of false Imprisonment Judgement. And afterwards, by the Opinion of three judges, viz. the Chief Justice, Wyndham and Atkyns justices, judgement was given for the Defendant, That this was no Escape, and that though the Party had admitted the jurisdiction, by his Plea of non est factum below, yet that could not give the Court any jurisdiction, which had not any originally in the Cause; and the Case of * Roll. Abt. tit. Escape 809 pl. 45. Richardson versus Bernard was cited as an Authority in point, where the Plaintiff in an Action brought against an Officer, declared in Hull, upon a Bond made at Hallifax, and had judgement and Execution, and the Defendant escaped: And in an Action brought for this Escape, the Declaration was held ill, because it did not allege the Bond to be made infra Jurisdictionem Curiae. Ellis justice, of a contrary Opinion in omnibus. sam's versus Dangerfield. THE Plaintiff being Collector of the Hearth-Mony, Departure. brought an Action of Debt, upon a Bond, against his Sub-Collector, conditioned to pay such Sums as he should receive (within 14 days after receipt) at such a place in the City of Worcester, as the Plaintiff should appoint. The Defendant pleads payment. The Plaintiff assigns a breach, in nonpayment of such a Sum received at a place by him appointed. The Defendant rejoins, that the Plaintiff appointed no place; and the Plaintiff demurred. And after Argument for the Plaintiff, by Jones Sergeant, this was adjudged a departure, because the Defendant ought to have pleaded first, that he had paid all but such a Sum, for which as yet, the Plaintiff had appointed no place of payment; and judgement was given accordingly. Smith versus Hall. IN an Action brought against the Defendant for false Imprisonment, he justified by virtue of a Latitat, False Imprisonment doth not lie, but an Action on the Case against the Sheriff for refusing sufficient Bail. which the Plaintiff agreed in his Replication; but farther set forth, that after the Arrest, and before the Return of the Writ, he tendered sufficient Bail, which the Defendant refused; and Issue was joined upon the tender, which was found for the Plaintiff. Newdigate Sergeant, moved in Arrest of judgement. 1. Though it was an Offence in the Defendant, who was the Sheriff's Bailiff, to refuse good Bail, when tendered, yet 'tis not an Offence within the Statute 23 H. 6. cap. 10. because a Sheriff's Bailiff is not an Officer intended in that Statute, neither will this Offence make him a Trespasser, ab initio, because the taking was by lawful Process, Cro. Car. 196. * Roll. Abr. 2 part 561. pl. 9 Salmon versus Percival. The Defendant, as Bailiff to the Sheriff, is not the proper Officer to take Bail, but the Sheriff himself must do it, and therefore an Action on the Case must lie against the Bailiff, for not carrying the Party before the Sheriff, in order to put in Bail; but an Action of false Imprisonment will not lie. 2. The action is laid, quare vi & armis, etc. in ipsum (the Plaintiff) insultum fecit & ipsum imprisonavit & ut Prisonat à tali loco ad talem locum adducebat & detinuit contra consuetudinem Angliae & sine cause rationabili per spacium trium dierum. The Defendant pleaded quoad venire vi & armis necnon totam transgressionem, praeter the taking and detaining him three days, non Culp. and as to that, he pleaded the Latitat, Warrant and Arrest, ut supra; but the Verdict being only against the Defendant, upon the second Issue, and nothing appearing to be done upon this, and entire Damages given; 'tis for that reason ill. North Chief justice, If the Writ and Warrant were good, than the refusing Bail is an Offence within the Statute, of 23 H. 6. And as 'tis an Oppression, so 'tis an Offence also at the Common Law; but an Action on the Case, and not of false Imprisonment lieth against the Officer; for it would be very unreasonable, by the refusal of Bail to make the Arrest tortuous ab initio A special Action on the Case, had therefore been the proper remedy against the Sheriff, but not against the Officer; for an Escape will not lie against him, but it must be brought against the Sheriff. Krens versus Kirby. Surrender by a Disseisor, not good. IN Ejectment, the Lessor of the Plaintiff claimed under a Surrender made to him by William Kirby, who had an Estate in the Land, after the decrease of his Father, but entered during his Life, and thereby became a Disseisor; and his Estate being now turned into a Right, he made the Surrender to the Lessor of the Plaintiff; all which was found by special Verdict at the Trial; and it was adjudged that the Surrender was void. It was pretended at the Trial, that the Father, who was Tenant for Life, had suffered a Common Recovery in the Lord's Court, and so his Estate was forfeited, for which the Son might enter, and then his Surrender is good. But the Court answered, that without a particular Custom for the purpose, the suffering a Recovery would work no Forfeiture of the Estate; but if it did, 'tis the Lord and none else who can enter: And so judgement was given for the Defendant. Duck versus Vincent. DEBT upon Bond conditioned to perform Covenants, Plea to debt upon bond not good. one of which was for payment of so much Money upon making such Assurances. The Defendant pleaded he paid the Money such a day, but doth not mention when the Assurance was made, that it might appear to the Court the Money was immediately paid pursuant to the Condition; and for that reason the Court were all of Opinion that the Plea was not good: And judgement was given for the Plaintiff upon Demurrer. Smith versus Shelberry. IN Assumpsit the Plaintiff declared that he was possessed of a Term of 80 years, Assumpsit upon a mutual promise. and it was agreed between him and the Defendant, that he should assign all his interest therein to the Defendant, who proinde should pay 250 l. and that he promised, that in consideration that the Plaintiff at his request had likewise promised to perform all on his part, that he would also perform all on his part; and then sets forth that the Defendant had paid a Guinea in part of the said 250 l. and that he, viz. the Plaintiff obtulit se to assign the Premises by Indenture to the Defendant, which was written and sealed and would have delivered it to him, but he refused, and assigns the breach in Nonpayment of the Money, to which the Defendant demurred. And it was said for him by Baldwin Sergeant, Ex parte Def. that this was not a good Declaration, because the Assignment ought to precede the Payment, and that it was not a mutual promise, neither was the obtulit se well set forth; but this was a Condition precedent on the Plaintiffs side without the performance whereof no Action would lie against the Defendant, Vide 7 Co. Ughtreds Case, fol. 10. b. because it was apparent by the Plaintiffs own showing, that the Money was not to be paid till the Assignment made; for the Plaintiff is to assign, and the Defendant proinde, which is as much as to say, pro assignatione, is to pay the Money: Like the Case in Dyer 76. a. Assumpsit against the Defendant that he promised pro 20 Marks to deliver 400 Weight of Wax to the Plaintiff, the Pronoun Pro makes the Contract conditional. Ex parte Quer. But Pemberton Sergeant for the Plaintiff held the Declaration good, and that it was a mutual promise, and that the Plaintiff need not aver the performance; Hill & Thorn Postea. for in such Cases each has remedy against the other; and 'tis as reasonable that the Plaintiff should have his Money before he make the Assignment, as that the Defendant should have the Term assigned before he paid the Money: And of that Opinion was the Court, only justice Atkins doubted. Ellis justice cited a Case adjudged in the King's Bench which was, as he thought, Styles Rep. 186 Postea. very hard, viz. An Assignment was made between A. and B. that A. should raise Soldiers, and that B. should transport them beyond Sea, and reciprocal promises were made for the performance (as in this Case) that A. who never raised any Soldiers may yet bring his Action upon this promise against B. for not transporting them, which is a far stronger Case than this at Barr. It was agreed here that the Tender and Refusal (had it been well pleaded) would have amounted to, and have been equivalent with a full performance, but the Plaintiff hath not done as much as he might, for he should have delivered the Indenture to the Defendants use, and then have tendered it. But judgement was given for the Plaintiff. Hays versus Bickerstaffe. Covenant not conditional by the words paying and performing. IN Covenant brought by the Lessee, who declared that the Lessor covenanted with him, that he paying the Rent and performing the Covenants on his part to be performed shall quietly enjoy. The breach assigned was a disturbance by the Lessor, who pleads, that till such a time the Plaintiff did quietly enjoy the thing demised without disturbance; but then he cut down Wood, which was contrary to his Covenant, and then and not before he entered; and so by the Plaintiffs not performing his Covenant the Defendants Covenant ceases to oblige him; whereunto the Plaintiff demurred. The Question was, Whether the Defendants Covenant was conditional or not? For if it amount to a Condition, than his Entry is lawful; but if it be a Covenant, 'tis otherwise, for than he ought to bring his Action. Pemberton Sergeant for the Plaintiff. Ex parte Quer. That this Covenant is not conditional, for the words paying and performing signify no more than that he shall enjoy, etc. under the Rents and Covenants, and 'tis a Clause usually inserted in the Covenant for quiet Enjoyment: Indeed the word paying in some Cases may amount to a Condition; but that is where without such construction the party could have no remedy. But here are express Covenants in the Lease, and a direct reservation of the Rent, to which the party concerned may have recourse when he hath occasion. A liberty to take Pot-water paying so many Turns, etc. 'tis a Condition. The Words paying and yielding make no Condition, Cook and Herle, Postea. Vaugh. 32. nor was it ever known that for such Words the Lessor entered for Nonpayment of Rent; and there is no difference between these Words and the Words paying and performing, Bennets Case in B. R. ruled no Condition, Duncomb's Case, Owen Rep. 54. Barrel Sergeant for the Defendant said, Ex parte Def. that the Covenant is to be taken as the parties have agreed; and the Lessor is not to be sued if the Lessée first commit the breach: Modus & Conventio qualify the general Words concerning quiet Enjoyment. The Court took time to consider, and afterwards in this Term judgement was given for the Plaintiff, Sid. 266, 280. that the Covenant was not conditional. Atkins justice doubted. Simpson versus Ellis. Debt by a Bailiff of a Liberty. DEBT upon Bond by the Plaintiff, who was chief Bailiff of the Liberty of Pontefract in Yorkshire, but he did not declare as Capital Ballivus, but yet by the whole Court it was held good; for otherwise the Defendant might have craved Oyer, and have it entered in haec verba, and then have pleaded the Statute of 23 H. 6. that it was taken * Sand. 161. Sid. 383. Latch. 143. colore Officii, but now it shall be intended good upon the Demurrer to the Declaration. And Ellis justice said that so it was lately resolved in this Court in the Case of one Conquest. And judgement was given for the Plaintiff. Mason versus Stratton, Executor, etc. Judgement kept on foot per Fraudem. 2 Cro. 35, 102. Vaugh. 103, 104. DEBT upon Bond. The Defendant pleads two judgements had against his Testator, and sets them forth, and that he had but 40 s Assets towards satisfaction. The Plaintiff replies, that the Defendant paid but so much upon the first judgement, and so much upon the second, and yet kept them both on foot per Fraudem & Covinam. And the Defendant demurred specially. 1 Roll. Abr. 802. 2 Cro. 626 Because the Replication is so complicated that no distinct Issue can be taken upon it; for the Plea sets forth the judgements severally, but the Plaintiff puts them both together, when he alleges them to be kept per Fraudem. But on the other side it was said, that all the Precedents are as in this Case, Sid. 333. 8 Co. Turner's Case 132. 9 Co. Meriel Tresham's Case 108 And of that Opinion was all the Court, that the Replication was good: And judgement was given for the Plaintiff. Suffeild versus Baskervil. No Breach can be assigned upon a Promise. DEBT upon Bond for performance of all Covenants, Payments, etc. In an Indenture of Lease wherein the Defendant for and in consideration of 400 l. lent him by the Plaintiff, granted the Land to him for 99 years, if G. so long lived, provided if he pay 60 l. per annum quarterly during the Life of G. or shall within two years after his death pay the said 400 l. to the Plaintiff, than the Indenture to be void, with a Clause of Reentry for Nonpayment. The Defendant pleads performance. The Plaintiff assigns for breach, that 30 l. for half a year was not paid at such a time during the Life of G. The Defendant demurs. For that the breach was not well assigned, because there is no Covenant to pay the Money, only by a Clause Liberty is given to re-enter upon Non payment. The Court inclined, that this Action would not lie upon this Bond, in which there was a Proviso and no express Covenant, and therefore no Breach can be assigned. Benson versus Idle. AUdita Querela, The Case upon Demurrer was, Estoppel not well pleaded with a Traverse. That before the King's Restauration the now Defendant brought an Action of Trespass against the Plaintiff for taking his Cloth, who then pleaded, that he was a Soldier and compelled by his Fellow Soldiers, who threatened to hang him as high as the Bells in the Belfry if he refused; To this the Plaintiff than replied de injuriâ suâ propriâ, etc. And it was found for him, and an Elegit was brought, and the now Plaintiffs Lands extended. Then comes the Act of * 12 Car. 2. cap. 11. Indemnity which pardons all Acts of Hostility done in the Times of Rebellion, and from thenceforth discharges personal Actions for or by reason of any Trespass commited in the Wars, and all judgements and Executions thereon before the first day of May, 1658. but doth not restore the party to any Sums of Money, mean Profits or Goods taken away by virtue of such Execution, or direct the party to give any account for the same; which Act made by the Convention was confirmed by 13 Car. 2. cap. 7. And upon these two Acts of Parliament the Plaintiff (expressly averring in his Writ that the former Recovery against him was for an Act of Hostility) now brought this Audita Querela. The Defendant pleads the former Verdict by way of Estoppel, and concludes with a Traverse absque hoc that the taking of his Goods was an Act of Hostility. This was argued by Holloway Sergeant for the Plaintiff, and by Jones Sergeant for the Defendant, who chief insisted, That the Defendant having pleaded the substance of this Matter before, and being found against him, that he being now Plaintiff could not aver any thing against that Record. But the Court were all of Opinion, that judgement should be given for the Plaintiff; for his remedy was very proper upon the Convention, and without the Statute of Confirmation; and here is no Estoppel in the Case; for whether this was an act of Hostility or not, is not material; neither was it or could it be an Issue upon the former Trial, because all the Matter then in Question was concerning the Trespass, which, though found against the now Plaintiff, yet it might be an act of Hostility; but if it were an Estoppel, 'tis not well pleaded with a Traverse, and the Court hath set it at large. DE Term. Sanctae Trin. Anno 27 Caroli II. in Communi Banco. Mayor and Cominalty of London, versus Gatford. IN an Action of Debt brought by the Plaintiffs, Construction of an Act of Parliament. for a Fine of 13 l. 6 s. 8 d. set upon the Defendant, by the Steward of the Burrow of Southwark, for that he refused to take the Oath and serve as a Scavenger in the said Burrough, though duly Elected according to Custom there; and upon nil debt pleaded, the jury found a special Verdict, the substance of which was, Viz. They find the Act of 14 Car. 2. cap. 2. And the Proviso therein, which governed this Case, viz. That all Streets and Lanes in London, Westminster, and the Liberties thereof shall be Paved as they have always used to be, Then follows another Clause, by which it is Enacted, That Scavengers shall be Chosen in the City of London, and the Liberties thereof, according to the Ancient Usage and Custom; so likewise in the City of Westminster; but nothing is therein mentioned of Southwark. And in all other places a new form of choosing is prescribed. Viz. In the other Parishes the Constables, Churchwardens, etc. shall meet in the Easter-Week, and choose two Scavengers in every respective Parish: so that the intent of the Act must be (though Southwark is not named) that still Scavengers shall be chosen there, as formerly; because London and the Liberties thereof are to follow their Ancient Custom in the choice of this Officer: and Southwark is within the City Liberties But whether the Custom of choosing of him was not taken away by this Statute, and so the Fine not well Assessed, was the Question. Ex partte Quer. Baldwyn for the Plaintiffs argued, That admitting in Southwark a Scavenger may be chosen, according to the new form prescribed in the Act; yet this Statute was only in the * Hob. 173. Dyer 341. b. Affirmative, and did not thereby take away the custom of choosing him at the Leet. Like the Case in Dyer 50. An Act that the Youngest Son shall have an Appeal of the death of his Father; Hob. 17. yet that doth not exclude the Eldest, because 'tis the Common Law, and there are no words to restrain him. In the 11 Co. 63. Doctor Foster's Case: By the Statute of 35 Eliz. against Recusants, which gives the Penalty of 20 l. ꝓ Month against the Offender; the 12 d. for the neglect of every Sunday, given by a former * 1 Eliz. Statute is not taken away. But where there is a Negative Clause in an Act of Parliament, the Law is otherwise: as an Act that the Sessions of the Peace shall be kept at Beaumarris tantum, & non alibi infra Com̄, etc. and the justices kept it at another place, and several were Indicted before them at that time; but the justices were fined, and all their proceed held Coram non Judice, by reason of the Negative Prohibition, Dyer 135. 1 Inst. Sect. 500 2 Inst. 68 By the Statute of Magna Charta, cap. 34. a Woman shall bring no Appeal but for the death of her Husband, which she might at Common Law, before the making of this Statute; if therefore she is Heir to her Father, the Appeal which she might have brought for his death, by these Negative words is taken away. Ex parte Def. Barrel for the Defendant; though this Law be in the Affirmative; yet since it doth not prejudice any person, neither can it be injurious if Scavengers are chosen as directed by the Act, it shall be taken as a Negative Clause; and for this many Instances may be given; as, the Statute for devising part of the Testators Land, doth not take away the custom to devise the whole, for that would be an apparent prejudice to the Parties; but not so in this Case, where 'tis not found that the Lord of the Manor sustains any loss, for he is to have nothing when a Scavenger is chosen in the Leet; nor are the Inhabitants prejudiced, for by this New choosing their Streets shall be kept as clean as before. The Form here established doth not consist with the Custom, and so hath the Effect of a Negative Clause, Hob. 298. It appears by the Scope of the Act, That the intent of the Parliament was to take away those old Customs of choosing, because the Customs are expressly saved in London and Westminster; but in all other places a new way is appointed. The pavement of the Streets in Southwark shall be as before; but that Clause goes no farther, and therefore concerns not the Case of a Scavenger, whose duty is not to pave, but cleanse the Streets. And the words, viz. Liberties of the City of London, will not help, because Southwark is not comprehended under them, in that Clause, no more than are the Lands which they have in Yorkshire; for the word Liberties * Postea 48. there, is taken for Limits, and can admit of no other Construction. Lastly, that the Plaintiff cannot have judgement, because he hath not alleged the Custom to be, That the Steward may Fine, in case of the refusal to take the Oath, etc. and Customs are to be taken stictly. The Chief justice and justice Atkins said, That 'tis true, Scavengers are under the power of the Court Leet, by Custom, and in case of refusal may be fined, as well as an Ale-Taster. But this Act of Parliament having taken notice, that there were Scavengers before that time, and Southwark being therein named as distinct from the Liberties of London; for 'tis provided, That Westminster, London, and the Liberties thereof, and Southwark are to have the Streets paved, as before, which doth not belong to the Office of a Scavenger; and so that Clause in the Act concerns not this Case. But where it Enacts, That in London and Westminster, Scavengers shall be chosen as before; but in all other places appoints a new way; this is as much as if it had said, That Scavengers shall be chosen in every place as by the Act prescribed, and no other way, except in London and Westminster; and so great is the inconsistency between the Custom and the Act, that they cannot stand both together; therefore, though the Act is but temporary, the Custom is suspended, and though it may be some damage to the Lord to make such Construction, yet that will not alter the Case; for Lawmakers' are presumed to have respect to the public Good more than to any private Man's profit; and the Lord may be said in this case to have dispensed with his Interest, being a Party to the Act, and consenting thereunto. But Wyndham and Ellis justices, inclined, That the Custom did continue, because the Act was in the Affirmative; and therefore they would not construe it to take away a Man's Right and Interest, or a Custom where he hath a benefit, as the Lord of the Manor had in this Case, who is prejudiced by the loss of his Fees; and the intent of the Statute seemed to them to be, That Scavengers should be chosen where none were before, but not to take away Customs for choosing of them: But another Argument was desired by Sergeant Howel, the Recorder of London. Rozal versus Lampen. Variance in the Actions no Barr. COnspiracy. Rozal declares, That a Replevin was brought against him and others, and that the Defendant Lampen appeared for him without any Warrant, and avowed in his Name, and suffered judgement to pass against him, and that 22 l. 10 s. Damages were recovered against him, at such a place. Lampen pleads a Recovery in a former Action brought by the now Plaintiff, the Record of which being recited in the Plea, appears to be the same with this; but only here the place is mentioned where the Damages were recovered, which was omitted in the former Action, to which Lampen had pleaded a Reteiner, by one of the then Defendants in Replevin, and upon a Demurrer had judgement. But the truth of the Case was, That judgement was not then given for him that his Plea was good; for the Court were all of Opinion, that it was naught; but because the Declaration was not good, for want of mentioning the place where, the Damages were recovered, which the Plaintiff had amended now. The Plaintiff demurred again; because of this Variance between the two Actions upon the Defendants own showing. Ex parte Quer. Post. Rose and Standen, Put and Roster. Sir Robert Shaftoe for the Plaintiff, insisted, That a Recovery in an Action is no bar, where there is a substantial variance, as here there is; and that so it has been adjudged, in the Case of Leach and Thompson, 1 Roll. Abr. 353. lit. B. pl. 1. where the Plaintiff declared, That he, at the Defendants request, having promised to Marry the Defendant's Daughter, he promised to pay him 1000 l. Upon Non Assumpsit pleaded, judgement was given for the Defendant. And the Plaintiff brought another Action for the same Sum, and then laid the promise to pay 1000 l. cum inde requisitus esset; and it was adjudged, that the former judgement was no bar to the last Action; because there was a Material difference between the two Promises, one being laid without Request, and so the Money was to be paid in a convenient time; and in the last, the Request is made part of the Promise, and must be specially alleged, with the time and place where it was made. So in this Case, The Plaintiff had not declared right in his first Action, which he had amended now, and therefore the former judgement shall be no bar to him. In Robinson's Case, there was a Mistake in the Writ, viz. A Formedon in Remainder, for that in Reverter; and held no bar; so by a parity of reason there shall be no bar here, because the first Declaration was mistaken, Stat. 3 H. 7. c. 1. Syd. 316. and it was vitium Clerici; Vide 2 Cro. 284. Level versus Hall. Barton Serjeant contra; This is no new Action; Ex parte Def. for the ground of it is, not where the Damages was done, or recovered, but the appearing without a Warrant; and so having pleaded a Reteiner and had judgement, and now pleading that judgement to this Action, and averring 'twas for one and the same thing, 'tis a good bar, which the Plaintiff by his Demurrer hath confessed. Adjornatur. Milward versus Ingram. INdebitatus Assumpsit for 50 l. and quantum meruit, One promise pleaded in discharge of another, good before the breach. Mod. Rep. 205. the Defendant confesses both; but pleads, That after the promise made, and before the Action brought, they came to an Account concerning divers Sums of Money, and that he was found in arrear to the Plaintiff 30 s. whereupon, in consideration the Defendant promised to pay him the said 30 s. the Plaintiff likewise promised to release and acquit the Defendant of all Demands. The Plaintiff demurred. Seys Serjeant argued for the Plaintiff; Ex parte Quer. that though one promise may be discharged by another, yet a duty certain cannot, (as in this Case) where a demand was of a Sum certain, by the Indebitatus; besides, this Plea is in nature of an Accord, which cannot be good without an averment of satisfaction given, Broke Account 46, 48. Neither is it said, that the Plaintiff promised in consideration that the Defendant ad instantiam of the Plaintiff had promised. Ex parte Def. But it was answered by Sergeant Hopkins, and admitted to be true, That where a Matter is pleaded by way of accord, it must be averred to be executed in all Points but that was not the present Case. ● Cro. 100 The Defendant hath pleaded, that he and the Plaintiff had accounted together, and so the Contract is gone by the Account. 2. That he was discharged of the Contract by parol, both which the Plaintiff had now admitted by his Demurrer. And it will not be denied that a Parol discharge of an Assumpsit is good; as if A. promises to perform such a Voyage within a time limited, and the breach assigned was that he did not go the Voyage: The Defendant pleads, that the Plaintiff exoneravit eum, and upon Demurrer it was held good, 22 Ed. 4. 40. 3 H. 6. 37. Object. If it be objected, that 'tis no Consideration to pay a just Debt; for if 30 s. were due, of right it ought to be paid, and that can be no reason upon which to ground a Promise. Answ.. 'Tis a good Consideration to pay Money on the day which the party is bound to upon Bond, because it is paid without Suit or Trouble, which might be otherwise a loss to the Plaintiff. But in this Case here is an express Agreement, and before there was only a Contract in Law, Cro. Car. 8. Flight versus Crasden. Curia. North Chief justice. It has been always taken that if there be an Assumpsit to do a thing, and there is no breach of the promise, that it may be discharged by Parol; but if it be once broken, than it cannot be discharged without Release in a writing. In this Case there are two Demands in the Declaration, to which the Defendant pleads an Account stated, so that the Plaintiff can never after have recourse to the first Contract which is thereby merged in the Account. If A. sells his Horse to B. for 10 l. and there being divers other deal between them; if they come to an account upon the whole, and B. is found in arrear 5 l. A. must bring his insimul computasset, for he can never recover upon an Indebitatus Assumpsit; and of the same Opinion were the other three justices; and though it was not said ad instantiam of the Plaintiff that he promised, yet it was adtunc & ibidem, and so should be intended that the Defendant made the Promise at the instance of the Plaintiff, and so judgement was given for the Defendant. Daws versus Sir Paul Pindar. COvenant to pay a Sum of Money within a year after one Nokes shall be admitted to the Office of Secretary to the Governor of Barbadoes. Barbadoss, whether governed by the Laws of England, so that the Statute of buying Offices extends to it. The Defendant pleads that that the Governor of Barbadoes and the Council there have power of probate of Wills, and granting of Administration; that the Secretary belongs and is an Officer to the said Governor and Council as Register, and is concerned about the registering the said Wills, and so his Office concerns the Administration of justice; and then sets forth that this Covenant, upon which the Plaintiff brought his Action, was entered into upon a corrupt Agreement, and for that reason void. The Plaintiff replies (protestando) that this Office concerned not the Administration of justice; and protestando that here was no corrupt Agreement; pro placito he saith, that Barbadoes is extra quatuor Maria, and was always out of the Allegiance and power of the Kings of England till King Charles the First reduced that Island to his Obedience, which is now governed by Laws made by him, and not by the Laws of England. The Defendant rejoins protestando that this Island was governed by the Laws of England long before the Reign of King Charles the First, and confesses it to be extra quatuor Maria, but pleads that before King Charles had that Island, King James was seized thereof, and died such a day so seized; after whose death it descended to King Charles the First, as his Son and Heir; and that he being so seized, 2 Julii in the third year of his Reign granted it under the great Seal of England to the Earl of Carlisle and his Heirs at such a Rent, absque hoc that King Charles the First acquired this Island by Conquest. Baldwyn Serjeant demurred, for that the Traverse is ill; Ex parte Quer. for the most material thing in the Plead was, whether Barbadoes was governed by the Laws of England, or by particular Laws of their own? And if not governed by the Laws of England then the Statute made 5 E. 6. cap. 16. concerning the Sale of Offices doth not extend to this place. He said that it was but lately acquired, and was not governed by the Laws of England, that it was first found out in King James his Reign, which was long after the making of that Statute, and therefore could not extend to it. The Statute of 1 E. 6. cap. 7. Enacts, That no Writ shall abate if the Defendant (pending the Action) be created a Duke or Earl, etc. And it has been doubted whether this Act extended to a Baronet, being a Dignity created after the making thereof, Sir Simon Bennets Case, Syd. 40. Cro Car. 104. Statutes of England extend no more to Barbadoes than to Scotland or Virginia, New England, Isles of Jersey and Gernsey; 'tis true, an Appeal lies from those Islands to the King in Council here, but that is by Constitutions of their own. No Statute did extend to Ireland till poinding's Law, nor now unless named. In Barbadoes they have Laws different from ours, as, That a Deed shall bind a Feme Covert, and many others. Ex parte Def. Seys Serjeant contra. He agreed that the Traverse was ill, and therefore did not endeavour to maintain it, but said there was a departure between the Declaration and the Replication; for in the Declaration the Plaintiff sets forth that Nokes was admitted Secretary apud Insulam de Barbadoes, viz. in Parochia Sancti Martini in Campis; and in the Replication he sets forth, that this Isle was not in England, which is in the nature of a departure; as Debt sur obligat' 1 Maii, the Defendant pleads a Release 3 Maii; the Plaintiff replies primo deliberat' 4 Maii; 'tis a departure; for he should have set forth that the Bond was 4 Maii primo deliberat', Quaere, Bro. Departure 14. So in a Quare Impedit the Bishop pleaded that he claimed nothing but as Ordinary. The Plaintiff replies Quod tali die & anno he presented his Clerk, and the Bishop refused him; the Bishop rejoins, that at the same day another presented his Clerk, so that the Church became litigious; and the Plaintiff surrejoyns that after that time the Church was litigious he again presented, and his Clerk was refused; this was a Departure, Bro. Departure. So likewise as to the place, the Tenant pleads a Release at C. The Demandant saith that he was in Prison at D. and so would avoid the Release as given by Duress; and the Tenant saith that he gave it at L. after he was discharged and at large, 40 E. 3. Bro. 32. 1 H. 6.3. The Plaintiff might have said that Nokes was admitted here in England, without showing it was at Barbadoes; for the Grant of the Office of Secretary might be made to him here under the Great Seal of England, as well as a Grant of Administration may be made by the Ordinary out of his Diocese. 2. Except. Viz. By the Demurrer to the rejoinder; the Plaintiff hath confessed his Replication to be false in another respect, for by that he hath owned it: The Defendant hath pleaded that King James was seized of this Island, and that it descended to King Charles, etc. and so is a Province of England; whereas before he had only alleged that it was reduced in the time of King Charles, his Son, and so he hath falsified his own Replication. And besides, this is within the Statute of 5 Ed. 6. for the Defendant saith, that the Plaintiff hath admitted Barbadoes to be a Province of England; and it doth not appear that ever there was a Prince there, or any other person, who had Dominion except the King and his Predecessors; and then the Case will be no more than if the King of England take possession of an Island, where before there was vacua possessio, by what Laws shall it be governed? certainly by the Laws of England. This Island was granted to the Earl of Carlisle and his Heirs under a Rent payable at the Exchequer, for which Process might issue, and it descends to the Heirs of the Earl at the Common Law. And if it be objected, that they have a Book of Constitutions in Barbadoes; that is easily answered; for 'tis no Record, neither can the judges take any notice of it. 'Tis reasonable that so good a Law as was instituted by this Statute of Edw. 6. should have an extensive construction, and that it should be interpreted to extend as well to those Plantations as to England,; for if another Island should be now discovered it must be subject to the Laws of England. Curia advisare vult. Lever versus Hosier. THIS was a special Verdict in Ejectment. Recovery suffered of Lands in a Liberty, passeth Lands in a Vill distinct within that Liberty. Mod. Rep. 206. Postea. The Case upon the Pleading was: viz. Sir Samuel Jones being Tenant in Tail of Lands in Shrewsbury and Cotton being within the Liberties of Shrewsbury, suffers a Common Recovery of all his Lands lying within the Liberties of Shrewsbury; and whether the Lands in Cotton, which is a distinct Vill, though within the Liberties, shall pass, was the Question. And it was argued by Sergeant Jones, that they should not pass; for though Lands would pass so by a Fine, because it was the Agreement of the Parties; yet in a Recovery 'tis otherwise, because more certainty is required therein. But in Fines no such Certainty is required, and therefore a Fine de Tenementis in Golden-Lane hath been held good though neither Vill, Parish or Hamlet is mentioned. Cro Eliz. 693. Cro. Jac. 574. Addison and Ottoway, Postea. But there being a Vill called Walton in the Parish of Street, and a Fine being levied of Land in Street, the Lands in Walton did not pass, unless Walton had been an Hamlet of Street, and the Fine had been levied of Lands in the Parish of Street. And the reason of this difference is, because in Fines there are Covenants, which, though they are real in respect of the Land, yet 'tis but a personal Action, in which the Land is not demanded ex directo; but in a Recovery greater preciseness is required, that being a Praecipe quod reddat where the Land itself is demanded, and the Defendant must make Answer to it, Cro. Jac. 574 5 Co. 40. Dormer's Case. The Word * Antea 41. Liberty properly signifies a Right, Privilege or Franchise, but improperly the extent of a place, Hill. 22 & 23 Car. 2. Rot. 225. B. R. Waldron's Case, Hutton 106. Baker and Johnson's Case. Liberties in judgement of Law are incorporeal, and therefore 'tis absurd to say that Lands which are corporeal shall be therein contained. They are not permanent having their existence by the King's Letters Patents, and may be destroyed by Act of Parliament; they may also be extinguished, abridged or increased, and a Vinire fac of a * Rast. Ent. 267. Liberty or Franchise is not good; 'tis an equivocal Word and of no signification, that is plain, and therefore is not to be used in real Writs, Rast. Entr. 382. There is no Praecipe in the Register to recover Lands within a Liberty, neither is there any authority in all the Law Books for such a Recovery; and therefore if such a thing should be allowed many inconveniences would follow; for a good Tenant to the Praecipe would be wanting, and the intent of the Parties could not supply that. But Barton Serjeant said that this Recovery would pass the Lands in Cotton; for as to that purpose, there was no difference betweéns a Fine and a Recovery; Postea. 2 Roll. Abr. 20 Godb. 440. they are both become Common Assurances, and are to be guided by the agreément of the Parties, Cro. Car. 270, 276. 'Tis true, a Fine may be good of Lands in an Hamlet, Lieu conus or Parish, 1 H. 5. 9 Cro. Eliz. 692. Jones 301. Cro. Jac. 574. Monk versus Butler. Yet in a * Godb. 440. contra. Scire Fac to have Execution of such Fine the Vill must be therein mentioned, Bro. Brief 142. The demand must be of Lands in a Vill, Hamlet, or at farthest in a Parish, Cro. Jac. 574. And of that Opinion was the whole Court (absent Ellis) who was also of the same Opinion at the Argument, and accordingly in Michaelmas Term following judgement was given, that by this Recovery the Lands in Cotton did well pass. And North Chief justice denied the Case in Hutton 106. Postea. to be Law, where 'tis said, A Common Recovery of Lands in a Lieu conus is not good; and said that it had been long disputed whether a Fine of Lands in a Lieu conus was good; and in King James his time the Law was settled in that Point, that it was good; and by the same reason a Recovery shall be good, for they are both amicable Suits and Common Assurances, and as they grew more in practice the judges have extended them farther. A Common Recovery is held good of an Advowson; and no Reasons are to be drawn from the Visne, or the Execution of the Writ of Seisin, because 'tis not in the Case of adversary Proceed, but by Agreement of the Parties, where 'tis to be presumed each knows the others meaning. Indeed the Cursitors are to blame to make the Writ of Entry thus, and ought not to be suffered in such practice. Where a Fine is levied to two, the Fee is always fixed in the Heirs of one of them; but if it be to them and their Heirs, yet 'tis good, though incertain; but a Liberty is in the nature of a Lieu conus, and may be made certain by Averment. The jury in this Case have found Cotton to be a Vill in the Liberty of Shrewsbury, and so 'tis not incorporeal. Alford versus Tatnel. JVdgment against two, who are both in Execution, Mod. Rep. 170. and the Sheriff suffers one to escape; the Plaintiff recovers against the Sheriff, and hath satisfaction, the other shall be discharged by an Audita Querela. Osbaston versus Stanhope. General Replication good. DEBT upon Bond against an Heir, who pleaded that his Ancestor was seized of such Lands in Fee, and made a Settlement thereof to Trusteés, by which he limited the uses to himself for Life, Remainder to the Heirs Males of his Body, Remainder in Feé to his own right Heirs, with power given to the Trusteés to make Leases for threé Lives or 99 years. The Trustées made a Lease of these Lands for 99 years, and that he had not Assets praeter the Reversion expectant upon the said Lease. The Plaintiff replies protestando that the Settlement is fraudulent, pro placito saith that he hath Assets by descent sufficient to pay him; and the Defendant demurs. Ex parte Def. Newdigate Serjeant. The Bar is good, for the Plaintiff should not have replied generally that the Defendant hath Assets by descent, but should have replied to the praeter, Hob. 104. Like the Case of Goddard and Thorlton Yelv. 170. where in Trespass the Defendant pleaded that Henry was seized in Fee, who made a Lease to Saunders, under whom he derived a Title, and so justifies. The Plaintiff replies, and sets forth a long Title in another person, and that Henry entered and intruded. The Defendant rejoins, that Henry was seized in Fee and made a Lease ut prius, absque hoc that intravit & se sic intrusit; and the Plaintiff having demurred, because the Traverse aught to have been direct, viz. absque hoc quod intrusit, and not absque hoc that Henry intravit, etc. it was said the Replication was ill; for the Defendant having alleged a Seisin in Fee in Henry, which the Plaintiff in his rejoinder had not avoided, but only by supposing an intrusion which cannot be of an Estate in Fee, but is properly after the death of Tenant for Life; for that reason it was held ill. Ex parte Quer. But Pemberton Sergeant for the Plaintiff held the Replication to be good. The Defendants Plea is no more than Riens per descent; for though he pleads a Reversion, 'tis not chargeable, because 'tis a Reversion after an Estate Tail, and therefore the pleading the Lease is not material; for if it were a Lease expired yet the Plaintiff could not recover, and therefore the praeter is wholly idle and insignificant, of which the Plaintiff ought not to take notice, because the Lands, which come under the praeter, are not chargeable. The Plaintiff hath traversed, as he ought, what is material, and is not bound to take notice of any thing more. And of that Opinion was the whole Court, and held the praeter idle, and the general Replication good; and judgement was given for the Plaintiff. Prince versus Rowson, Executor of Atkinson. EXecutor de son tort cannot retain. Executor de son tort cannot retain. The Defendant in this Case pleaded, that the Testator owed his Wife dum sola 800 l. and that he made his Will; but doth not show that he was thereby made Executor; and therefore having no Title he became Executor de son tort, for which cause his Plea was held ill; and judgement was given for the Plaintiff. Norris versus Palmer. THE Plaintiff brought an Action on the Case against the Defendant for causing him falso & malitiose to be indicted for a Common Trespass in taking away one hundred Bricks, Case after an acquittal upon an Indictment for Trespass. by which means he was compelled to spend great Sums of Money, and that upon the Trial the jury had acquitted him. The Defendant demurred to the Declaration; and Barrel Serjeant said for him, that the Action would not lie; and for a Precedent in the Case he cited a like judgement between Langley versus Clerk in the King's Bench, Trin. 1658. 2 Sid. 100 In which Action the Plaintiff was indicted for a Battery with an intent to ravish a Woman, and being acquitted brought this Action; and the Court after a long Debate gave judgement for the Plaintiff; but agreed that the Action would not lie for a Common Trespass, as if it had been for the Battery only; but the Ravishing was a great scandal, and for that reason the Plaintiff recovered there; but this is an ordinary Trespass, and therefore this Action will not lie. But Pemberton Serjeant held that the Action would lie because it was in the nature of a Conspiracy, Sid. 463, 464. 1 Cro. 291. and done falsely and maliciously knowing the contrary, and thereby the Plaintiff was put to great Charges, all which is confessed by the Demurrer. And the Case cited on the other side is express in the Point; for the Court in that Case could take notice of nothing else but the Battery; for the intent to ravish was not traversable, and therefore it was idle to put it into the Indictment. It is now settled that an Action on the Case will lie for a malicious Arrest where there is no probable cause of Action; and this Case is stronger than that, because in the one the party is only put to Charges, and in the other both to Charges and Disgrace, for which he hath no remedy but by this Action. The Court agreed that the Action would lie after an acquittal upon an Indictment for a greater or lesser Trespass: The like for citing another into the Spiritual Court without cause, 3 Ass. 13. 1 Rol. Abr. 112. pl. 9 Postea. F. N. B. 116. D. 7 E. 4. 30. 10 H. 4. Fitz. Conspiracy 21. 13. 3 E. 3. 19 The Defendants Council consented to wave the Demurrer, and plead and go to Trial. The King versus Turvil. The King presented, being entitled by a Simoniacal Contract, his Presentee shall not be removed though the Simony is pardoned. QUare Impedit. The King was entitled to a Presentation by the Statute of 31 Eliz. cap. 6. because of a Simoniacal Contract made by the rightful Patron, and he accordingly did present. Then comes the Act of General Pardon, 21 Jac. cap. 35. by which under general Words (it was now admitted) that Simony was pardoned: In which Act there is a beneficial Clause of Restitution: viz. The King giveth to his Subjects all Goods, Chattels, Debts, Fines, Issues, Profits, Amerciaments, Forfeitures and Sums of Money forfeited by reason of any Offence, etc. done. And whether the Kings Presenteé or the Patron had the better Title was the Question. This Case was only mentioned now, but argued in Michaelmas Term following by Sergeant Jones, that the King's Presenteé is entitled; he agreed that Simony was pardoned, but not the consequences thereof; for 'tis not like the Case where a Stroke is given at one time and death happens at another; if the Stroke, which is the first offence, is pardoned before the death of the party, that is a Pardon likewise of the Felony; for 'tis true the Stroke being the cause of the death, and that being pardoned all the natural Effects are pardoned with the Cause. But legal Consequences are not thus pardoned; as if a Man is outlawed in Trespass, and the King pardons the Outlawry, the Fine remains, 6 E. 4. 9 8 H. 4. 21. 2 Roll. Abr. 179. In this Act of Pardon, there are words of Grant, but the Presentation is not within the Clause of Restitution; for 'tis an Interest and not an Authority vested in the King, and therefore a thing of another nature than what is intended to be restored; because it is higher, and shall not be comprehended amongst the general words of Goods and Chattels, etc. which are things of a lower nature, and are all in the personality, Cro. Car. 354. Conyers Sergeant, argued for the Title of the Patron, Ex parte Def. and said, that there were three material Clauses in this Act. 1. A Pardon of the Offences therein mentioned in general and particular words. 2. That all things not excepted shall be pardoned by general words, as if particularly named. 3. The Pardon to be taken most favourably for the Subject; upon which Clauses it must necessarily follow, that this Offence is pardoned, and then all the consequences from thence deduced will be likewise pardoned; and so the Patron restored to his Presentation, for all Charters of Restitution are to be taken favourably, Pl. Com. 252. The Presentation vests no legal Right in the Presentee; for in the Case of the King, 'tis revocable after Institution and before Induction, Co. Lit. 344. b. So likewise a second Presentation will repeal the first, Rolls 353. And if the Kings Presentee dies before Induction, that is also a Revocation; if therefore the Party hath no legal Right by this Presentation, and the King by the Simony had only an authority to present, and no legal Interest vested, then by this Act he hath revoked the Presentation, and the right Patron is restored to his Title to present. The Court were all of Opinion (absent Ellis) That the Kings Presentee had a good Title, and by consequence the Patron had no right to Present this turn; for here was an Interest vested in the King; like the Case where the King is entitled to the Goods of a Felo de se, by Inquisition, and then comes an Act of Indemnity, that shall not divest the King of his Right. But where nothing Vests before the Office found, a Pardon before the Inquisition extinguishes all Forfeitures, as it was resolved in Tombs Case. So if the Pardon in this Case had come before the Presentation, the Party had been restored Statu quo, etc. The King can do no more, the Bishop is to do the rest; neither is the Presentation revoked by this Act; it might have been revoked by implication in some Cases; as where there is a second Presentation; but such a general revocation will not do it: and judgement was given for the Plaintiff, and a Writ of Error brought, but the Cause was ended by Agreement. Hill versus Pheasant. Gaming at several meetings, whether within the Statute. AN Action of Debt was brought upon the Statute of 16 Car. 2. cap. 7. made against deceitful and disorderly Gaming, which Enacts, That if any person shall play at any Game, other than for ready Money, and shall lose any Sum, or other thing played for, above the Sum of 100 l. at any one time or meeting, upon Tick, and shall not then pay the same; that all Contracts and Securities made for the payment thereof shall be void, and the person winning shall pay triple the Money lost. It happened that the Defendant won 80 l. at one meeting, for which the Plaintiff gave Security; and another meeting was appointed, and the Defendant won 70 l. more of the Plaintiff; being in all above 100 l. And if this was within the Statute, was the Question. The like Case was in the Kings-Bench, Trin. 25 Car. 2. Rot. 1230. between Edgberry and Roseberry; and in Michaelmas Term following, this Case was argued, and the Court was divided, which the Plaintiff perceiving, Anonymus, Postea. desired to discontinue his Action; but the better Opinion was, that it was not within the Statute, though if it had been pleaded, That the several meetings were purposely appointed to elude the Statute, Sid. 394. in might be otherwise. Calthorp versus Heyton. Traverse not good; viz. Absque hoc quod legitimo modo oneratus. IN Replevin; The Defendant avowed, for that the King being seized in Fee of a Manor, and of a Grange, which was parcel of the Manor, granted the Inheritance to a Bishop, reserving 33 l. Rend to be yearly issuing out of the whole, and alleges a Grant of the Grange from Sir W. W. (who claimed under the Bishop) to his Ancestors in Fee; in which Grant there was this Clause: Viz. If the Grantee or his Heirs shall be legally charged by Distress, or with any Rent due to the King or his Successors, upon account of the said Grange, that then it should be lawful for them to enter into Blackacre, and distrein till he or they be satisfied. And afterwards the Grantee and his Heirs were, upon a Bill Exhibited against them in the Exchequer, decreed to pay the King 4 l. per Annum, as their proportion out of the Grange, for which he distreined, and so justified the taking. The Plaintiff pleads in bar to the Avowry, and traverseth, that the Defendant was lawfully charged with the said Rent; and the Defendant demurred. Baldwyn Sergeant, maintained the Avowry to be good, Ex parte Def. having alleged a legal charge, and that the Bar was not good; for the Plaintiff traverseth quod Defendens est ligitimo modo oneratus, which being part matter of Law, and part likewise matter of Fact is not good; and therefore if the Decree be not a legal charge, the Plaintiff should have demurred. But on the other side, it was argued by Seys Sergeant, Ex parte Quer. That the Avowry is not good; because the Defendant hath not set forth a legal charge, according to the Grant, which must be by Distress, or some other lawful way, and that must be intended by some execution at Common Law; for the coactus fuit to pay, is not enough; a Suit in Equity is no legal disturbance, Moor 559. The same Case is Reported in 1 Brownl. 23. Selby versus Chute. Besides, the Defendant doth not show any Process taken out, or who were Parties to the Decree, and a Que estate in the Case of a Bishop is not good, for he must pass it by Deed. North and the whole Court: A Rent in the King's Case lies in Render, and not in Demand, and after the Rend day is past, he is oneratus, and the Decree is not material in this Case; for the charge is not made thereby, but by the Reservation, for payment whereof the whole Grange is chargeable. The King may distrain in any part of the Land, he is not bound by the Decree to a particular place; that is in favour only to the Purchasor, that he should pay no more than his proportion. As to the Que estate, the Defendant hath admitted that, by saying been & verum est, that Sir W. W. was seized. The Traverse is ill, and judgement was given for the Avowant. Vaughan versus Wood Trespass justified, for taking corrupt Victuals. Mod. Rep. 202. TRespass for taking Beef; The Defendant pleads a Custom to choose Supervisors of Victuals at a Court Leet; That he was there chosen, and having viewed the Plaintiffs Goods, found the Beef to be corrupt, which he took and burned. The Plaintiff demurs, for that the Custom is unreasonable, and when Meat is corrupt and sold, there are proper remedies at Law, by Action on the Case, or presentment at a Leet, 9 H. 6. 53. 11 Ed. 3. 4. 6. Vide Stat. 18 Eliz. cap. 3. But the Court held it a good Custom, and judgement was given for the Defendant; the Chief justice being not clear in it. Chapter of Southwel versus Bishop of Lincoln. Grant of next Avoidance, not bind the Successor. Mod. Rep. 204. IN a Quare Impedit, the Question upon pleading was, Whether the Grant of the next Avoidance by the Chapter, was good or not to bind the Successor. The doubt did arise upon the Statute of 13 Eliz. cap. 10. which was objected not to be a public * Yelv. 106. Act, because it extends only to those who are Ecclesiastical persons; or if it should be adjudged a public Law, yet this is not a good Grant to bind the Successor; for though the Grant of an Avoidance is not a thing of which any profit can be made, yet it is an * Cro. Eliz. 441. Hereditament within the meaning of that Statute, by which, among other things, 'tis Enacted, That all Grants, etc. made by Dean and Chapter, etc. of any Lands, Tithes, Tenements, or Hereditaments, being parcel of the Possessions of the Chapter, other than for the Term of 21 Years, or 3 Lives, from the time of the making the said Grant, shall be void. But it was agreed, by the Court, to be a general Law; like the Statute of Non Residency, which hath been so ruled; and that this Presentment or Grant of the next Avoidance, was not good, because it was made by those who were not Head of the Corporation, and it must be void immediately, or not at all; and judgement was given accordingly. Threadneedle versus Lynam. THere being two Manors usually let for 67 l. 1 s. 5 d. by the year; Lease by a Bishop and more than the old Rent reserved, good. Mod. Rep. 203. a Bishop lets one of them for 21 years reserving the whole Rent, and whether this was a good Lease within the Statute of 1 Eliz. cap. 19 was the Question, which depended upon the construction of the Words therein, viz. All Leases to be void upon which the old accustomed Rent is not reserved; and here is more than the old Rent reserved; and this being a private Act is to be taken literally. North Chief justice agreed that private Acts, which go to one particular thing are to be interpreted literally; but this Statute extends to all Bishops, and so may be taken according to Equity; and therefore he and Wyndham and Atkins justices held the Lease to be good: But this Case was argued when Vaughan was Chief justice, and he and justice Ellis were of another Opinion. DE Term. Sancti Mich. Anno 27 Car. II. in Communi Banco. Thorp versus Fowle. No more Costs than Damages. NOTA. In this Case the Court said that since the Statute, which gives no more Costs than Damage, 'tis usual to turn Trespass into Case. Cooper versus Hawkeswel. Words. IN an Action upon the Case for these Words: I dealt not so unkindly with you when you stole a Stack of my Corn: Per Curiam, the Action lies. Escourt versus Cole. Words. IN an Action on the Case for Words laid two ways; the last Count was Cumque etiam, which is but a recital, and dubitatur whether good. Sharp versus Hubbard. Six Months for proving of a Suggestion. THE six Months in which the Suggestion is to be proved must be reckoned according to the Calendar Months, and 'tis so computed in the Ecclesiastical Court. Crowder versus Goodwin. Justification by Process out of inferior Court. IN Assault and Battery and false Imprisonment, as to the Assault, etc. the Defendant pleads Not-Guilty; and as to the Imprisonment he justifies by a Process out an inferior Court, and upon Demurrer these Exceptions were taken to his Plea. 1. The Defendant hath set forth a Precept directed Servienti ad Claven, and 'tis not said Ministro Curiae. 2. 1 Rol. 484. Cro. Car. 254. Dyer 262. b. It was to take the Plaintiff and have him ad proximam Curiam, which is not good; for it should have been on a day certain, like adam's and Flythe's Case, * Cro. Jac. 571. Mod. Rep. 81. where a Writ of Error was brought upon a judgement in Debt by Nil dicit in an inferior Court; and the Error assigned was, That after Imparlance a day was given to the Parties till the next Court; and this was held to be a Discontinuance, not being a day certain. 3. 'Tis not said ad respondend' alicui. 4. Nor that the Action arose infra Burgum. 5. The Precept is not alleged to be returned by the Officer. To all which it was answered, That a Pleint is but a Remembrance and must be short, Rast. 321. and when 'tis entered the Officer is excused; for he cannot tell whether 'tis infra * Squibb versus Hole antea 29. Jurisdictionem or not. And as to the first Exception, a Precept may be directed to a private person, and therefore Servienti ad Clavem is well enough. Then as to the next Exception, 'tis likewise well set forth to have the Plaintiff ad proximam Curiam; for how can it be on a day certain when the judge may adjourn the Court de die in diem? Then ad respondendum, though 'tis not said alicui 'tis good, though not so formal; and 'tis no Tort in the Officer, but 'tis to be intended that he is to answer the Plaintiff in the Plaint. As to the fourth Exception the Defendant sets forth that he did enter his Plaint secundum consuetudinem Curiae Burgi, and when the Plaintiff declared there, he shown that the Cause did arise infra Jurisdictionem. And as to the last, The Officer is not punishable though he do not return the Writ. The end of the Law is that the Defendant should be present at the day; and if the Cause should be agreed, or the Plaintiff give a Release when the Defendant is in custody, no Action lies against the Officer if he be detained afterwards. But the Chief justice doubted, that for the second Exception the Plea was ill, for it ought to be on a day certain, and likewise it ought to be alleged infra Jurisdictionem. But the other threé justices held the Plea to be good in omnibus, and said that the inferior Court had a jurisdiction to issue out a Writ, and the Officer is excusable though the cause of Action did not arise within the jurisdiction, which ought to be shown on the other side: And so judgement was given for the Defendant. Snow and others versus Wiseman. Traverse necessary where omitted, is substance. TRespass for taking of his Horse: The Defendant pleads that he was seized of such Lands, and entitles himself to an Herriot. The Plaintiff replies that another person was jointly seized with the Defendant, Et hoc paratus est verificare. The Defendant demurs generally, because the Plaintiff should have traversed the sole Seisin. But it was said for him that the sole Seisin need not be traversed, Sid. 300. because the matter alleged by him avoids the Bar without a Traverse. In a Suggestion upon a Prohibition for Tithes, the Plaintiff entitled himself by Prescription under an Abbot, and shows the Unity of Possession by the Statute of 31 H. 8. by which the Lands were discharged of Tithes. Yelv. 231. Pl. Com. 230. 231. The Defendant pleads that the Abbey was founded within time of Memory, and confesseth the Unity afterwards, and the Plea was held good; for he need not traverse the Prescription, because he had set forth the Foundation of the Abbey to be within time of Memory, which was a sufficient avoiding the Plaintiffs Title, Yelv. 31. The Plaintiff therefore having said enough in this Case to avoid the Bar; if he had traversed it also it would have made his Replication naught, Cro. Jac. 221. like the Case of * Beadle and Lull, where in an Ejectment upon a Lease made by Elizabeth, the Defendant pleads that before Elizabeth had any thing in the Lands, James was seized thereof in Fee, and that it descended to his Son and so derives a Title under him, and that Elizabeth was seized by Abatement. The Plaintiff confesses the Seisin of James, but that he devised it to Elizabeth in Fee, and makes a Title under her absque hoc that she was seized by Abatement; and upon a Demurrer the Replication was held ill, because the Plaintiff had made a good Title before the Devise to James; and so neéd not traverse the Abatement. The Chief justice held that the omitting of a Traverse where necessary is matter of substance, and the concluding with hoc paratus est verificare, when it should be Et hoc pet̄ quod inquiratur ꝑ patriam, or de hoc ponit super patriam or vice versa is matter of substance, and the wanting a Traverse is of the same nature; and here the Traverse of the sole Seisin is necessary because it is issuable: And of the same Opinion were the other judges (absent Ellis) and therefore judgement was given for the Defendant. Wilson versus Ducket. TRespass for taking of his Corn; Distress not good of Corn in Shocks. the Defendant pleads Not-Guilty to all but 360 Sheaves made into Stacks, which the Defendant distrained for Rent and Services in arrear and due to him. The Plaintiff demurs, for that they could not be distreined in Sheaves: A Distress of them is lawful damage pheasant or in a Cart for Rent, but not here. Per Jones Sergeant, it is naught, Ex parte Quer. because nothing is to be distrained, but what may be known and returned in the same condition as when taken; and therefore a Replevin will not lie of Money out of a Bag or Chest, and in this Case the * Altered by Statute 2 Will. & Mar. Corn cannot be returned in the same condition, because a great deal may be lost in the carrying of it home, 18 H. 3. 4. 2 H. 4. 15. 22 E. 4. 50. 11 H. 5. 14. 1 Inst. 47. Roll. 667. pl. 17. And of that Opinion was all the Court. Curtis versus Bourn. IN Waste, Tenant in Common need not join in an Action of Waste. one Tenant in Common brings an Action of Waste alone; and the Question upon the Plead was, whether he should not have joined with his Companion; and for an authority that they should join in this Action, Scroggs Serjeant cited Rolls Abr. 2 part 825. pl. 11. where it is said, that if a Reversion be granted to two, and the Heirs of one of them, yet they must join in an Action of Waste. But it was answered by Pemberton Sergeant, That Rolls cited that Case in his Abridgement, out of the 1 Inst. 53. which seémed to be the Opinion of my Lord Coke, grounded upon the Authorities there cited in the Margin, which he said did not warrant any such Opinion. The difference upon the Books is, where Tenant in Common demands an intirety, the Writ shall abate, and therefore in the Case of Hill and Hart, Cro. Eliz. 357. where the Plaintiff had only a third part of a Reversion in Common, it was held he should not have an Action of Waste alone, Co. Lit. 197. b. Moor 374. because it would be very inconvenient, that the third part should be delivered in Execution. Co. Lit. 198. Yelv. 161. 'Tis true, they shall join in the personalty, where Damages are to be recovered, but they shall always sever in the realty; and therefore in this Case, Waste being a mixed Action, and savouring of the realty, that being the more worthy, draws over the personalty with it, and therefore the Action by one alone is good; but if they had made a Lease for years, than they should have joined in an Action of Waste: And of that Opinion was the whole Court. Anonymus. Tout temps priest, no good Plea after Imparlance. THE Question was, whether tout temps priest was a good Plea, after a general Imparlance. And it was insisted for the Plaintiff, That this Plea was repugnant, because the imparlance proves the contrary. 'Tis true, in an Action of Debt upon a Bond, such Plea is good after an Imparlance, because 'tis to save the Penalty; and 'tis held in Dyer f. 300. Cro. Jac. 627. contra. b. That uncore priest alone, without saying tout temps, in such case is good, though Leonard, the Custos Brevium, and who was a Learned Man, was there of another Opinion. But when a single Duty is demanded, and the party is entitled to damages for nonpayment, in such case the Plea of tout temps priest is not good. And though it was objected, that the difference is, that the Defendant after Imparlance should not plead any thing contrary to the matter in the Declaration to which he had imparled; as Bastardy to an Action brought by an Heir, etc. Yet the Court were all of Opinion, That the Plea was not good, because 'tis inconsistent with the Imparlance; for petit licentiam interloquendi, is no more in English, than for the Defendant to say, I will take time and resolve what to do; which is contrary, to be always ready. DE Termino Sancti Hill. Anno 27 & 28 Car. II. in Communi Banco. Stubbins versus Bird & alios. IN an Action of Trover and Conversion; The Defendant concludes in Abatement, it shall be in his election to have it taken in Barr. Mod. Rep. 117. the Plaintiff declared for taking 600 Load of Oar. The Defendant pleads, That the Plaintiff never had any thing in the said 600 Load of Oar, nisi conjunctim & pro in diviso, with two others, and so concludes in Abatement. The Plaintiff replies, That J. S. was seized in Fee of a Close, in which this Oar was digged; and being so seized, he died; after whose death the said Close descended to A. and B. his two Daughters, and Coheirs; and that the Plaintiff married one of them, and the other was also married: and so the Plaintiff and the other Husband and their Wives, were seized in Right of their said Wives of this Close. The afterwards, and before the Action brought, 2000 Load of Lead Oar digged out of the said Close, and laid there in heaps; and then a Partition was made by Deed, of the said Close and the Oar, and 1000 Load was allotted to one Sister and her Husband, and the other 1000 Load was allotted to the Plaintiff, per quod he became solus possessionat of the said 1000 Load in severalty; and being so possessed, the Defendant found 600 Load, parcel of the said 1000 Load, and converted it, Absque hoc that the Plaintiff had any thing after the Partition conjunction with any other person. The Defendant rejoins, that at the time of the conversion the Plaintiff had nothing but conjunction with the other, as before. 1. And the Plaintiff demurred, Ex parte Quer. for that the Defendant ought to have traversed the Partition; for though the Possession was joint, the Partition had made it several, by which the joint Possession was confessed and avoided, and therefore the Traverse good; like the Rule laid down in my Lord Hobert 104. in Digby and Fitzherberts' Case, Trespass, tali die; the Defendant confesses it, but pleads a Release of all Actions, and traverseth all Trespasses after; so here the Plaintiff hath traversed the joint possession after the Partition. 2. The rejoinder is a departure from the Plea, which is, that the Plaintiff never had any thing but jointly with others; and the rejoinder is, that at the time of the conversion he was jointly possessed; which is a manifest difference in point of time, and such as will make a Departure, 33 H. 14. Bro. Departure 28. 13. Ex parte Def. It was argued by Sergeant Hopkins for the Defendant, that the Replication was not good; for the Plaintiff therein had alleged a Partition by Deed, and doth not say, hic in Curia prolat: And in all Cases where a Man pleads a Deed, by which he makes himself either party or privy, he must produce it in Court: As where the Defendant justifies in Trespass, that before the Plaintiff had any thing. One Purfrey was seized in Fee of the place where, etc. And by Indenture, etc. demised it to Corbet, excepting the Wood, etc. Habendum, for the Life of Ann, and covenanted quod licitum foret for the said Corbet to take House-boot, etc. That he assigned his Interest to Ann, and that the Defendant, as her Servant, took the Trees; and upon Demurrer the Plea was held naught, because (though a Servant) having justified by force of a Covenant, he did not show the Indenture, 2 Cro. 291. Purfrey versus Grimes. 6 Rep. Bellamy's Case. 1 Leon. 309. Rol. Rep. 20. If a thing will pass without a Deed, yet if the Party pleads a Deed, and makes a Title thereby, he must come with a * profert hic in Curia. As to the Objection, That there was a Departure, he argued to the contrary: For the Defendant in his rejoinder insists only on that which was most material; and the Plaintiff in his Replication had given him occasion thus to Rejoin; and though he had left out some of the time mentioned in the Bar, yet the would hurt the Plead, because a fair Issue was tendered; for if at the time of the conversion he was jointly seized, he could not be entitled to the Action alone. Judgement. And afterwards, in Trinity-Term following, the Chief justice delivered the Opinion of the Court, That the Plea was good in Bar, though pleaded in Abatement, and the Defendant hath election to plead either in Bar or Abatement; the nature of a Plea in Abatement, is to entitle the Plaintiff to a better Writ, but here the Defendant shows, that the Plaintiff hath no cause of Action, and so it shall be taken to be in Barr: And it hath been expressly resolved, That where the Plea is in Abatement, if it be of necessity, that the Defendant must disclose matter of bar, he shall have his election to take it either by way of Bar or Abatement, 2 Roll. Rep. 64. Salkil versus Shilton. So, where Waste was brought in the tenet, the Tenant pleads a Surrender to the Lessor, and demands judgement, if he should be charged in the tenet, because it should have been in the tenuit, and this was held a good Plea, 10 H. 7.11. Whereupon judgement was given for the Defendant; the Chief justice at first doubting about the Departure, and advised the Plaintiff to wave his Demurrer, and to take issue upon payment of Costs. Daws versus Harrison. THE Plaintiff entitles himself, as Administrator to Daws, Administration pleaded, and not loci istius ordinarius, good. and shows that Administration was granted to him by the Official of the Bishop of Carlisle, but did not allege him to be loci istius Ordinarius; And Jones Sergeant demurred to the Declaration, because it did not appear that the Official had any jurisdiction, Pl. Com. 277. a. 31. H. 6. 13. Fitz. Judg. 35. 22 H. 6. 52. 36 H. 6. 32, 33. Sed non allocatur. For the whole Court were of Opinion, That the Declaration was good, and that he shall be intended to have jurisdiction; but if it had been in the Case of a Peculiar, Cro Jac. 556. Palm. 97. Sid. 322. it cannot be intended that they have any authority, unless set forth: And so judgement was given for the Plaintiff. Mason versus Caesar. IN Trespass for pulling down of Hedges; Commoner may abate Hedges made upon his Common. the Defendant pleads that he had right of Common, in the place where, etc. and the Hedges were made upon his Common, so that he could not in ea parte enjoy his Common in tam amplo modo, etc. and so justifies the pulling them down. And they were at issue, whether the Defendant could enjoy the Common in tam amplo modo, etc. and there was a Verdict for the Defendant, and judgement being stayed till moved on the other side. Scroggs Serjeant moved in Arrest of judgement, because the Plea was ill, and the Issue frivolous; for 'tis impossible that he should have Common where the Hedges are: 5 Rep. 100 9 Rep. 55. And therefore the Defendant ought to have brought an Action upon the Case, or a quod permittat. He cannot abate the Hedges, though he might have pulled down so much as might have opened a Way to his Common. 2 Cro. 195, 229. The Lord hath an Interest in the Soil, and a Commoner hath no authority to do any thing but to enter and put in his Beasts, and not to throw down Quickset Hedges, for that is a shelter to his Beasts. But the Court were of Opinion, That the Defendant might abate the Hedges, for thereby he did not meddle with the Soil, but only pulled down the erection; and the Book of 29 E. 3. 6. was express in this point. Vide 17 H. 7. 10. 16 H. 7. 8. 33 H. 6. 31. 2 Ass. 12. And nothing was said concerning the Plea, and so the Defendant had judgement. Hocket and his Wife versus Stiddolph and his Wife. Verdict cured a bad Declaration. IN an Action of Assault and Battery brought by the Plaintiff and his Wife, against the Defendant and his Wife; the jury found quoad, the beating of the Plaintiffs Wife only, that the Defendants are Guilty, and quoad resid ' they find for the Defendants. And it was moved in arrest of judgement, by Scroggs Sergeant, That the Declaration is not good, because the Husband * Yelv. 106. Drury versus Dennis. Sid. 376. joins with the Wife, which he ought not to do upon his own showing; for as to the Battery made upon him, he ought to have brought his Action alone; and the finding of the jury will not help the Declaration, which is ill in substance, and thereupon judgement was stayed; but being moved again the next Term, the Court were all of Opinion, That the Declaration was cured by the Verdict, and so judgement was given for the Plaintiff. Goodwin qui tam, etc. versus Butcher. AN Information was brought upon the Statute of 32 H. 8. Buying a pretended Title. cap. 9 made against buying pretended Titles, which gives a Forfeiture of the value of the Land purchased, unless the Seller was in possession within a year before the Sale. After Verdict for the Plaintiff, it was moved in arrest of judgement, by Sergeant barrel, because the Information had set forth the right of these Lands purchased to be in J. S. and that the Son of J. N. had conveyed them by general words, 2 Anders. 57 as descending from his Father; which Title of the Son, the Defendant bought; whereas, if in truth the Title was in J. S. then nothing descended from the Father to the Son, and so the Defendant bought nothing. Sed non allocatur; for if such construction should be allowed, there could be no buying of a pretended Title within the Statute, unless it was a good Title; but when 'tis said, as here, that the Defendant entered and claimed colore of that Grant or Conveyance, which was void, yet 'tis within the Statute, so the Plaintiff had his judgement. Wine versus Rider & al. TRespass against five, Quare clausum fregerunt, Traverse immaterial. and took Fish out of the Plaintiffs Several and Free-Fishery. Four of them pleaded Not Guilty, and the fifth justified, for that one of the other Defendants is seized in Fee of a Close adjoining to the Plaintiffs Close; and that he and all those etc. have had the sole and separate Fishing in the River which runs by the said Closes, with liberty to enter into the Plaintiffs Close, to beat the Water, for the better carrying on of the Fishing; and that he, as Servant to the other Defendant, and by his Command did enter, and so justified the taking, absque hoc that he is Guilty aliter vel alio modo. The Plaintiff replies, That he did enter the injuria sua propria, absque hoc That the Defendants Master hath the Sole Fishing. The Defendant demurs; Ex parte Def. and Newdigate Sergeant argued for him, That the justification is good, for when he had made a local justification, 2 Cro. 45, 372. he must traverse both before and after, as he has done in this Case. 2. The Plaintiffs Replication is ill, for he ought not to have waved the Defendants Traverse, and force him to accept of another from him; because the first is material to the Plaintiffs Title, and he is bound up to it, Hob. 104. 3. There was no occasion of a Traverse in the Replication; for where a Servant is Defendant, de injuria sua propria is good, with a Traverse of the Command. Ex parte Quer. But on the Plaintiffs side Sergeant Baldwin held the Defendants Traverse to be immaterial; for having answered the Declaration fully in alleging a Right to the sole fishing, and an Entry into the Plaintiffs Close, 2 Cro. 372. 'tis insignificant afterwards to traverse that he is guilty aliter vel alio modo. Then the matter of the Plea is not good, because the Defendant justifies by a Command from one of the other Defendants, who have all pleaded Not-guilty, and they must be guilty if they did command him, for a Command will make a Man a Trespasser. Curia. The Court were all of Opinion, that judgement should be given for the Plaintiff: For as to the last thing mentioned, which was the Matter of the Plea, they held it to be well enough; for the * Mires and Solebay, Post. Servant shall not be ousted of the advantage which the Law gives him by pleading his Master's Command. Then as to the Replication 'tis good, and the Plea is naught with the Traverse; for where the justification goes to a time and place not alleged by the Plaintiff, there must be a Traverse of both. In this Case the Defendant ought to have traversed the Plaintiffs free fishing as alleged by him in his Declaration, which he having omitted, the Plea for that reason also is ill, and so judgement was given for the Plaintiff. DE Termino Paschae Anno 28 Car. II. in Communi Banco. Lee versus Brown. IN a Special Verdict in Ejectment: The Case was this: Where reputed Lands shall pass under general words. viz. There were Lands which re vera were not parcel of a Manor, and yet were reputed as parcel. A Grant is made of the Manor and of all Lands reputed parcel thereof; and whether by this Grant and by these general Words those Lands would pass, which were not parcel of the Manor, was the Question. This Term the Lord Chief justice delivered the Opinion of the Court, That those Lands would pass; Postea. Cro. Car. 308. and they grounded their Opinions upon two Authorities in Co. Entr. fol. 330, 384. The King versus Imber & Wilkins. If the jury had found that the Lands in question had been reputed parcel of the Manor, it would not have passed, had they found no more; because the Reputation so found might be intended a Reputation for a small time, so reputed by a few, or by such as were ignorant and unskilful. But in this Case 'tis found that not only the Lands were reputed parcel, but the reason why they were reputed parcel; for the jury have found that they were formerly parcel of the Manor, and after the division they were again united in the possession of him who had the Manor, which being also Copyhold, have since been demised by Copy of Court Roll togethet with the Manor; and these were all great marks of Reputation, and therefore judgement was given that the Lands did well pass, 2 Roll. Abr. 186. Dyer 350. Wakeman versus Blackwel. Common Recoveries how to be pleaded. QUare Impedit. The Case was; The Plaintiff entitled himself to an Advowson by a Recovery suffered by Tenant in Tail; in pleading of which Recovery he alleges two to be Tenants to the Praecipe, but doth not show how they came to be so, or what Conveyance was made to them, by which it may appear that they were Tenants to the Praecipe; and after search of Precedents as to the form of pleading of Common Recoveries, the Court inclined that it was not well pleaded, but delivered no judgement. Searl versus Bunion. Justification where good. IN Trespass for taking of his cattle: The Defendant pleads that he was possessed of Blackacre pro termino diversorum annorum adtunc & adhuc venture; and being so possessed the Plaintiffs Cattle were doing damage, and he distrained them Damage pheasant, ibidem, and so justifies the taking, etc. The Plaintiff demurs, and assigns specially for cause that the Defendant did not set forth particularly the commencement of the Term of years, but only that he was possessed of an Acre for a Term of years to come; and regularly where a Man makes a Title to a particular Estate, in pleading he must show the particular time of the Commencement of his Title, that the Plaintiff may reply to it. Curia. The Chief justice and the whole Court held that the Plea was good, upon this difference; where the Plaintiff brings an Action for the Land or doing of a Trespass upon the Land, he is supposed to be in possession; but if he will justify by virtue of any particular Estate, he must show the Commencement of that Estate, and then such pleading as here will not be good. But when the Matter is * Yelv. 75. Cro. Car. 138. collateral to the Title of the Land, and for any thing which appears in the Declaration the Title may not come in question, such a justification as this will be good. In this Case no Man can tell what the Plaintiff will reply; 'tis like the Cases of Inducements to Actions, which do not require such certainty as is necessary in other Cases. So where an Action is brought for a Nuisance, and he entitles himself generally by saying he is possessionat' pro termino annorum, 'tis well enough, and he need not to set forth particularly the Commencement, because he doth not make the Title his Case; for which reason judgement was given for the Defendant. Crosier versus Tomlinson Executor. IN an Action on the Case: Statute of Limitations of personal Actions extends to Indebitatus, Assumpsit. The Plaintiff declared that the Defendants Testator being in his Life time (viz. such a day) indebted to the Plaintiff in the Sum of 20 l. for so much Money before that time to his use had and received, did assume and promise to pay the same when he should be thereunto required; and that the Testator did not in his Life time, nor the Defendant since his death, pay the Money though he was thereunto required. The Defendant pleads that the Testator did not at any time within six years make such promise. The Plaintiff replies that he was an Infant at the time of the promise made, and that he came not to full Age till the year 1672. and that within six years after he attained the Age of one and twenty years he brought this Action, and so takes advantage of the promise in the Statute of * 21 Jac. c. 16. Limitations, that the Plaintiff shall have six years after the disability, by Infancy, Coverture, etc. is removed. And the Defendant demurred by Sergeant Rigby, Ex parte Def. and the reason of his Demurrer was, because in the said Proviso Actions on the Case on Assumpsit are omitted. This Act was made for quieting of Estates and avoiding of Suits as appears by the Preamble, and therefore shall be taken strictly; there is an enumeration of several Actions in the Proviso, and this is Casus omissus and so no benefit can be taken of the Proviso. In a Writ of Error upon a judgement brought 4 Car. 1. in the Court of Windsor, the judges held that an Action on the Case for * Cro. Car. 163, 513, 535. Debt upon Escape is out of the Statute, 1 Sand 37. But an Action for Escape is not, Sid. 305. So is Debt for not setting out of Tithes; for these are not grounded upon any Contract. Cro. Car. 513. Hut. 109. slandering of a Man's Title is out of this Act, because such an Action was rare, and not brought without special damages: But Hid Chief justice doubted, 1 Cro. 141. The Lawmakers could not omit this Case unadvisedly, because 'tis within those sorts of Actions enumerated by this Act. This Promise was made to the Plaintiff when he was but a day old, and it would be very hard now after so many years to charge the Executor. Ex parte Quer. But Turner Serjeant argued, that though an Indebitat assumpsit is not within the express words of the Proviso, yet 'tis within the intent and meaning thereof; and so the Rule is taken in 10 Co. 101. in Bewfages Case, quando verba statuti sunt specialia, ratio autem generalis, statutum intelligendum est generaliter. And this is a Statute which gives a general remedy, and the mischief to the Infant is as great in such Actions of Indebitatus assumpsit, as other Actions, and therefore 'tis but reasonable to intent, that the Parliament which hath saved their Rights in Debts, Trovers, etc. intended likewise, that they should not be barred in an Indebitatus Assumpsit. In 2 Anders. 55. Smith versus Colshil: Debt was brought upon a Bond; the Defendant there pleaded the Statute of the 5 E. 6. of selling of Offices; the words of which are, viz. That every Bond to be given, for money or profit for any Office, or Deputation of any Office mentioned in the Statute, shall be void against the Maker. In that case the Bond was given to procure a Grant of the Office, and also to exercise the same: now though this was not within the express words of the Statute, yet the Bond was held void; and if it should be otherwise, the mischiefs which the Statute intended to remedy would still continue; and therefore the intent of the Lawmakers in such cases, is to be regarded, for which reason if Actions of Indebitatus Assumpsit are within the same mischief with other Actions therein mentioned, 2 Anders. 123, 150. Cor. Car. 533. 19 H. 8. 11. such also aught to be construed to be within the same remedy. But he took the Case of * Cro Car. 245. Swain versus Stephens to rule this Case at Bar, in which Case this very Statute was pleaded to an Action of Trover, and the Plaintiff replied, that he was beyond Sea; and upon a Demurrer to the Replication, the Court held Trover to be within the Statute, it being named in the Paragraph of Limitation of personal Actions, which directs it to be brought within the time therein limited; that is to say, all Actions on the Case within six years; and then enumerates several other Actions, amongst which Trover is omitted, yet the Court were then of Opinion, that Trover is implied in those general words. Curia. And of that Opinion was the Chief justice, and Wyndham and Atkyns justices, That upon the whole frame of the Act, it was strong against the Defendant; for it would be very strange that the Plaintiff in this Case, might bring an Action of Debt, and not an Indebitatus Assumpsit. When the Scope of an Act appears to be in a general sense, the Law looks to the meaning, and is to be extended to particular Cases within the same reason; and therefore they were of Opinion, That Actions of Trespass, mentioned in the Statute, are comprehensive of this Action, because 'tis a Trespass upon the Case, and the words of the Proviso save the Infants Right in Actions of Trespass. And therefore, though there are not particular words in the enacting Clause, which relate to this Action, yet this Proviso restrains the severity of that Clause, and restores the Common Law, and so is to be taken favourably; and this Action being within the same reason, with other Actions therein mentioned, ought also to be within the same remedy. But justice Ellis doubted, whether Actions of Trespass could comprehend Actions on the Case; and that when the Parliament had enumerated Actions of Trespass, Trover, Case for Words, etc. If they had intended this Action, they would have named it; he said he was for restoring the Common Law as much as he could, but doubted much, whether this Proviso did help the Plaintiff: But judgement was given for the Plaintiff. Doctor Samways versus Eldsly. COvenant. The Plaintiff declares, Where Covenants are mutual, and where not. That by Indenture made between him and the Defendant, reciting that there were divers Controversies between them, as well concerning the right, title and occupation of Tithes, arising and renewing upon the Fréehold of the Defendant, in T. and upon other Lands held by the Defendant, by a Lease for years from the Plaintiff, under the annual Rent of, etc. and concerning the arrearages of Rent due upon that demise, as concerning other matters; for the determination thereof, the said Parties did by the said Indenture bind themselves, in consideration of 12 d. given to each other, to observe the Arbitration of an Arbitrator, indifferently to be chosen between them, to arbitrate, order and judge between them, de & super praemissis; and the Plaintiff and Defendant mutually covenanted to do several other matters. That the Arbitrator did thereupon afterwards Award, and the Defendant did Covenant with the Plaintiff, that in consideration of the Plaintiffs sealing and delivering (at the Defendants request) one part of a Lease for years (to the Award annexed) for the Rent therein reserved, that the Defendant should pay so much Money for the Tithes. That it was also Awarded by the said Arbitrator, and the Defendant did covenant, that he would be accountable to the Plaintiff for all such arrearages of Rent, Tithes, and Composition-Mony for Tithes, as should be arising and renewing upon the said Land, etc. according to such a value per Annum, whereof the Defendant could not lawfully discharge himself. And the Plaintiff avers, That he hath observed all the Covenants on his part, and that the Defendant hath not observed all the Covenants on his part, and assigns for breach, that he hath not accounted with him for all arrears of Tithes and Composition-Mony for Tithes arising upon the Lands in, etc. and that he hath requested him to account, which he hath refused. The Defendant pleads Actio non: For he says, that 'tis true, there was such an Indenture, as in the Declaration is set forth, and such a Covenant to be accountable as, the Plaintiff hath declared. But saith in eadem Indentura agreatum fuit ulterius & provisum, that the Plaintiff should allow and discount upon the Account, all Sums of Money for Parson's Dinners, at the request of the Plaintiff, and for his concerns laid out and disbursed by the Defendant, and such other Sums which he had direction to lay out; and that such a day paratus fuit & obtulit se & adhuc paratus est, to account for all arrears of Rent, etc. if the Plaintiff would discount, etc. That such a day the Plaintiff would not, and often after refused, and yet doth refuse to allow upon such account all such Sums of Money as the Defendant, at the request, and for the concerns of the Plaintiff, had laid out, and this he is ready to aver; and then he avers, that after, etc. on such a day he did expend several Sums of Money for the Plaintiff, which were just and reasonable to be allowed by the Plaintiff, upon account made by him. To this Plea the Plaintiff demurred, and the Defendant joined in Demurrer which was argued by Turner Sergeant for the Plaintiff, and by Sergeant Seys for the Defendant. This was a bad Plea, for 'tis a Rule in all Law Books, that every Plea ought to answer the matter which is charged upon the Defendant, Ex parte Quer. in the Declaration, which is not done here, because the Defendant doth neither aver that he did account, or confess or avoid, or traverse it, which he ought to do, after the Plaintiff had alleged a request to account, and a refusal. 'Tis an absolute Covenant which charges him to be accountable; and not if the Plaintiff would allow Parson's Dinners, etc. for 'tis impossible that the Plainntiff can make any such allowance, till the Defendant hath accounted; for how can there be a discounting without an Account? If the Plaintiff had told him before the Account, that he would not allow any thing upon the Account, this would not have been prejudicial to bart him of his Action, so as it had been before the request: For if a Man makes a Feoffment in Fee, upon condition that if the Feoffor pay 100 l. at Michaelmas, the Feoffment shall be void; and before Michaelmas the Feoffee tells him that he will not receive the Money at that time; this shall not prejudice him, because 'tis no refusal in Law. The Defendant in this Case is to do the first act, viz. to Account; and when that is neglected by him, it shall never prejudice him who is to do a subsequent act, 5 Co. 19, 20. Higginbottoms Case, 22 & 23 Hallin and Lambs Case. One Covenants to make an Estate in fee, at the Costs of the Covenantee; the Covenantor is to do the first act, viz. to let him know what Conveyance he will make. The like Case was in this Court, between Twiford and Buckly, upon an Indenture of Covenants, wherein one of the parties did Covenant to make a Lease for the Life of the Covenantee, and for two other Lives, as he should name, and the Covenantor was to give possession. The breach assigned was, that the Defendant had not made Livery and Seisin, and upon performance pleaded, the Plaintiff did demux, and upon great debate it was resolved that the Covenant was not broken, because the Plaintiff had not performed that which was first to be done on his part, viz. to name the Lives. It may be objected, that these Covenants have a relation one to the other; and so non-performance of the one, may be pleaded in bar to the other. But to that he answered, they are distinct and mutual Covenants, and there may be several Actions brought against each other. The Case of * Styles 186. 187. Ware and Chappel comes up to this point. Ware was to raise 500 Soldiers, and bring them to such a Port, and Chappel was to find Shipping, for which he sued upon the Covenant, though the other had not raised the Soldiers; for that can be only alleged in mitigation of Damages, and is no excuse for the Defendant, and it was adjudged, that this was not a condition precedent, but distinct and mutual Covenants, upon which several Actions might be brought. This cannot be a Condition precedent, for the Defendant pleads, & ulterius agreat & provisum est that the Plaintiff shall discompt and reimburse the Defendant; and here the word provisum est doth not make a Condition but a Covenant, 27 H. 8. 14, 15. Bro. Condition 7. There is another fault in the Plea, for the Defendant averrs, that the Plaintiff hath not reimbursed him several Sums of Money, which is altogether incertain, for it doth not appear what is due, 28 H. 8. Dyer 28. 9 Ed. 4. 16. 12 H. 8. 6. a. Ex parte Def. But it was argued for the Defendant, that he need not Traverse the Account. As to the first Objection made, that the Plea is not good, because it doth not answer the Declaration, the Rule as to that purpose is generally good; but then the Plaintiff must tell all his Case, which if he omits, he must then give the Defendant leave to tell where his omission is. Sometimes a thing which belongs properly to another, may be pleaded in bar, or discharge, to avoid circuity of Actions; as one Covenant may be pleaded to another, 1 H. 7. 15. 20 H. 7. 4. So where the Lesseé is to be dispunishable of waste, he may plead it to a Writ of waste. The Books note a difference where the Covenant is one or two Sentences; for in the first case one Covenant may be pleaded in discharge of another, but not in the last, Keilway 34. 'Tis true, if the second Covenant had been distinct and independent, it could not have been thus pleaded; but in this Case 'tis not said, that the Covenantor, for himself, his Executors and Administrators doth Covenant, etc. but ulterius agreat & provisum est; so that as 'tis penned provisum est makes a Condition, and then the sense is, I will account if you will discompt, and if you refuse to discompt, I cannot be charged, Dyer 6. 'Tis inutilis labour to make up an account If the other will not allow what he ought, if there be an Annuity pro consilio impenso, etc. and he will not pay the Money, the other is not to be compelled to give his advice, Fitzh. Annuity 27. 25 E. 2. Annuity 44. Curia. The Chief justice and the whole Court were of Opinion that judgement should be given for the Plaintiff; for Arbitrations, Wills and Acts of Parliament are to be taken according to the meaning of the Parties, and Damages are to be given according to the merit of the Case. In this Case the Defendant is bound to account upon request, and to pay what Money is due upon the Account; and 'tis an impertinent question for the Defendant to ask him to make allowance for Parson's Dinners before they come to account: 'Tis as if a Bailiff should say to his Lord, I have laid out so much Money, and I will not account with you unless you will allow it; this is a Capitulation beforehand, and is very insignificant by way of discharge. They have each a remedy upon these mutual Covenants, and the provisum & agreat est doth not amount to a Condition, but is a Covenant; and judgement was given accordingly. justice Ellis said he had a Manuscript Report of the Case of Ware and Chappel, which he said was adjudged upon great Debate. Stoutfil's Case. PRohibition. Tithes not to be paid for Brick or Pigeons. It was agreed clearly that no Tithes ought to be paid for Brick, because 'tis part of the Soil, and so it has been often adjudged: And it was also said that Tithes shall not be paid for Pigeons, unless it be by special Custom. Columbel versus Columbel. THE Plaintiff brought an Action of Debt upon a Bond of 500 l. Award pleaded under Seal and not under Hand, not good. The Defendant demands Oyer of the Bond and Condition, which was to observe an Award of A. B. Arbitrator indifferently chosen to determine all manner of Controversies, Quarrels and Demands concerning the Title of certain Lands; so as the said Award were made and put into writing under the Hand and Seal of the Arbitrator, etc. and then he pleads, that the Arbitrator made no Award. The Plaintiff replies an Award by which such things were to be done, and sets it forth (in haec verba) under the Seal of the Arbitrator. The Defendant rejoins that the Arbitrator made no Award under his Hand and Seal according to the Condition of the Bond. The Plaintiff demurs; for that the Defendant ought to plead the Award under the Hand as well as the Seal of the Arbitrator; for when he produces it in Court, as he doth by a profert hic in Curia, he must plead it formally, as well as produce it; and judgement was given for the Plaintiff. Norris versus Trist. Livery secundum formam Chartae, where good. IN a Special Verdict in Ejectment: The Case was, A Deéd is made to threé, Habendum to two for their Lives, Remainder to the third for his Life, and Livery and Seisin is made to all three secundum formam Chartae. And whether the Livery so made, as if they had all Estates in possession, whereas in truth one of them had but an Estate in Remainder was good, was the Question. On the one side it was said by Sergeant Seys that possession in this Case was delivered according to the form of the Deéd within mentioned, which must be to two for Life, Remainder to the third person, and Livery and Seisin being only to accomplish and perfect the Common Assurances of the Land ought to be taken favourably, ut res magis valeat quam pereat; and therefore if a Feoffment be made of two Acres, and a Letter of Attorney to give Livery, and the Attorney only enters into one Acre, and gives Livery secundum formam Chartae both the Acres pass, Dyer 131 40. Coke Litt. 52. a. But on the other side Serjeant Maynard said that there was something more in this Case than what had been opened; for there was a Letter of Attorney made to give Livery to two, and instead of doing that he makes Livery to them all, which is no good Execution of his Authority, and therefore no Livery was made, the Authority not being pursued. As to the Case in the 1st Institutes my Lord Coke errs very much there in that discourse, for in saying, that if there be a Feoffment of two Acres, and a Letter of Attorney to take possession of both, and he maketh Livery of both, but taketh possession but of one, and that both pass, 'tis not Law; but if the Authority be general, as to make Livery and Seisin, and he take possession of one, and then makes Livery of more secundum formam Chartae, that is good; and this is the difference taken in the Books, 5 Ed. 3. 65. 3 Ed. 3. 32. 43 Ed. 3. 32. 27 H. 8. 6. The Remainder Man in this Case is a mere Stranger to the Livery. There is also a manifest difference between a Matter of Interest, and an Execution of an Authority; for in the first Case it shall be construed according to the Interest which either hath, but an Authority must be strictly pursued. The Court were all of Opinion that the Livery in this Case was good to two for their Lives, Remainder to the third person. Curia. And the Chief justice said, that whatever the ancient Opinions were about pursuing Authorities with great exactness and nicety, yet this Matter of Livery upon Endorsements of Writing was always favourably expounded of later times, unless where it plainly appeared that the Authority was not pursued at all; Sid. 428. as if a Letter of Attorney be made to three jointly and severally, too cannot execute it, because they are not the Parties delegated, they do not agreé with the Authority: And judgement was given accordingly. Richard's versus Sely. THIS was a Special Verdict in Ejectione firmae for Lands in the County of Cornwall: The Case was this; viz. Covenant made to enjoy a Copyhold de anno in annum 'tis a Lease, and so a Forfeiture. Thomas Selimus was seized of the Lands in question for life, according the Custom of the Manor of P. and he together with one Peter Selimus were bound in a Bond to a third person for the payment of 100 l. being the proper Debt of the said Thomas, who gave Peter a Counterbond to save himself harmless. And that Thomas being so seized did execute a Deed to Peter as a Collateral Security to indemnify him for the payment of this 100 l. by which Deéd after a recital of the Counterbond given to Peter, and the Estate which Thomas had in the Lands, he did covenant, grant and agree for himself, his Executors, Administrators and Assigns with the said Peter, that he, his Executors and Administrators should hold and enjoy these Lands from the time of the making of the said Deed for seven years, and so from the end of seven years to seven years, for and during the term of 49 years, if Thomas should so long live. 2 Cro. 301. In which Deed there was a Covenant, that if the said 100 l. should be paid, and Peter saved harmless according to the Condition of the said Counterbond, than the said Deed to be void. The Question was whether this being in the Case of Copyhold Lands will amount to a Lease thereof, and so make a Forfeiture of the Copyhold Estate, there being no Custom to warrant it. Ex parte Quer. This Case was argued this Term by Sergeant Pemberton for the Plaintiff; and in Trinity Term following by Sergeant Maynard on the same side, who said that this was not a good Lease to entitle the Lord to a Forfeiture. It hath been a general Rule, that the Word Covenant will make a Lease, though the Word Grant be omitted; nay a Licence to hold Land for a time without either of those Words will amount to a Lease, much more when the Words are to * 2 Cro. 92, 398. Noy 14. 1 Roll. Abr. 848, 849. Cro. Car. 207. have, hold and enjoy his Land for a Term certain; for those are Words which give an Interest, and so it hath been ruled in Tisdale and Sir William Essex's Case, which is reported by several, and is in Hob. 35. and 'tis now settled that an Action of Debt may be brought upon such a Covenant. And all this is regularly true in the Case of a Fréehold: But if the construing of it to be a Lease will work a Wrong, then 'tis only a Covenant or Agreément and no Interest vests, and therefore it shall never be intended a Lease in this Case, because 'tis in the Case of a Copyhold Estate; for if it should, there would be a Wrong done both to the Lessor and Lessée; for it would be a Forfeiture of the Estate of the one, and a defeating of the Security of the other. It has been generally used in such Cases to consider what was the intention of the Parties, and not to intent it a Lease against their meaning, for which there is an express Authority, 2 Cro. 172. in the Case of Evans and Thomas, Noy 128. in which Howel covenants with Morgan to make a Conveyance to him of Land by Fine, provided that if he pay Morgan 100 l. at the end of thirtéen years, that then the use of the Fine shall be to the Congnisor, and covenants that Morgan shall enjoy the said Lands for thirtéen years, and for ever after if the 100 l. be not paid. The Assurance was not made, and this was adjuged no Lease for thirtéen years, because it was the intent of the Parties to make an Assurance only in the nature of a Mortgage, which is but a Covenant. And this appears likewise to be the intention of the Parties here, because in the very Deed 'tis recited that the Lands are Copyhold. It also sounds directly in Covenant, for 'tis that Peter shall or may enjoy without the lawful let or interruption of the Lessor. All Agreements must be construed secundum subjectam materiam if the Matter will bear it, and in most Cases are governed by the intention of the Parties and not to work a Wrong; and therefore if Tenant in Tail makes a Lease for Life, it shall be taken for his own Life; and yet if before the Statute of Entails he made such Lease, he being then Tenant in Fée-simple, it had been an Estate during the Life of the Lessée; but when the Statute had made it unlawful for him to bind his Heir, than the Law construes it to be for his own Life, because otherwise it would work a Wrong, Hob. 276. Co. Lit. 42. So in this case it shall not amount to a Lease for the manifest inconveniency which would follow, but it shall be construed as a Covenant, and then no injury is done. On the Defendants part it was argued by Sergeant Newdigate, that though this was in the Case of a Copyhold, Ex parte Def. that did not make any difference; for the plain meaning of the Parties was to make a Lease: But where the Words are doubtful and such as may admit of divers constructions, whether they will amount to a Lease or not, there they shall be taken as a Covenant to prevent a Forfeiture. So also if they are only Instructions, as if a Man by Articles sealed and delivered is contented to demise such Lands, and a Rent is reserved, and Covenants to repair, etc. Or if one covenants with another to permit and suffer him to have and enjoy such Lands, 1 Rol. Abr. 848. these and such like Words will not amount to a Lease, because (as hath been said) the intention of the Parties is only to make it a Covenant; but here the Words are plain and can admit of no doubt. But for an Authority in the Point the Lady * 2 Cro. 301. Mountagues Case was cited, where it was adjudged, that if a Copyholder make a Lease for a year warranted by the Custom, & sic de anno in annum during ten years, 'tis a good Lease for ten years and a Forfeiture of the Copyhold Estate, Vide Hill. 15 & 16 Car. 2. Rot. 233. the Case of Holt and Thomas in this Court. The Court inclined that it was a good Lease, Curia. and by consequence a Forfeiture of the Copyhold, and that a Licence in this Case could not be supposed to prevent the Forfeiture, because if that had been, the jury would have found it; the meaning of the Parties must make a Construction here and that seems very strong that 'tis a good Lease; but they gave no judgement. Wilkinson versus Sir Richard Lloyd. Where the Parties shall join in an Action, where not. THE Defendant covenanted that he would not agreé for the taking the Farm of the Excise of Beer and Ale for the County of York without the Consent of the Plaintiff and another, and the Plaintiff alone brought this Action of Covenant, and assigns for breach, the Defendants agreeing for the said Excise without his Consent, upon which the Plaintiff had a Verdict and 1000 l. damages given. And Sergeant Pemberton moved in Arrest of judgement, for that an Action of Covenant would not lie in this Case by the Plaintiff alone, because he ought to have joined with the other, both of them having a joint Interest, and so is Slingsby's Case 5 Co. If a Bond is made to two jointly and severally they must both join in an Action of Debt, so here 'tis a joint contract, and both must be Plaintiffs: So also if one covenants with two to pay each of them 20 l. they must both join. 'Tis true, in Slingsbies' Case 'twas held if an Assurance is made to A. of White Acre, and to B. of Black Acre, and to C. of Green Acre, and a Covenant with them and every of them, these last Words make the Covenant several. But here is nothing of a several interest, no more than that one covenants with two, that he will not join in a Lease without their Consent, so that their Interest not being divided the Covenant shall be entire and taken according to the first Words, to be a joint Covenant; and the rather, because if the Plaintiff may maintain this Action alone, the other may bring a second Action, and the Defendant will be subject to entire damages which may be given in both. Judgement. But the Court was of another Opinion, that here was no joint Interest but that each of the covenanties might maintain an Action for his particular damages, or otherwise one of them might be remediless; for suppose one of them had given his Consent that the Defendant should farm this Excise, and had secretly received some satisfaction or recompense for so doing, is it reasonable that the other should lose his remedy who never did consent, For which reason the Plaintiff had his judgement. Page versus Tulse Mil' & alios Vic' Mid '. THE Plaintiff brought an Action on the Case against the Sheriff for a false Return, Case lies not against the Sheriff for returning a Cepi Corpus & paratum habeo, though the Party doth not appear. Mod. Rep. 239. Ellis and Yarborough, post. setting forth that he sued a Capias out of this Court directed to the Sheriff of Middlesex, by virtue whereof he arrested the Party, and took Bail for his appearance, and at the day of the Return of the Writ the Sheriff returned Cepi corpus & paratum habeo, but he had not the Body there at the Return of the Writ, but suffered him to escape. The Defendant pleads the Statute of 23 H. 6. cap. 10. and saith that he took Bail, viz. two sufficient Sureties, and so let him go at large, etc. The Plaintiff demurs; and whether this Action lies against the Defendant was the Question, who refused to proceed against him by way of Amerciament, or to take an Assignment of the Bail-Bond. This Case depended in Court several Terms. It was argued by Sergeant Pemberton and Serjeant Coniers for the Plaintiff, and by Sergeant George Strode for the Defendant; and judgement was given in Easter Term in the 29th year of this King. In the Argument for the Defendant that this Action would not lie it was considered, Ex parte Def. 1. What the Common Law was before the making of this Statute. 2. What alteration thereof the Statute had made. At the Common Law Men were to appear personally to ansswer the Writ, the Form of which required it, and no Attorney could be made in any Action till Edw. 1. de gratia speciali gave leave to his Subjects to appoint them and commanded his judges to admit them, 2 Inst. 377. After the Arrest the Sheriff mighttie the Party to what Conditions he pleased, and he might keep him till he had complied with such Conditions, which often ended in taking extravagant Bonds, and sometimes in other Oppressions, for remedy whereof this Statute was made, in which the Clause that concerns this Case is, viz. If the Sheriff return upon any person Cepi Corpus or Reddidit se, that he shall be chargeable to have the Body at the day of the Return of the Writ in such form as before the making the Act; so that as to the Return of the Writ this Statute hath made no alteration, the Sheriff being bound to have the Party at a day as before. All the alteration made of the Common Law by this Statute is that the Sheriff now is bound to let the Party out of Prison upon reasonable Sureties of sufficient persons, which before he was not obliged to do; and it would be a Case of great hardship upon all the Sheriffs of England, if they (being compellable to let out the Party to Bail) should also be subject to an Action for so doing, because they have him not at the day; so that the intent of the Law must be (when it charges the Sheriff to have the Body at the Return) that he should be liable to a Penalty if the Party did not then appear, not to be recovered by Action but by Amerciament. Cro. Jac. 286. The Security directed by this Act is to be taken in the Sheriffs own Name; 'tis properly his business and for his own Indemnity, and therefore it is left wholly in his power; for which reason no Action will lie against him for taking insufficient Bail, that being to his own prejudice, in which the Plaintiff is no wise concerned; for if that had been intended by the Act some Provision would have been made as to his being satisfied in the sufficiency of the Persons. When the Security is thus taken, if the Defendant doth not appear at the Return of the Writ, the Plaintiff by Amerciaments shall compel him to bring in the Body, or to assign the Bond, either of which is a full satisfaction and as much as is required. If the Sheriff refuse to take 2 Sand. 59, 154 1 Roll. Abr. 807, 808. Cro. Eliz. 460, 852. Noy 39 Moor 428. Sid. 23. sufficient Sureties, when offered, he is liable to an Action on the Case at the Suit of the Defendant for his refusal; and it would be very unreasonable to enforce him to have the Party in Court at the Return, when he is obliged under a Penalty to let him at large. This Action is grounded upon a false Return, when in truth there is no Return made, or if any, 'tis a very imperfect Return till the Body be in Court; and this is the reason why the Court will not allow it, but amerce the Sheriff till he make the Party appear; 'tis not like a complete Return, as a Non est inventus, or the Return of Nulla Bona upon a Fi. Fa. The Case of * ● Roll Abr. 93 pl. 17. Postea. Bowls and Lassels is full in the Point, where it was adjudged that this Action would not lie, because the Sheriff had not done any thing unjustly, but what he was commanded to do by the Statute, and therefore he is to be amerced if the Defendant doth not appear. Ex parte Quer. But for the Plaintiff it was said, that unless this Action lie he is remediless, and that for two Reasons: 1. Because the Assignment of the Bail Bond is at the discretion of the Court, and not demandable by the Plaintiff in foro. 2. The Plaintiff hath no benefit by the Amerciaments, because they go to the King, and in some places are granted to Patenteés; now 'tis agreed that the Sheriff may be amerced, and certainly if an Action be brought against him he is but in the same Case, for still he is to pay: And if it be objected, that the Amerciaments may be compounded cheaper, than the Plaintiff hath not so good remedy, nor is so likely to recover his Debt, as if the Action would lie, which would be a greater penalty upon him than the Amerciaments on the Sheriff. Neither will it follow that because the Sheriff may be amerced therefore no Action will lie against him; for in many Cases he may be amerced, and yet an Action on the Case will lie against him at the Suit of the Party, 41 Ass. pl. 12. fol. 254. Latch 187. That this Action will not lie is against the very end of the Statute, and the reasonable construction thereof in the last Clause, which Enacts, That if the Sheriff return a Cepi Corpus, he shall be charged to have the Body at the Return as before the making of the Statute; now before this Law he was liable to an Action, if after such a Return made the Party did not appear, and therefore this Action being grounded upon the Common Law, is still preserved since no alteration hereof hath been made by this Statute. 'Tis true an Action of Escape is taken away, but not an Action on the Case for a false Return, and upon this difference are all the Authorities cited on the other side, as Cro. Eliz. 416, 621. Cro. Jac. 286. Moor 428. and the Case of Bowls and Lassels. And for an Authority in Point is the Case of Franklin and Andrews 24 Car. 1. where judgement was given for the Plaintiff in an Action brought for a false Return of Cepi Corpus; and the Statute pleaded as in this Case. It has been objected that judgement was there given upon the defect of Pleading, because the Traverse was naught; 'tis true there was a Traverse, absque hoc quod the Defendant retornavit aliter vel alio modo; but that was held good because it answered the falso alleged in the Plaintiffs Declaration: In this Case there is no Traverse, but 'tis confessed by the Demurrer that he did falsely and deceitfully return Cepi Corpus, and so the Plaintiff is at apparent damage and hath no remedy without this Action, and the Defendant is at no prejudice but hath his remedy over on the Bail Bond. North Chief justice, Wyndham and Atkins justices, Judgement. held that the Action would not lie; for when the Sheriff returns Cepi Corpus & paratum habeo, though he have him not in Court 'tis no false Return; for if he hath taken Bail, he hath done what by Law he ought to do; if he Arrest a Man in Yorkshire, the Law will not compel him to bring the Party hither to the Bar, because of the charge; if he make an insufficient Return, neither the Party or the Court are deluded, because the common method in such cases must be pursued, by which the Party will have remedy. This Return is true; and justice Atkyns held, that the Sheriff was not obliged by the Statute to return only a Cepi Corpus & paratum habeo, but might return, that he took Bail; for the Statute provides, that if he return a Cepi Corpus, he shall be chargeable as before, but doth not enjoin him to make such return; the Case of Bowls and Lassels is full in this point, and therefore judgement was given for the Defendant. But justice Scroggs was of another Opinion; says he, this Action being brought because the Defendant said he had the Body ready, when in truth he had not, was an apparent injury to the Plaintiff, of whom the Statute must have some consideration; for it doth not require the Sheriff to say Cepi corpus & paratum habeo, but he must make his Return good, or otherwise those words are very insignificant; and if the Statute obliges him to let the party to Bail, and nothing more is thereby intended for the benefit of the Plaintiff, why doth the Court amerce the Sheriff, and punish him for doing what the Statute directs? Therefore if the Plaintiff brings a Habeas Corpus upon the Cepi, and the Defendant doth not appear the Plaintiff, is then well entitled to this Action. Hollis versus Car, in Cancellaria. Decree of the Execution of a Fine in specie. THE Lord Chancellor Finch having called to his assistance justice Wild and justice Windham, to give their Opinions what relief the Plaintiff was to have for the recovering of 6000 l. which was his Lady's Portion. After those judges had spoken shortly to the matter, he put the Case: Viz. The Plaintiff by his Bill demands 6000 l. due to him for his Wife's Portion, with Interest for nonpayment, according to the purport of certain Articles of Agreement, dated in August 1661. and mentioned to be made between old Sir Robert Carr (the Defendants Father) his Lady and Son (the now Defendant) and Lucy Carr his Daughter, on the one part, and my Lord Hollis and Sir Francis his Son (the now Plaintiff) on the other part. The Articles mention an Agreement of a Marriage to be had between the said Sir Francis Hollis and Lucy Carr, with Covenants on the Plaintiffs side to settle a jointure, etc. and on the other side to pay 6000 l. and 'tis agreed in the Articles, that a Fine was intended to be levied of such Lands, etc. for securing the payment of 6000 l. etc. The Marriage takes effect, but old Sir Robert Carr did never Seal these Articles; the Lady Carr Seals before, and the Defendant after Marriage. Sir Francis had Issue on his Lady Lucy, one Child since dead; the Lady is likewise dead; the jointure was not made, nor the Portion paid. Afterward, viz. Anno 1664. an Act of Parliament was made for settling old Sir Robert Carr's Estate, whereby the Trusteés therein named, are appointed to sell it for payment of Debts, and raising this Portion; by which Act all Conveyances made by old Sir Robert Carr, since the year 1639. are made void, except such as were made upon valuable considerations; but all those made by him before the said year, with power of revocation (if not actually revoked) are saved; and in the year 1636. he had executed a Conveyance, by which he had made a Settlement of his Estate in tail, with a power of revocation; but it did not appear that he did ever revoke the same. The greatest part of the Lands appointed by this Act of Parliament, to be sold by the trusties, are the Lands comprised in that Settlement; and now, after the death of Sir Robert Carr, the Plaintiff exhibits his Bill against the Son, (not knowing that such a Settlement was made in the year 1636. till the Defendant had set it forth in his Answer:) and by this Bill he desires that the trusties may execute their Trust, etc. and that he may have relief. On the Defendants side it was urged, Ex parte Def. that after the Marriage there was a Bond given for an additional jointure, and it was upon that account that the Defendant was drawn in to execute these Articles: And if the very reason and foundation of his entering into them failed, than they shall not bind him in Equity; and in this Case it did fail, because the Plaintiff had disabled himself to make any other jointure, by a Pre-conveyance made and executed by him, of his whole Estate; and if this agreement will not bind him, than this Court cannot enlarge the Plaintiffs remedy, or appoint more than what by the Articles is agreed to be done; neither can the Defendants sealing encumber the Estate tail in Equity, because the Lands were not then in him, his Father being Tenant in tail, and then living; and the subsequent descent by which the Lands are cast upon him, altars not the Case; for the very right which descends is saved by the Act from being charged. But on the other side it was argued, that though the Marriage did proceed upon the Defendants sealing, yet the Assurance which was to be made, was a principal Motive thereunto; and it being agreed before Marriage, though not executed, it was very just that he should Seal afterwards; and though the additional jointure was not made, yet there was no colour that the Defendant should break his Articles, for that reason; because if the Bond be not performed, 'tis forfeited and may be sued; and nothing appeared in the case, of any Conveyance made by Sir Francis, whereby he had disabled himself to make an additional jointure, and he hath expressly denied it upon his Oath. And though it was was objected, that the Money was raised by the old Lady Carr, and by the direction of the trusties lodged in the hands of one Cook, who is become insolvent; It was answered that there was no proof of the consent of the trusties, and therefore this payment cannot alter the case. After the matter thus stated, the Lord Chancellor delivered his Opinion, That the 6000 l. is do to the Plaintiff, unpaid and unsatisfied; for though the Marriage had not taken effect, yet the Covenant binds the Defendant, because a Deed is good for a Duty, without any consideration. 2. The Plaintiff has remedy against the person of the Defendant at Law, for this 6000 l. 3. He has remedy against such of the Defendants Lands, which are not comprised in the Settlement made 1636. for as to them the trusties may be enjoined to execute the Trust. And he desired the Opinions of the two justices, if any thing more could be done in this case. justice Windham was of Opinion, that nothing more could be done, but to make a Decree to enforce the execution of the Trust. And justice Wild said, that the Plaintiff has his remedy at Law against the Defendant, and upon the Act of Parliament against the trusties; but upon these Articles no Decree could be made to bind the Lands, for that would be to give a much better security than the Parties had agreed on. But if there had been a Covenant in the Articles, that a Fine should be levied, it might have been otherwise; 'tis only that a Fine is intended to be levied. But as to that the Lord Chancellor was of Opinion, that it was a good Covenant to levy a Fine, for the words (Articles of Agreement, etc.) go quite through, and make that Clause a Covenant; but because justice Wild was of another Opinion, he desired the Attorney General to argue these three Points. 1. Whether this was a Covenant to levy a Fine or not. 2. If it was a Covenant, whether this Court can decree him to do it, for though the Party has a good remedy at Law; yet whether this Court might not give remedy upon the Land. 3. If it was a Covenant to levy a Fine, and the Court may decree the Defendant to do it, yet whether such a Decree can be made upon the prayer of this Bill, it not being particularly prayed; for the Plaintiff concluded his Bill, with praying relief in the execution of the Trust, etc. In Trinity-Term following these Points were argued by Sergeant Maynard, Sir John Churchil, and Sir John King for the Plaintiff; Mr. Attorney and Mr. Solicitor, and Mr. Keck for the Defendant, all in one day, and in the same order as named. The Council for the Defendant urged, Ex parte Def. that this was no Covenant in Law to enforce the Defendant to levy a Fine: 'Tis agreed that there is no need of the word (Covenant) to make a Covenant; but any thing under the Hand and Seal of the Parties, which imports an Agreement, will amount to a Covenant; so in 1 Roll. Abr. 518. these words in a Lease for years, viz. That the Lessee shall repair, make a Covenant; so in the Case of Indentures of Apprenticeship there are not the formal words of a Covenant, but only an Agreement that the Master shall do this, and the Apprentice shall do that, and these are Covenants; but in all these Cases there is something of an undertaking; as in 1 Roll 519. Walker versus Walker, If a Deed be made to another in these words, viz. I have a Writing in my custody, in which W. standeth bound to B. in 100 l. and I will be ready to produce it; This is a Covenant, for there is a present engaging to do it, but there are no such words here, 'tis only a recital, That whereas a Fine is intended to be levied to such Uses, etc. 'Tis only Introductive to another Clause, without positive or affirmative words, and therefore can never be intended to make a Covenant, but are recited to another purpose, viz. To declare the Use of a Fine, in case such should be levied. If Articles of Agreement are executed in consideration of an intended Marriage, and one side Covenants to do one thing, and the other side another thing; was it ever imagined that upon these words, (Whereas a Marriage is intended, etc.) that an Action of Covenant might be brought to enforce the Marriage: And yet there is as much reason for the one as the other; therefore since the Parties have neither made nor intended it for a Covenant, 'tis not necessary that it should be so construed. If this is a Covenant, the Parties at Common Law could only bring an Action of Covenant, and recover damages for not levying of the Fine, and that the Plaintiff may do now upon the express Covenant for nonpayment of the Money; but then the breach must be assigned according to the words, viz. That the Defendant did not levy a Fine as intended; who may plead that a Fine was never intended to be levied, and by what jury shall this be tried? It may be objected, that every Article stands upon its own bottom, and the Title of them (being Articles of Agreement,) extends to every Paragraph. But as to that, each of these Articles is to be considered by itself; and every Paragraph gins, viz it is Covenanted, etc. which shows it was never intended to make it a Covenant, by the Title of the Articles, and the rather, because 'tis unreasonable to make such a construction; for it is not to be supposed that a Man will covenant that a Fine shall be levied, as in this Case, by A. and B. and himself, when 'tis not in his power to compel another. 2. Admitting it to be a Covenant, yet it would be very hard to decree the execution of a Fine in Specie; for the Father of the Defendant was alive when he executed the Deed, and the Father being Tenant in tail, who never sealed, the Son could have no present Right, who did Seal; and if matters had stood now as then, how could a Court of Equity Decree a Fine, by which a Right might be extinguished, but could never be transferred, and by which no use could be declared? For though such a Fine be good by Estoppel, before the Tail descends to the Issue; yet no use can be declared thereupon, nor upon any Fine by Estoppel; and there is no reason why length of time should put the Plaintiff into a better condition than he was when the Articles were executed. 3. And lastly, since here is a particular relief prayed in no wise concerning the levying of this Fine, but only a Relief in the Execution of the Trust, this Court cannot Decree the Defendant to levy one, it being against the constant course and rules thereof. But on the other side it was said by the Plaintiffs Council, that the words do declare the intent of the Parties, Ex parte Quer. that a Fine shall be levied; and 'tis the Intent which makes the Agreement; and where there is an Agreement an Action of Covenant will lie. If a Man Covenant to do such a thing in consideration of a Marriage, and then there is this Clause, viz. Whereas it is intended that he shall Marry before Michaelmas, that then, etc. certainly upon the whole Deed here is a good Covenant to marry before Michaelmas. In this Case 'tis Covenanted, that 6000 l. shall be paid, and that it shall be secured as herein is after mentioned; then 'tis declared, that a Fine is intended to be levied for that purpose, this is a good Covenant to make a Security by a Fine. But if the particular manner how the the Security was to be made had been omitted, yet upon the words (Covenant to secure it,) the Court hath a good ground to make a Decree to levy a Fine, that being the only way to secure it. 2. As to the Objection, that the Defendant had but a possibility of having the Estate when he entered into this Covenant, (admitting it to be so) yet why should that be a reason to hinder him from making good the Security when he hath it; if Father and Son Covenant to make an Assurance, the Father who had the Estate in possession dies, the Decree must then operate upon that Estate in the hands of the Son. 3. Here is a general prayer for a proper relief, in which the Plaintiffs Case is included, and therefore prayed judgement for him. The Lord Chancellor, Curia. presently after the Arguments on each side, delivered his Opinion, That upon the whole frame of the Articles there was a Covenant to levy a Fine; for wherever there is an Agreement under Hand and Seal, Covenant lies; that in this Case there was a plain Covenant, if the first Article of giving farther security, be coupled to that Paragraph of intending to levy a Fine, for that is the farther security intended, so that the meaning of the Parties runs thus; I do intent to levy a Fine, which is for the Securing of 6000 l. and this appears to be their Agreement. Now there are many Cases where words will make a Covenant, because of the Agreement, when the general words of Covenant, Grant, etc. are wanting; as * Hays versus Bickerstaff. Antea & Postea. Cook versus Herl. Yielding and Paying will make a Covenant, for the reasons aforesaid. And therefore the Party having provided himself of real as well as personal Security, by these Articles, he said he would not deprive him of it; especially when it might be more trouble to bring an Action of Covenant for the not levying of the Fine, for upon that many Questions might arise, as who should do the first act, etc. for which reasons he decreed the execution of the Fine in Specie. DE Term. Sanctae Trin. Anno 28 Car. II. in Communi Banco. Ingram versus Tothill. REplevin: The Case was; Justification ill. 1 Vent. 314. Mod. Rep. 216 Postea. A Man made a Lease for 99 years, if A. B. and C. should so long live, rendering an Herriot after the death of each of them successively, as they are all three named in the Deed; the last named died first; and if an Herriot should be paid, was the Question. Stroud Serjeant urged, that it should not, because the reservation is the Lessors Creature, and therefore to be taken strongly against him: As if Rent be reserved to him and his * Per North, a Devisee is not Assignee to take. Assigns, or to him and his Executors, the Heir shall not have it: So is the Authority in 33 Eliz. Owen 9 Reddend to the Lessor, his Executors and Administrators durante termino 21 Annorum etc. the Heir shall not have the Rent, because 'tis not reserved to him. 5 Co. 35. Latch 274. In this Case the Herriot is reserved if the three die successively, and the Lessor is contented to trust to that Contingency. Reddend' annuatim duran' termino predict ' to the Lessor and his Assigns, the Heir shall have it, though not named, Latch 99 2 Sand. 367. As to this Point the Court gave no Opinion, but judgement was given for the Plaintiff upon the pleading, because the Defendant had justified the taking of a Distress, by virtue of a Lease for a Term of years, if three live so long, and did not aver that any of the Lives were in being. 2. He sets forth that one of them was seized, and being so seized died, but doth not say obiit inde seisit, and these were held incurable faults. Anonymus. Exceptions to the Count in a Formedon in Discender. Mod. Rep. 219. 8 Co. 88 IN a Formedon in Discender: The Tenants by Turner Serjeant, of Council with them, took three Exceptions to the Count 1. The Demandant (being Brother to the Tenant in Tail who died without Issue) sets forth that the Land belonged to him post mortem of the Tenant in Tail, without saying that he died without Issue: In the ancient Register in a Formedon 'tis pleaded that the Tenant in Tail died without Issue, and so it is in Co. Entr. 254. b. Rast. Entr. 341. b. quae post mortem of the Donee reverti debeant, eo quod the Donee obiit sine haerede; all the Precedents are so, 9 E. 4. 36. 2. The Demandant makes as if there were two Heirs of one Man, which cannot be pleaded, for he counts that his eldest Brother was Heir to his Father, and that after his death he is now Heir, which cannot be, for none is Heir to the Father but the eldest Son, and therefore when they are both dead without Issue the next Brother is Heir to him who was last seized, and not to the Father, and then he ought to be named, which is not done in this Case, Hern's Pleader fol. 'Tis true, in a Formedon in Reverter (the Tail being spent) the Donor ought not to name in his Count every Issue inheritable to the Tail, because he may not know the Pedigree; and therefore 'tis well enough for him to say quae post mortem of the Donee ad ipsum reverti debeant, eo quod he died without Issue; but in a Formedon in Discender 'tis presumed that the Demandant known the descent, and therefore he ought to name every one to whom any Right did descend, Jenkins and Dawson's Case. Hetley 78. Dyer 216. 3. The Demandant hath not set forth that he is Heir of J. begotten on the Body of his Wife, 1 Inst. 326. which he should have done because this being in the Discender he must make himself Issue to the Tail. Ex parte Def. These Exceptions were answered by Sergeant Seys; and as to first he said, that in a Formedon in Descender he neéd not to set forth that the Tenant in Tail died without Issue, which he agreed must be done in a Formedon in Remainder or Reverter, 39 E. 3. 27. Old Entr. tit. Formedon pl. 3. 7 H. 7. 7. b. a Case express in the Point. To the second Exception he said, that it was no Repugnancy in Pleading to say that two were Heirs to one Man, for they may be so at several times, and so it appears to be in this Case, since 'tis said post mortem of his Brother who was Heir. To the third Exception, 'Tis well set forth that the Demandant was the Issue of Ingram begotten of the Body of Jane; for he saith his Brother was so, and after his death he was Brother and Heir of him, which is impossible to be unless he was begotten as aforesaid; and of this Opinion were all the Court, viz. Judgement. That 'tis well enough set forth, that the Tenant in Tail died without Issue; for if he had any Children alive it could not descend to the Demandant as Brother and Heir, which he hath alleged; and they all agreed the difference between a Formedon in the Discender, Remainder and Reverter. And as to the second Exception there is no contradiction to say two are Heirs to one tempore diviso. And the last Exception had no force in it. But than it was observed that the Demandant in his Writ had set out his Title after the death of the Tenant in Tail, and in the Count 'tis only Quae post mortem, etc. But to that it was aswered it relates to the Writ, and what is therein shall supply the Et caetera in the Count Woodward versus Aston in Banco Regis. INdebitatus Assumpsit for 10 l. in Money received to the Plaintiffs use, and upon a Trial at Barr this Term: Joint Office for life and to the Survivor, one consents that another shall be admitted, 'tis a Surrender. 1 Ventris 296. The Case upon Evidence was, viz. Sir Robert Henly Prothonotary of the Court of King's Bench makes a Grant of the Office of Clark of the Papers (which of right did belong to him) unto Mr. Vidian and Mr. Woodward for their lives and the life of the longest liver of them. Afterwards Mr. Vidian makes a parol Surrender of this Grant, and then Sir Robert Henly makes a new Grant to Mr. Woodward and Mr. Aston the Defendant for their Lives, and for the life of the Survivor: Mr. Vidian dies, and whether the Plaintiff Woodward should have all the profits of the Office by Survivorship was the Question. It was agreed that this was one entire Office; and as one of them cannot make a Deputy so he cannot appoint a Successor. But the doubt was whether the Plaintiff had not consented that the Defendant should be taken into the Office, and had agreed to the new Grant which was made afterwards; for it was admitted that if he consented before Mr. Aston came in, it must then be found for the Defendant; for by his consent he had barred himself of his Right and Benefit of Survivorship, and that by his consenting to the new Grant that in Law was a Surrender of the first Grant, and then the Defendant is jointenant with the Plaintiff, and if so, his Action is not maintainable. And upon these two Points only it was left to the jury, who found for the Defendant. The Evidence to the first Point was, that when Mr. Vidian proposed to the Court that the Defendant might succeed him, after some opposition and unwillingness in the Plaintiff to agreé to it; yet at length he declared that he did submit to it, and accordingly the Defendant was admitted; but there was no formal Entry of his Admittance as an Officer, but only the Courts declaring their Consent that he should take his place. Ex parte Quer. On the other side it was insisted on for the Plaintiff and proved that his Submission to the Court was with a salvo jure, and what he did was reluctante animo, thinking it was a hardship upon him, as he often since declared; so that it was quasi a compulsory Consent made in obedience to the Court with whom it was not good manners in him to contend. Several Points were stirred at the Trial, as, 1. Whether a Surrender of the Grant of an Office by Parol was good. 2. Whether if a Grant be made of an Office or of any other thing which lies in Grant, and the Deed is lost or canceled, the Office or the thing granted falls to the ground, for the Deed is the foundation; and a Case was cited in the Lord Dyer; If there be two jointenants and one cancels the Deed it hath destroyed the Right of the other, Quaere of these things: But it was agreed, that if two Men who have one Office for their Lives and the survivor of them, if one surrenders to the other, and then a new Grant is made to this other and a Stranger, he hath debarred himself of the Survivorship, and he and the Stranger are jointly seized. Crossman versus Sir John Churchil. IN a Quare Impedit the Plaintiffs Title was set forth in his Declaration, which was also found in a Special Verdict, Where an Agreement for a Presentation by turns is good. that Sir George Rodney was seized of the Advowson in Fee, and died seized, leaving two Sisters who were his Coheirs; that Sir John Rodney being also one of the same Family and pretending a Right to the Estate, for preventing Suits that might happen, they all enter into an Agreement by Indentures mutually executed, by which it was agreed, that Sir John Rodney shall hold some Lands in severalty, and the Coheirs shall hold other Lands in the like manner; and as for this Advowson a temporary provision was made thereof, that each of them should Present by turns, and this was to continue till partition could be made; then comes an Act of Parliament and confirms the Indenture, and Enacts, That every Agreement therein contained shall stand, and that all the rest of the Lands not particularly named and otherwise disposed by the said Indenture should be held by these three in common; one of the three, who by Agreement was next to Present, grants the next Avoidance (the Church being then full) to the Plaintiff, and the Question was, whether these threé persons were not Tenants in Common of the Advowson, and if so, than the Grant of the next Avoidance cannot be good by one alone, because he hath not the whole Advowson, but only a Right to the third part. It was said, that if Tenants in Common had made such an Agreément it would not have been any division of their interest; for there must be a partition to sever the Inheritance. The Court were all of Opinion, Curia. that judgement should be given for the Plaintiff; for there was an Agreement that there shall be a Presentation by turns, and therefore for one turn each hath a Right to the whole Advowson by reason of the Act of Parliament by which that Agreement is confirmed, and thereby an Interest is settled in each of them till Partition made; but this Agreement would have vested no Interest in either of them without an Act of Parliament to corroborate it; therefore there had been no remedy upon it but by an Action of Covenant. This Case was argued four times and not one Authority cited. The Earl of Shaftsbury versus Lord Digby. In Banco Regis. For Words upon the Statute of 2 R. 2. c. 5. Jones 49. SCandalum Magnatum. The Plaintiff declares upon the Statute of 2 R. 2. cap. 5. for these Words, viz. You are not for the King, but for Sedition and for a Commonwealth, and by God we will have your Head the next Sessions of Parliament. After Verdict for the Plaintiff and 1000 l. damages given, it was moved in Arrest of judgement, and several Exceptions taken. 1. As to the Recital of the Statute, the Words of which are, That no Man shall devise any Lies, etc. and the Plaintiff for the Word devise had used the Latin Word contrafacio in his Declaration, which was very improper, that being to counterfeit and not to devise; for it should have been machino or fingo, those are more expressive Words of Devise. 2. 'Tis alleged that the Defendant dixit mendacia of the Plaintiff, viz. haec Anglicana verba sequen, and doth not allege that he spoke the Words. 3. The most material Objection was a mistake in the Recital of the Statute, the Words of which are, That none shall speak any scandalous Words of any Dukes, Earls, etc. the Justices of either Bench nor, of any other great Officer of the Kingdom; but the Plaintiff in his Declaration recites it thus, viz. None shall speak any scandalous Words of any Dukes, Earls, etc. Justices of either Bench, great Officers of the Kingdom, and leaves out the Words (neque all) so that it must be construed thus, None to speak of any Dukes, Earls, etc. being great Officers of the Kingdom; and then 'tis not enough that the Plaintiff is Comes, but he also ought to be a great Officer of the Kingdom which is not set out in this Case. But upon great Debate and Deliberation these Exceptions were overruled; and the whole Court gave judgement for the Plaintiff. As to the first Exception they said, contrafacio is a legal Word and apt enough in this sense, and so are all the Precedents, and thus it was pleaded in the Lord Cromwel's Case. As to the second Exception it was said, the Mendacia which were told were the English Words which were spoken; and the (viz. haec Anglicana verba sequen being in the Accusative Case) are governed by the same Verb which governs the Words precedent (viz. horribilia mendacia) Besides for the supporting of an Action the (viz.) may be transposed, and then it will be well enough, viz. the Defendant spoke haec Anglicana verba, viz. Lies of the Plaintiff. As to the third Exception it was answered, that the Plaintiff neéd not recite the Statute it being a * Sid. 348. general Law; and admitting there was no necessity, yet if he will undertake to recite it and mistake in a material Point, 'tis incurable; but if he recites so much as will serve to maintain his own Action truly and mistakes the rest, this will not vitiate his Declaration; and so he hath done here by reciting so much of the Statute which Enacts, That no Man shall speak any scandalous Words of an Earl, which is enough (he being an Earl) to entitle him to an Action, and he concludes prout per eundem Actum plenius liquet; and the Court grounded themselves principally upon a judgement given in this Court which was thus, viz. There was a Robbery committed, and the Party brought an Action upon the Statute of Hue and Cry, in which he recited incendia domorum, 13 E. 1. cap. 1. the said Statute beginning Forasmuch as from day to day Robberies, Murders, burning of Houses, etc. and the Precedents are all so: But the Parliament Roll is Incendia generally without domorum; and it was strongly urged, that it was a misrecital, which was fatal: But the Court were all of Opinion, that the Plaintiffs Case being only concerning a Robbery, for which the Statute was well recited, and not about burning which was mistaken, it was for that reason good enough; and judgement was given accordingly. When this Cause was tried at the Bar which was in Easter-Term last, the Lord Mohun offered to give his Testimony for the Plaintiff, but refused to be sworn, offering to speak upon his Honour; but justice Wyld told him in Causes between Party and Party he must be upon his Oath. The Lord Mohun asked him whether he would answer it: The judge replied, that he delivered it as his Opinion, and because he knew not whether it might cause him to be questioned in another place, he desired the rest of the judges to deliver their Opinions, which they all did, and said he ought to be sworn; and so he was, but with a salvo jure; for he said there was an Order in the House of Peers, That 'tis against the Privilege of the House for any Lord to be sworn. Anonymus. DEBT upon the Statute for not coming to Church, and concludes Per quod Actio accrevit eidem Domino Regi & quer' ad exigend' & habend'. The Exception after judgement was taken, that it ought to have been only Actio accrevit eidem the Plaintiff, qui tam, etc. and not exigend' & habend ' for the King and himself; Sed non allocatur: For upon search of Precedents the Court were all of Opinion that it was good either way. Anonymus. Factor, where he cannot sell but for ready Mony. IN Account: judgement was given quod computet; and the Defendant pleads before the Auditors that the Goods whereof he was to give a reasonable account were bona peritura; and though he was careful in the keeping of them, yet they were much the worse; that they remained in his hands for want of Buyers, and were in danger of being worse, and therefore he sold them upon Credit to a Man beyond Sea. The Plaintiff demurred; and after Argument by Barrel Serjeant for the Plaintiff, and Baldwin Sergeant for the Defendant, the whole Court were of Opinion that the Plea was not good. Curia. For if a Merchant deliver Goods to his Factor ad merchandizand ', he cannot sell them upon Credit, but for ready Money, unless he hath a particular Commission from his Master so to do; for if he can find no Buyers he is not answerable; and if they are bona peritura and cannot be sold for Money upon the delivery, the Merchant must give him authority to sell upon Trust. If they are burned or he is rob without his own default, he is not liable; and in this Case it was not pleaded that he could not sell the Goods for ready Money; and the Sale itself was made beyond Sea, where the Buyer is not to be found; like the Case of * 1 Bulst. 103. Yelv. 202. Sadock and Burton, where in Account against a Factor he pleads that he sold the jewel to the King of Barbary for the Plaintiffs use; and upon a Demurrer the Plea was held naught; for when a Factor hath a bare Authorty to sell, in such Case he hath no power to give a day of payment, but must receive the Money immediately upon the Sale. Therefore in the Case at Barr, if the Master is not bound by the Contract of the Servant without his Consent, or at least the Goods coming to his use; neither shall the Servant have Authority to sell without ready Money, unless he hath a particular Order for that purpose. There was another thing moved in this Case for the Plaintiff that the Plea ought to be put in upon Oath; for having pleaded that he could not sell without loss, he ought to swear it, Fitzh. Account 47. But no Opinion was delivered herein, only the Chief justice said, that the Plaintiff ought to have required the Plea upon Oath, for otherwise it was not necessary: But for the substance of the Plea it was held ill, and judgement was given for the Plaintiff. Harris' Case. Sergeant Hopkins moved for a Prohibition. The Case was: Husband dies, his Wife Executrix, she dies before Probate, Administration must be to the next of kin of the Husband. 22 & 23 Car. 2. cap. 10. A Man makes a Will and appoints his Wife to be Executrix, and devises a Shilling to his Daughter for a Legacy, and dies; the Executrix, before Probate of the Will, dies also intestate; and whether the Goods shall be distributed by the Act for settling Intestates Estates amongst the next of kin to the Executrix or to the next of kin to the Testator her Husband, was the Question: Since she dying before Probate her Husband in judgement of Law died also intestate. This Case seems to be out of the Statute, the Husband having made a Will, and the Act intermeddles only where no Will is made. The Court delivered no judgement in it, but seemed to incline that the Statute did extend to this very Case, and that Administration must be committed to the next of kin of the Husband; but if there should be no distribution, it must then be according to the Will of the Testator. Reder versus Bradley. IT was moved to reverse a judgement given in an Honour Court upon a Writ of false judgement brought here: Judgement reversed in an inferior Court where the damage was laid to 30 l. The Plaintiff declared in the Action below that there was a Communication between him and the Defendant concerning the Service of his Son; and it was agreed between them that in consideration the Plaintiff would permit his Son to serve him, the Defendant promised to pay the Plaintiff 30 s. The Plaintiff avers that he did permit his Son to serve him, and that the Defendant hath not paid him the 30 s. There was a Verdict for the Plaintiff, and the Exceptions now taken were: 1. 'Tis not said that the jurors were electi ad triand', etc. 2. He lays his damage to 30 l. of which a Court Baron cannot hold Plea; for the difference taken by my Lord Coke is where Damages are laid under 40 s. Costs may make it amount to more; but where 'tis laid above, in such Case all is coram non Judice; for which reason judgement was reversed; but in this Court the judge doth not pronounce the Reversal as 'tis done in the King's Bench. Lane versus Robinson. Inferior Court. TRespass for taking of his cattle; the Defendant justifies by virtue of an Execution in an Action of Trespass brought in a Hundred Court; and the Plaintiff demurred. Sergeant Pemberton took two Exceptions to the Plea. 2 Cro. 443, 526. Hob. 180. Sid. 348. 1. Because the inferior Court not being of Record cannot hold Plea of a Trespass quare vi & armis & contra pacem, but it was not allowed; for Trespasses are frequently brought there, and the Plaintiff may declare either vi & armis or contra pacem. Postea. 2. The Defendant reciting the Proceed below saith taliter processum fuit; whereas he ought particularly to set forth all that was done, because not being in a Court of Record the Proceed may be denied and tried by Iury. But the Court inclined that it was pleaded well enough, and that it was the safest way to prevent mistakes; but if the Plaintiff had replied de injuria sua propria absque tali causa, that had traversed all the Proceed. Quaere whether such a Replication had been good, because the Plaintiff must answer particularly that Authority which the Defendant pretended to have from the Court; but no judgement was given. Sherrard versus Smith. TRespass Quare clausum fregit, and for taking away his Goods; the Defendant justifies the taking by the command of the Lord of the Manor, of which the Plaintiff held by Fealty and Rent, and for nonpayment thereof, the Goods were taken nomine Districtionis. The Plaintiff replies, that the locus in quo est extra, Horse de son Fee, when to be pleaded. absque hoc quod est infra feodum: The Defendant demurs specially, because the Plaintiff pleading horse de son fee, should have taken the Tenancy upon him, 9 Co. Bucknal's Case, 22 H. 6. 2, 3. Keilway 73. 14 Ass. pl. 13. 1 Inst. 1. b. where this is given as a Rule by my Lord Cook. Sergeant Pemberton on the other side agreed, Ex parte Quer. 13 Assize 28. 28 Assize 41. that in all cases of Assize, horse de son fee is no Plea, without taking the Tenancy upon him, 2 Ass. placito 1. And in 5 E. 4. 2. 'tis said, that in Replevin the Party cannot plead this Plea, because he may disclaim; but Brook placito 15. tit. horse de son fee saith, this is not Law, and so is 2 H. 6. 1. and many Cases afterwards were against that Book of Ed. 4. and that a Man might plead horse de son fee, as if there be a Lord and Tenant holding by Fealty and Rent; and he makes a Lease for years, and the Lord distrains the cattle of the Lessee, though the Tenant hath paid the Rent and done Fealty, there if the Lessee allege that his Lessor was seized of the Tenancy in his demesn, as of fee, and held it of the Lord by Services, etc. of which Services the Lord was seized by the hands of his Lessor, as by his true Tenant, who hath leased the Lands to the Plaintiff; and the Lord to charge him hath unjustly avowed upon him who hath nothing in the Tenancy, 'tis well enough, 9 Co. Case of Avowries; and the reason given in 5 Edw. 4. about disclaimer, will not hold now, for that course is quite altered, and is taken away by the Statute of the 21 H. 8. cap. 19 which Enacts, That Avowries shall be made by the Lord upon the Land, without naming his Tenant. But in case of Trespass there was never any such thing objected as here; for what Tenancy can the Plaintiff take upon him in this case? He cannot say tenen' liberi tenementi, for this is a bare Action of Trespass, in which, though the pleading is not so formal, yet it will do no hourt; for if it had been only extra feodum, without the Traverse, it had been good enough, and of that Opinion was the Court in Hillary-Term following, when judgement was given for the Plaintiff (absent Scroggs) And the Chief justice said, That the Rule laid down by my Lord Coke, in 1 Inst. 1. b. that there is no pleading horse de son fee, without taking the tenancy upon him, is to be intended in cases of Assize; and so are all the Cases he there citys for proof of that Opinion, and therefore so he is to be understood; but this is an Action of Trespass brought upon the Possession, and not upon the Title. In the Case of Avowry, a Stranger may plead generally horse de son fee, and so may Tenant for years; and this being in the Case of a Trespass, is much stronger, and if the Plaintiff destroys the Defendants justification; 'tis well enough. Sir William Hickman versus thorn & alios. Prescription against another Prescription, not good, without a Traverse. IN a Replevin: The Defendant justifies the taking, for that the locus in quo was his Freehold, and that he took the cattle there damage fesant. The Plaintiff in bar to the Avowry replies, that the locus in quo, etc. is parcel of such a Common Field, and prescribes to have right of Common there, as appendent to two Acres which he hath in another place. The Defendant rejoins, that there is a Custom, that every Freeholder who hath Lands lying together in the said Common Field may enclose against him who hath right of Common there, and that he had Lands there, and did enclose: The Plaintiff demurs, and Sergeant Newdigate took Exceptions to the rejoinder. Ex parte Quer. 1. For that he did not aver, that the Lands which he enclosed did lie together, and therefore had not brought his case within the Custom alleged: Sed non allocatur, because he could not enclose if the Lands had not laid together. 2. He gives no answer to the Plaintiffs right of Common, but by argument, which he should have confessed, with a been & verum est, and then should have avoided it, by alleging the Custom of Enclosure; like the Case of * 2 Leon. 209. Russel and Broker, where in Trespass for cutting Oaks, the Defendant pleads, that he was seized of a Message in Fee, and prescribes to have rationabile estoverium ad libitum capiend' in boscis; the Plaintiff replies, that the locus in quo was within the Forest, and that the Defendant and all those, etc. habere consueverunt rationabile estoverium, etc. per liberationem Forestarii; and upon a Demurrer the Replication was held naught, because the Plaintiff ought to have pleaded the Law of the Forest, viz. Lex Forestae talis est; or to have traversed the Defendants Prescription, and not to have set forth another Prescription in his Replication without a Traverse. 3. The Defendant should have pleaded the Custom, and then have traversed the Prescription of the Right of Common; for he cannot plead a Custom against a Custom, 9 Co. 58. Aldred's Case, where one prescribes to have a Light, the other cannot prescribe to stop it up. Sergeant Pemberton contra. Ex parte Def. He said that which he took to be the only Question in the Case was admitted, viz. That such a Custom as this to enclose was good; and so it has been adjudged in Sir Miles Corbet's Case, 7 Co. But as to the Objections which have been made, the Defendant admits the Prescription for Right of Common, but saith, he may enclose against the Commoners, by reason of a Custom, which is a Bar to his very Right of Common, and therefore need not confess it with a been & verum est, neither could he traverse the Prescription, because he hath admitted it. 'Tis true, where one prescribes to have Lights in his House, and another prescribes to stop them up; this is not good, because one Prescription is directly contrary to the other; and for that reason one must be traversed; but here the Defendant hath confessed, that the Plaintiff hath a Right of Common, but 'tis not an absolute, but a qualified Right, against which the Defendant may Enclose; and here being two Prescriptions pleaded, and one of them not being confessed, it must from thence necessarily follow, that the other is the Issue to be tried, which in this Case is, whether the Defendant can enclose or not. The Chief justice, and the whole Court were of Opinion, Curia. that where there are several Freeholders', who have Right of Common in a Common Field, that such a Custom as this of enclosing is good, because the remedy is reciprocal; for as one may enclose, so may another. But justice Atkyns doubted much of the Case at Bar, because the Defendant had pleaded this Custom to Enclose in bar to a Freeholder, who had no Land in the Common Field, where he claimed Right of Common, but prescribed to have such Right there, as appendent to two Acres of Land he had alibi, for which reason he prayed to amend upon payment of Costs. Attorney General versus Sir Edward Turner, in Scaccario. Exposition of the Kings Grant. INformation. The Case was, Viz. The King by Letters Patents granted several Lands in Lincolnshire, by express words; and then this Clause is added, upon which the Question did arise, Nec non totum illud fundum & solum & terras suas contigue adjacen ' to the Premises, quae sunt aqua cooperta vel quae in posterum de aqua possunt recuperari; and afterwards a great quantity of Land was gained from the Sea; and whether the King or the Patentee was entitled to those Lands, was the Question. Devise of a possibility good by a common person. 2 Cro. 509. pl. 21. 1 Bulst. 194. Sawyer for the King argued, that he had a good Title, because the Grant was void, he having only a bare possibility in the thing granted at the time. But Levins on the other side insisted, that the Grant of those Lands was good, because the King may Grant what he hath not in possession, but only a possibility to have it. But admitting that he could not make such a Grant; yet in this Case there is such a certainty as the thing itself is capable to have, and in which the King hath an Interest; and it is hard to say that he hath an Interest in a thing, and yet cannot by any means dispose of it. If it should be objected, that nothing is to pass but what is contigue adjacen ' to the Premises granted, and therefore an Inch or some such small matter must pass and no more; certainly that was not the intention of the King, whose Grants are to be construed favourably, and very bountifully for his Honour, and not to be taken by Inches. Postea, Company of Ironmongers and Naylor. If there are two Marshes adjoining, which are the Kings, and he grants one of them by a particular name and description, and then he grants the other contigue adjacen' ex parte australi, certainly the whole Marsh will pass; and 'tis very usual in pleading to say a Man is seized of a House or Close, and of another House, etc. contigue adjacen ', that is to be intended of the whole House. In this Case the King intended to pass something when he granted totum fundum, etc. but if such construction should be made as insisted on, than those words would be of no signification. 'Tis true, the word illud is a Relative, and restrains the general words, and implies that which may be shown, as it were with a Finger; and therefore in Doddington's Case, 2 Co. 32. a Grant of omnia illa Mesuagia, situate in Wells, and the Houses were not in Wells, but elsewhere; the Grant in that Case, was held void, because it was restrained to a certain Village, and the Pronoun illa hath reference to the Town; but in this Case there could be no such certainty, because the Land at the time of the Grant made, was under Water. But if the Patent is not good by the very words of the Grant, the non obstante makes it good, which in this Case is so particular, that it seems to be designed on purpose to answer those Objections of any mistake or incertainty, in the value, quantity, or quality of the thing granted, which also supplies the defects for want of right instruction given the King, in all cases where he may lawfully make a Grant at the Common Law, 4 Co. 34. Moor pl. 571. Bozuns Case. And there is another very general Clause in the Patent, viz. Damus praemissa adeo plene, as they are or could be in the King's hands, by his Prerogative or otherwise. * Ante Adeo plene are operative words, Whistlers Case 10 Co. And there is also this Clause omnes terras nostras infra fluxum & refluxum maris. 'Tis true, Sid. 149. these words praemissis praed' spectan ' do follow; from whence it may be objected, that they neither did or could belong to the Premises; and admitting it to be so, yet the Law will reject those words, rather than avoid the Grant in that part. In the Case of the Abbot of * 9 Co. 27. b. Strata Marcelia, the King granted a Manor Et bona & catalla felonum dicto Manerio spectan '; now though such things could not be appendent to a Manor, yet it was there adjudged that they did pass. Such things as these the King hath by his Prerogative, and some things the Subject may have by Custom or Prescription; as Wrecks, etc. and in this very Case 'tis said, that there is a Custom in Lincolnshire, that the Lords of Manors shall have derelict Lands, and 'tis a reasonable Custom; for if the Sea wash away the Lands of the Subject, he can have no recompense, unless he should be entitled to what he gains from the Sea; and for this there are some Authorities, as Sir Henry Constable's Case, 2 Roll. 168. 5 Co. Land between High-Water and Low-Water Mark may belong to a Manor: But no judgement was given. Morris versus Philpot in B. R. Release by an Executor before Probate. THE Plaintiff as Executor to T. brings an Action of Debt against the Defendant, as Administrator to S. for a Debt due from the said intestate, to the Plaintiffs Testator. The Defendant pleads, that the Plaintiff released to him all Brewing Vessels, etc. and all other the Estate of S. lately deceased (this Release was before probate of the Will,) to which Plea the Plaintiff demurred; and whether this Release was a good Bar to the Plaintiffs Action was the Question. Ex parte Quer. It was said for the Plaintiff, that it was not; for if a Conusee release to the Cognisor all his right and title to the Lands of the Cognisor, and afterwards sues out Execution, yet he may extend the very Lands so released; so if the Debtee release to the Debtor all his right and title which he hath to his Lands, and afterwards gets a judgement against him, he may extend a Moiety of the same Lands by Elegit; the reason is, because at the time of these Releases given, they had no title to the Land, but only an inception of a right, which might happen to take place in futuro; so here a Release by the Executor of the Debtee to the Administrator of the Debtor, before Probate of the Will, is not good; because by being made Executor, he had only a possibility to be entitled to the Testators Estate, and no Interest till Probate, for he might refuse to prove the Will, or renounce the Executorship. It is true, a Release of all * Godol. 145. pl. 4. Actions had been good by the Executor before Probate, because a right of Action is in him, and a Debt which consists merely in Action is thereby discharged; but in such case a Release of all right and title would not be good, for the reasons aforesaid. Ex parte Def. But for the Defendant it was insisted, that this Release was a good Plea in Bar, for if a Release be made by an Executor of all his right and title to the Testators Estate, and then the Executor sues the Party Released (as the Administrator is sued in this Case) for a Debt due to the Testator, the Release is good; because if he had recovered, in this Case the judgement must be de bonis Testatoris, which is the subject matter, and that being released, no Action can lie against the Administrator. Adjornatur. DE Term. Sancti Mich. Anno 28 Car. II. in Banco Regis. Piggot Lessee of Sir Thomas Lee versus the Earl of Salisbury. Intrat' Pasch. 26 Car. 2. Rot. 609. IN Ejectment for fourteéns Houses and some Gardens in the Parish of St. Martin in the Fields; Warranty where by displacing of a Right by a Fine sur concessit, it shall bar the Heir. Jones 68 the jury find as to all but one Moiety for the Defendant, as for the other Moiety they find that these were formerly the Houses of one Nightingale, who was seized thereof in Fee, and made a Lease of them which commenced 1 Apr. 7 Jac. yet in being. That the Reversion descended to Bridget his Daughter and Heir, who married William Mitton, by whom she had a Daughter named Elizabeth. That upon the Marriage of the said Elizabeth with Francis the Son of Sir Oliver Lee, by Fine and other Settlements these Houses were settled to the use of the said Bridget for Life, then to the use of Francis Lee and the said Elizabeth, and the Heirs on the Body of the said Elizabeth to be begotten by Francis. And for want of such Issue to William Mitton for Life, and afterwards to the right Heirs of Bridget Mitton for ever. William Mitton and Bridget his Wife before the expiration of the Term levy a Fine sur concesserunt to two Cognisees, wherein the said Husband and Wife conced ' tenementa praed' & totum & quicquid habent in tenementis praed' come pertin' for the Life of the said Husband and Wife, and the Survivor of them with Proclamations. They find that the Lessee for years attorned, and that the Fine thus levied was in Trust for the Earl of Salisbury, and that before the first day of February before the Action brought he entered by the direction of the two Cognizees, and that he was seized prout Lex postulat. That 1 Febr. 7 Jac. Sir Oliver Lee, Francis Lee his Son and Heir, and Elizabeth his Wife, William Mitton and Bridget his Wife, by Bargain and Sale convey the Premises to the Earl and his Heirs, which was enroled in Chancery, in which Deéd there was a Warranty against Sir Oliver and his Heirs. That in the same Term, viz. Octab. Purificationis, William Mitton and Bridget his Wife, levied a Fine sur Cognisance de droit come ceo, etc. to the Earl. That Francis Lee was Son and Heir of Sir Oliver Lee. That Sir Oliver and Elizabeth died in the Life-time of Francis, and that Francis died leaving Issue Sir Thomas Lee, the now Lessor of the Plaintiff. That the Warranty descended upon him being inheritable to the Estate Tail. That the Estate of the Earl of Salisbury descended to the present Earl, who was the Defendant. That Sir Thomas Lee entered and made a Lease to the Lessor of the Plaintiff. Question. The Question upon this Special Verdict was, if by the Fine sur concesserunt levied 7 Jac. the Estate which the Husband and Wife had in possession only passed, or whether that and the Estate for Life, which the Husband had after the Tail spent, passed likewise. If the latter, than they passed more than they could lawfully grant, because of the intervention of the Estate Tail; and then this Fine wrought a * Co. Lit. 338. b displacing or divesting the Estate of William Mitton for Life in Reversion and turned it into a Right; and if so, than this collateral Warranty of Sir Oliver Lee will descend on Sir Francis, and from him to the Plaintiff, and will bar his Entry; But if the Estate was not displaced and turned into a Right at the time of the Warranty, than the Heir is not barred by this collateral Warranty of his Ancestor. This Case was argued by Sergeant Pemberton for the Plaintiff, and by Sir William Jones the Attorney General for the Defendant. Ex parte Quer. And for the Plaintiff it was said, that this Fine passed only the Estate which William Mitton and his Wife had in possession and no other, and therefore worked no divesting; and his Reasons were: 1. Such a Construction seems most agreeable to the intention of all the Parties to the Fine. 2. It may well stand with the Nature and the Words of the Fine. 3. It will be most agreeable both to the judgements and Opinions which have formerly been given in the like Cases. And as to the first of these it will be necessary to consider what will be the effect and consequence of levying this Fine both on the one side and the other. It cannot be denied but that there was a Purchase intended to be made under this Fine, and that the Parties were willing to pass away their Estate with the least hazard that might be to themselves; neither can it be imagined that they intended to defeat this Purchase as soon as it was made, which they must do if this Fine works a Forfeiture; for than he in Remainder in Tail is entitled to a present Entry, and so the Estates for Life which the Baron and Feme had are lost, and there was a possibility also of losing the Reversion in Feé, which the Tenant in Tail after his Entry might have barred by a Common Recovery. And had not the Parties intended only to pass both the Estates, which they lawfully might pass, why did they levy this Fine sur concessit? They might have levied a Fine sur Cognisance de droit come ceo, etc. and that had been a Disseisin. Besides what need was there for them to mention any Estate which they had in these Houses, if they had intended a Disseisin? But this being done, such a Construction is to be made as may support the intent of the Parties; and it would be very unreasonable, that what was intended to preserve the Estate should now be adjudged to work a Dissesin so as to forfeit it; and such a Disseisin upon which this collateral Warranty shall operate and bar the Estate in Remainder. And therefore no more shall pass by this Fine than what lawfully may; and rather than it shall be construed to work a Wrong, the Estate shall pass by fractions; for both the Estates of William Mitton for Life, are not so necessarily joined and united by this Fine that no room can be left for such a Construction. 2. Such a Construction will not agreé with the Nature and Words of this Fine. 'Tis true, a Fine as it is of the most solemn and of the greatest Authority, so 'tis of the greatest force and efficacy to convey an Estate, and the most effectual Feoffment of Record where 'tis a Feoffment, and likewise the most effectual Release, where 'tis to be a Release. But on a bare Agreément made in Actions between the Demandant and Tenant at the Bar, and drawn up there, the judges will alter and amend such Fines, if they did not in all things answer the intention of the Parties. 24 Ed. 3. 36. Postea. 'Tis agreed that Fines can work a Disseisin when they can have no other Interpretation, as if Tenant pur altar vie levy a Fine to a Stranger for his own Life, 'tis more than such a Tenant could do, because his Estate was during the Life of another and no longer. So a Fine sur Cognisance de droit, etc. implies a Fee, which being levied by any one who has but a particular Estate will make a Disseisin. But this Fine sur concessit has been always taken to be the most harmless of all others, and can be compared to nothing else than a Grant of totum statum suum & quicquid habet, etc. by which no more is granted than what the Cognisor had at the time of the Grant, and so it hath been always construed. Indeed there is a Fine sur concessit which expresses no Estate of the Grantor, and this is properly levied by Tenant in Fee or Tail; but when particular Tenants pass over their several Estates they generally grant totum & quicquid habent in tenementis praedictis, being very cautious to express what Estate they had therein. When this Fine sur concessit was first invented the judges in those days looked upon the Words quicquid habent, etc. to be insignificant, and for that reason in Anno 17 E. 3. 66. they were refused: The case was; Two Husbands and their Wives levied such a Fine to the Cognisee, and thereby granted totum & quicquid habent, etc. which Words were rejected, and the judge would not pass the Fine, because if the Party had nothing in the Land than nothing passed; and so is 44 Ed. 3. 36. By which it appears that the judges in those times thought these Fines did pass no more than what the Cognisor had; and for this there are multitude of Authorities in the Year Books. Now these Words cannot have a signification to enlarge the Estate granted, they serve only to explain what was intended to pass; for in the Case at the Bar, if the Grant had been totum & quicquid habent in tenementis praedictis there would have been no question of the Estate granted; but the Cognisors having granted tenementa praedicta, they seem by these subsequent Words to recollect themselves, viz. totum & quicquid habent in tenementis praedictis. Object. But it may be objected that the Limitation of the Estate, viz. durante vita eorum & alterius eorum diutius viventis works a Disseisin, because by those Words two Estates for Life pass entire in possession, whereas in truth there was but one Estate for Life of the Husband, in possession; and therefore this was more than they could grant, because the Estate tail came between the Estate which the Husband and Wife had for their Lives and for the Survivor of them, and the Estate which the Husband had for his own Life. And this is farther enforced by that Rule in Law, That Estates shall not pass by fractions; for otherwise there can be no reason why they should not thus pass. Answ. But this Rule is very fallible, and not so much to be regarded; 'tis true, the Rule is so far admitted to be true, where without inconveniency Estates may pass without fraction; but where there is an inconveniency it may be dispensed withal, it being such an inconveniency as may appear to the judges to make the thing granted, to go contrary to the intent of the Parties. And that such Interpretations have been made, agrees with the third Reason proposed in this Case, viz. That it hath received countenance by judicial Opinions and determinations in former judgements, 14 E. 4. 4. 27 H. 8. 13. 1 Co. 67. Bredons' Case, which was thus; Tenant for life, remainder in tail to A. remainder in tail to B. Tenant for life, and he in the first remainder levied a Fine sur cognisance de droit come ceo; it was adjudged that this was no Discontinuance of either of the Remainders, 1 Roll. Abr. lit. I. pl. 4. 1 Inst. 45. a. Cro. Car. 406. because each of them gave what he might lawfully, viz. The Tenant for Life granted his Estate, and the Remainder-man passed a Fee-simple determinable upon his Estate Tail, and yet each of their Estates were still divided. On the other side it was said, that in all Cases where the person who hath a particular Estate, takes upon him either by Feoffment in pais or by Fine, which is a Feoffment on Record, to grant a greater Estate than he hath (as in this Case is done) though possibly the Estate of the Grantée may determine before that of the Grantor, yet 'tis a displacing the Reversion; as if a Man has an Estate for ten Lives, and makes a Grant for the Life of another; here is a possibility, that the Estate which he granted may be longer than the Estate he had in the thing granted, because one Man may survive the Ten, and for that reason 'tis a divesting. 1. In this Case the Estate which the Husband and Wife had is to be considered. 2. What they granted. And by comparing of these together it will appear whether they granted more than they had: The Husband and Wife had an Estate for the Life of the Wife, and (after the Estate Tail) the Husband had an Estate for his own Life, now they grant an Estate for the Life of the Husband and Wife and the Survivor; What is this but one entire Estate in possession? No other Interpretation can be agreeable to the sense of the Words; for if it had been granted according to the true Estate which each had, than it should have been, first for the Life of the Wife, and after the Tail spent, then for the Life of the Husband. The next thing to be considered is, Whether the Estate shall pass entire or by fractions? And as to that I need say no more than only to quote the Authority of that judgement given in Garret and Blizard's Case, 1 Roll. Abr. 855. which is shortly thus, viz. Tenant for Life, Remainder for Life, Remainder in Tail, Remainder in Fee to the Tenant for Life in Remainder; this Tenant for Life in Remainder levies a Fine come ceo, etc. it was adjudged a Forfeiture of his Estate for Life; so that the Remainder Man in Tail might enter after the death of the Tenant for Life in possession; for it shall not be intended that he passed his Estate by fractions, viz. an Estate in Remainder for Life and a Remainder in Feé expectant upon the Estate Tail, but one entire Estate in possession; and 'tis not like the Authority in Bredon's Case, for there the Estate for Life and the Estate Tail followed one another. Next it is to be considered, whether after they granted omnia illa tenementa, the subsequent Words & totum statum suum, etc. do not come in by way of Restriction, and qualify what went before. But those subsequent Words are placed in this Fine, not by way of Restriction but of Accumulation. Litt. 345 In Littleton Sect. 613. 'tis said, that if Tenant in Tail grants all his Estate in the Tenements, Habendum all his Estate, etc. in this Case the Alienee hath but an Estate for the Life of the Tenant in Tail; and 'tis observable that totum statum in the Case put by Littleton is both in the Premises and the Habendum: But if I will grant tenementa praedicta in the Premises, and then make another Limitation in the Habendum, there totum statum & quicquid, &. can make no Restriction, if it should, it will spoil most Conveyances. It is agreed, that if those Words had been omitted in this Case, then by this Fine the Reversion would be displaced, and therefore much weight is laid upon these Words to explain the meaning of the Parties thereby, and that when they granted tenementa praedicta they meant totum statum, etc. But here is no ground for such an Interpretation; 'tis an entire Grant of the Houses by the Words Tenementa praedicta; and the subsequent Words shall never be allowed to make such a Restriction which shall overthrow the frame of the Deed. If a Man, who has no Estate in the Land, passes it by Deéd, this shall work against him by way of Estoppel; and these Words totum & quicquid, etc. which are usual in all Conveyances, shall make no alteration of the Law; for if such construction should be made of these Words, as hath been objected, then in all Deeds where they are inserted, if it happen that the Party hath no Estate, or a void Estate, nothing passes; and then Covenants, Estoppels, and Warranties would be no Securities in the Law. 2. These Words totum & quicquid, etc. come in a distinct Clause of the Grant; the precedent Words are, Tenementa praedicta & totum statum & quicquid, etc. reddiderunt, which are two parts, a Grant and a Release, and have no dependence upon each other, being distinct Clauses, and therefore these Words shall not be any Restriction of the former; but if one Clause be carried on with a connexion, so as 'tis but an entire sentence; in such Case a Man may restrain either general or particular Words, Hob. 171. in Stukely and Butler's Case. 3. Admitting these Words are a Restriction of the former, yet the Estate is so limited, that if the first Words were out of the Case, this later Clause he said was enough for his purpose, for the Grant is not in the usual Words by which Estates pass, viz. Estate, Right, Title, Interest, but Totum & quicquid, etc. for the Lives of the Grantors and the Survivor, which shows that they took upon themselves to grant for a longer time than they had in possession; if they had only granted it for both their Lives, they might have some colourable pretence. 4. 'Tis apparent from the Clause of the Warranty that the intent of the Parties was to grant an Estate expressly in possession for the Lives both of the Husband and his Wife; for 'tis that which the Grantée shall hold, etc. during their Lives and the longest Liver. Object. The Case of * 2 Rol. Abr. 36, 403. Eustace and Scaven has been objected: 'Tis reported in 2 Cro. 696. which is, Feme Covert and A. are jointenants for Life, the Husband and Wife levy a Fine to A. the other jointenant, and grant the Land and totum & quicquid habent, etc. to him during the Life of the Wife with Warranty, the Wife survives A. her Companion; Adjudged that these Words Totum & quicquid shall not enure by way of Grant and severance of the jointure of the Moiety, for then there would be an Occupancy; but they are restrictive only to the Estate of the Wife, and shall enure by way of Release to A. so that after his death he in Reversion may enter. Answ. It would not be a Question in that Case, whether these Words were restrictive or not, for nothing was granted but what might lawfully pass, viz. during the Life of the Wife the other joint-tenant; neither was there any stress laid on those Words; for Mr. justice Jones, who was a Learned Man and reported the same Case fol. 55. hath made no mention thereof, but hath wholly omitted those Words, which he would not have done, if the Case had depended upon them. 2. Object. Next, the Form of this Fine has been objected, and a Precedent was cited Rast. Entr. 241. where such a Fine was levied and nothing passed but for the Life of the Conusor. Answ. But no Authority can be produced, where a Man that had an Estate for Life in Possession and another in Remainder, and granted by the same Words, as in this Case, but that it was a Forfeiture. 3. Object. That the Law will not make a Construction to work a Wrong, and therefore if Tenant for Life grant generally for Life, it shall be interpreted during the Life of the Grantor. Answ. That Case is without express Words, or showing any time for which the Grantee shall have the thing granted; and therefore the Law restrains it to the Life of the Grantor, because it will not make Words which are doubtful and of incertain signification to do any Wrong: But where there are express Words as in this Case, no other Construction can be made of them but that an Estate in possession was thereby intended to pass. 4. Object. That this Fine and Grant must be construed to enure according to the intent of the Parties, ut res magis valeat, and they never intended to make a Forfeiture. Answ. Certainly no Man ever intended to make a Forfeiture of his own Estate, those are generally the effects of Ignorance and not of the Will, as the Case of Gimlet and Sands, Cro. Car. * 1 Roll. Abr. 856. 391. where Tenant in Fee makes a Feoffment to two to the use of himself for Life, then to the use of his Wife for Life, Remainder in Tail to his Son and Heir, Remainder to his own right Heirs; and afterwards he made another Feoffment to Smith with Warranty; the Mother and Son join in another Feoffment, adjudged that this was a Forfeiture of her Estate for life, though she had no notice of the Warranty made by her Husband; for the Feoffment made by him was a public Act upon the Land, and she ought to have taken notice of it; and though by her joining in the Feoffment with her Son, she did not intent to forfeit her Estate, yet the Law adjudges according to what is done: But in the Case at Barr, the intention of the Parties may be collected by the Act done; and there is great reason to presume, that the Parties thereby intended to displace the Reversion; for the Husband joining in the Fine, and in the Warranty (if it was no divesting) the Warranty is of no use. Another Objection has been only mentioned, which is, that admitting this should amount to a displacing, if the Estate had been in possession; yet in this Case it would not, because it was prevented by the Lease for years in being. But that cannot hinder the execution of this Fine; 'tis a Fine sur concessit, which is executory in its nature, and doth not pass any Estate, or take any effect till executed, and so is the Book, 41 5. 3. 14. b. But in this Case the Fine was executed, which may be by matter in pais, as well as by Scire facias, and as to this purpose, may be executed by the entry of the Conusor, 1 Rep. 106. Dyer 376. b. without suing out any Execution, 38 Ed. 3. Brook tit. Scire facias 199. If there had been a Fine executed, there would have been little doubt left in this Case; and by the Attornment of the Lessee for years, it must be admitted that this Fine was executed, as 8 Ed. 3. f. 44. For a Fine of a Reversion may be executed to all purposes by the Attornment of the Lessee for years; and if so, when a Fine executory is once executed, 'tis as good as a Fine sur Conusance de droit come ceo, to make a forfeiture of the particular Estate. Where a Feoffment is made, and a Lease for years is in being, the Feoffment is not good; because in such case there must be a present transposition of the Estate, Postea, Moor and Pitt. which is hindered by the Lease. But in case of a Fine, which is a Feoffment upon Record, a Lease for years is no impediment or displacing of the Reversion; for if Tenant in tail, expectant upon a Lease for years, levy a Fine, 'tis a discontinuance of the Tail, and notwithstanding this Lease, the Fine has such an operation upon the freehold, that it displaces the Reversion in Fee, Co. Lit. 332. And therefore if a Lease for years prevents not a Discontinuance, it will much less hinder a displacing in this case. But no judgement was given now in this Case; another matter being debated, whether the Plaintiff could have judgement, because he was barred by the Statute of Limitations; for it did not appear that he had been in possession for twenty years past, and the Verdict hath not found any Claim, or that the Plaintiff was within the Proviso of the Act. Waterfield versus the Bishop of Chichester. Oath Ex Officio not to be administered. A Prohibition was granted last Easter-Term, to the Bishop of Chichester, upon a Suggestion made by Waterfield, that he being chosen Churchwarden of the Parish Church of Arundel in the County of Sussex, the Bishop tendered him an Oath ex officio, which was, that he should Present every Parishioner, who had done any Offence, or neglected any Duty mentioned in certain Articles, contained in a printed Book delivered to him; some of which Articles concern the Churchwarden himself, and so in effect he was to swear against himself, in case of any default, which is expressly against the Statute of 13 Car. 2. Sid. 232 cap. 12. which prohibits any person having Ecclesiastical jurisdiction, to administer the Oath ex officio, or any other Oath, whereby the person to whom 'tis administered, may be charged to accuse himself of any criminal matter, whereby he may be liable to any Censure or punishment; and because the Bishop had Excommunicated him for refusing such Oath, he prayed a Prohibition, which was granted, quoad the compelling him to make any answer to the said Articles concerning himself, and the Excommunication was discharged. But now upon the motion of Sergeant Brampston a Consultation was awarded, because it appeared by the Affidavit of the Commissary who tendered this Oath, and likewise by the act of the Court, that he was Excommunicated for refusing to take the Oath of a Church warden, according to Law, which was the only Oath tendered, and therefore the ground of the Prohibition being false, a Consultation was awarded. In this Prohibition it was recited, That the Bishop cannot give an Oath but in two cases, viz. in matters Testamentary, and Matrimonial, whereas they have authority in many cases more; 'tis true also, that until his jurisdiction was increased by Act of Parliament, he could hold Plea in none but those two causes, 2 Inst. 487, 537. but by the Statute De circumspect agatis, and of Articuli Cleri, he may now hold Plea in many other cases. The Bishop informed the Lord Chief justice, that the Plaintiff Waterfeild had caused 2000 of the Prohibitions to be printed in English, and had dispersed them all over the Kingdom, intituling them a true translated Copy of a Writ of Prohibition, granted by the Lord Chief justice, and other the justices of the Court of Common Pleas, in Easter-Term, 1676. against the Bishop of Chichester, who had proceeded against and Excommunicated one Thomas Waterfield, a Churchwarden, for refusing to take the Oath usually tendered to persons in such Office; by which Writ the Illegality of all such Oaths is declared, and the said Bishop commanded to take off his Excommunication: And this was declared by the Court to be a most seditious Libel, and gave order to inquire after the Printer that he might be prosecuted. Eleanor Plummer versus Sir Jeremy Whitchot, Intr. Trin. 27 or 28 Car. 2. Rot. 301. in B. R. IN an Action of Debt for an Escape; Upon Nil debet pleaded, Debt for Escape lies against the Warden of the Fleet, as superior, the Grantee for life being insufficient. Jones 60. 1 Vent. 314. the jury found a special Verdict; upon which the Case was this, Viz. That Sir Jeremy Whitchot was seized in Fee of the Office of Warden of the Fleet, and of several Messages thereunto belonging, and being so seized, did make a Grant thereof to one Duckenfield for life, and for the lives of three more. Duckenfield by Rule of Court was admitted into the said Office, being approved by the Court, and esteemed a Man of an Estate. He suffers a Prisoner afterwards to Escape, and being not able to make the Plaintiff satisfaction, this Action was brought against Sir Jeremy Whitchot, the now Defendant; and whether he was chargeable or not with this Action was the Question. Wallop, who argued for the Plaintiff said, Ex parte Quer. That he would not take up any of their time to make a Narrative of Imprisonment for Debt, or what remedy there was for Escapes at Common Law, and what remedy by the Statute; but supposing an Action of Debt will lie, whether it be by the Statute of Westm. 2. cap. 11. (for at the Common Law before the making of that Act, Sid. 306, 397. an Action of Debt would not lie against the Gaoler for an Escape, but a special Action on the Case, grounded on a Trespass) or whether this Action lay against the Defendant by the Statute of 1 R. 2. 2 Inst 382. cap. 12. which gives it against the Warden of the Fleet, who in this case had not the actual freehold in possession, but the inheritance, and not the immediate Estate, but the Reversion, is in Question. The Office of the Warden of the Fleet, may be taken in two capacities, either as an Estate or common Hereditament, wherein a Man may have an Inheritance, and which may be transferred from one to another; or as a public Office, wherein the King and the People may have a special Interest. As 'tis an Inheritance transferrable, 'tis subject to the Rules of Law in point of Descent, and is demisable for Life, in Fee, tail, Possession or Reversion, and in many things is common, and runs parallel with other Estates of Inheritance. 'Tis true, he cannot grant this Office for years, not for any disability in the Grantor, but in respect of the matter and nature of the thing granted, it being an Office of Trust and Personal, for otherwise it would go to the Executor, which is inconvenient, 9 Co. 96. Sir George Reynell's Case. To inquire what superiority the reversioner hath over the particular Estate is not to the point in Question; but there is such an intimacy and privity between them, that in judgement of Law they are accounted as one Estate. And therefore Littleton Sect. 452, 453, saith, that a Release made to a Reversioner shall aid and benefit him who hath the particular Estate, and likewise a Release made to the Tenant of the Freehold, shall enure to him in Reversion, because they are privies in Estate; so that these two Estates in the Case at Bar make but one Office. This is a public Office of great Trust, and concerns the Administration of justice; and therefore 'tis but reasonable to admit the Rule of Respondeat Superior, lest the Party should be without remedy; and the rather, because Execution is the life of the Law, 39 H. 6. 33. He who is in the Office as Superior, whether it be by droit or tort is accountable to the King and his People, and this brings him within the Statute of Westm. 2. cap. 11. or 1 R. 2. If the Defendant had granted the Office in Fee to Duckenfeild before any Escape had been, and the Grantee had been admitted, the Defendant than had been discharged; or if he die before or after the Action brought and before judgement, moritur actio cum persona, for if he had not reserved something he could not be charged, and if he had parted with the Inheritance, the privity had been gone, but by reserving that, he hath made himself liable; for now he is Superior, he may exact Homage and Fealty, and the particular Tenant is said to be attendant upon the Reversion, and these are marks of Superiority. And this Rule of respondeat superior holds not only between the principal Officer and his Deputy, and between the Master and his Servant; but in many other Cases one is to be answerable for another, as 1. Where a Man has power to elect an Officer, he is chargeable; so the County hath power to elect Coroners, and if they fail in their Duty, the County shall be charged, for by reason of the power they had to elect, they are esteemed Superiors, 4 Inst. 314. 2 Inst. 175. 2. Where one Man recommends another to an Office concerning the King's Revenue, the person who recommends is liable, if the other prove insufficient; and for this there is a notable Case 30 E. 3. 6. 'Tis Porter's Case, cited in the Case of the Earl of Devonshire, 11 Co. 92. b. Where Porter being Master of the Mint, covenanted with the King to deliver him Money within 8 days for all the Bullion delivered ad Cambium Regis to Coin, which he did not perform, Et quia Walwyn & Picard duxerunt & praesentaverunt the said Porter, ideo consideratum est quod onerentur versus Dominum Regem: 4 Inst. 466. And why not the Defendant in this Case, who praesentavit the said Duckenfeild to the Court tanquam sufficientem, the reason being the same? and the King is as much concerned in the ordering this Court of justice, as in the ordering of his Coffers; for as the Treasure is Nervus Belli, so the execution of the Law is Nervus Pacis. 3. In the Case of a dependant Officer, though he is a proper Officer and no Deputy, the person who hath the Reversion shall answer, as in 32 H. 6. 34. 2 Inst. 382. 9 Rep. 98. Dyer 278. b. The Duke of Norfolk who had the Inheritance of the Marshalsea, was charged for an Escape suffered by one Brandon, who was Tenant for Life, in possession of the said Office; and there is great reason it should be so; for when a principal Officer may make an inferior Officer, who afterwards commits a Forfeiture, the superior shall take advantage of this Forfeiture, and 'tis as reasonable he should he answerable for his Miscarriage, Cro. Eliz. 384. Poph. 119 The Earl of Pembroke against Sir Henry Berkley. And therefore admitting the Defendant is out of the Statute, yet he is within the Maxim of Respondeat Superior, which is not grounded upon any Act of Parliament, as appears in the Case of the Coroner, and the Statute of Westm. 2. And all other Acts which inculcate this Rule, are but in affirmance of the Common Law; and this is not only a Rule of the Common, but also of the Civil Law, which is served with the Equity of this Maxim, in Cases of like nature; and since 'tis purely remedial, such a Construction ought to be made, as may most advance the remedy, 2 Inst. 466. In the Case of Morse and Slew, lately in this Court, 1 Ventr. 191, 238. the Question was, whether a Master of a Ship should be charged upon the Common Custom of England, for negligently keeping Merchant's Goods? And adjudged that he was, though rob: Lex Mercatoria makes a provision for it; for the remedy against the Master is most direct and immediate; that against the Owner is collateral, in favour of the Merchant, to whom datur electio and therefore that the Interest of the Merchant might be served, the Law in that case provides a double Remedy. And in Linwood, lib. 3. De Clerico non resident f. 73. verbo Vicarius; 'tis said, that in the same Church there may be a Rector and a Vicar, and the Cure of the Church may be divided between them; the Vicar is not the Deputy of the Rector, but hath a distinct Office from him; and as the Temporalities of the Vicar are but a derivation from the Benefice of the Rector, so his Cure is derived from that of the Rector also. In like manner, Duckenfield here is not a Deputy to the Defendant, but an immediate and proper Officer, and the habitual care and custody is in him, which is enough to bring him within the Rule of Respondeat Superior. These Instances were given, because this is not only a Maxim in England; but is of Foreign production, and adapted to the Rule of Common Law, Vide Bracton, Fleta, Selden. The Statute de Scaccario 51 H. 3. Enacts, That if any man be received into Office in the Exchequer, without the Treasurer's Licence, or if he hath such Licence, and doth Trespass, he shall be punished according to his Trespass, if he have whereof, and if he have not, than he who put him in the Office shall be charged, and if he be not sufficient his Superior shall be charged; so that they shall all answer in their several Stations. And this Statute was made in affirmance of the Common Law; if therefore the Superior of a Superior should answer, why shall not the Defendant in this case answer for his substitute; for though the Warden is not sworn to appoint one who is sufficient to satisfy, he is bound to do it, and 'tis no argument to say that he is discharged, because Duckenfield was appointed by the Court; for that is a work of supererrogation, which is left in the discretion of the Court, and may be done or omitted as they shall think necessary, but is not conclusive, 39 H. 6. 34. especially since the jury have not found that the Court took any examination whether he was sufficient or not; but that he had forfeited his Office, having wilfully suffered a Prisoner to Escape, and then the Defendant is or may be the actual Officer, and having taken Security ought to be charged. Sir William Jones, who argued on the other side, Ex parte Def. before he spoke to the Case endeavoured to remove a doubt upon the Special Verdict, which found that the Defendant had taken Security from Duckenfield to indemnify him from Escapes. This says he might be an Argument at a Nisi Prius to induce a jury to find Damages, but could not make a Man chargeable who was not so before. 2. Though the Defendant had a Covenant from Duckenfield to pay 1500 l. per annum to him, yet that will not make him more liable than if nothing had been to be paid; neither did he lay any weight upon it, that the Defendant had any notice of the insufficiency of Duckenfield, for if he is chargeable he is bound to take notice at his peril; and no Body can believe that the Court of Common Pleas is chargeable, for that was mentioned in the Argument for the Plaintiff, that the Superior of a Superior shall be charged where he is insufficient; neither did he insist upon the Rule in the Common Pleas, by which Duckenfield was admitted; but he considered, 1. Whether the Defendant was chargeable by the Statute of Westm. 2. cap. 11. 2. If he could clear him from that Statute whether he was chargeable at the Common Law or by any other Statute. And he said that he was not chargeable by the Statute of Westm. 2. which gives an Action of Debt against the Gaoler for an Escape: Many Authorities might be cited to prove that where a Man is in Execution on an Action of Debt, that such an Execution is not within that Statute, 7 H. 6. 5. Bro. tit. Escape pl. 9 Pl. Com. 35. It was doubtful there how a Gaoler became chargeable for the Escape of a Man who was in Execution for Debt; but were he in Execution for Matter of Account he is chargeable by the express Words of the Statute, which are Caveat sibi Vicecomes & Custos Gaolae; and the Parliament in 1 R. 2. did not think the Warden chargeable, for if they did, to what purpose was it to make the Warden of the Fleet liable to an Action of Debt for an Escape of a Man in Execution for Debt, if he was chargeadle before by that Statute of Westm. 2; This was urged to show that at that time it was not clear. But because there are Authorities that seem another way, he did not affirm or deny it after such varieties of Opinions, but proceeded to argue these two Points. 1. That the Rule of Respondeat Superior doth not extend to this Case. 2. That a Reversioner is not a Superior. Postea. 1. The Statute de Donis is by some called the Statute of great Men, because the intent of it was for the preservation of their Estates; and this Statute being made in the same * 13 Ed. 1. year seems also to have a particular regard to the Lord to give him a quick and more severe remedy against his Servant and Bailiff than he had before; for it makes him in effect his own judge against him in Cases of Account, because it gives him Authority to assign Auditors, and such as he appoints must stand, and the Servant has no remedy but by Writ * F. N. B. 129. ex parte talis in the Exchequer; yet no Man ever thought that by the Equity of this Statute the same may be done in an Action of Debt, and therefore the difference in the Proceed between Actions of Account and Debt seems to imply that an Action of Debt is not within the Rule of Respondeat Superior. 2. There is a great difference betweéns the Restraint of Prisosoners in Execution for Debt, and those who are imprisoned by this Act for Arrear of Rent, which directs that they shall be arrested etc. & carceri mancipentur in ferris; but this the Gaoler could not have done at the Common Law; neither was it ever practised or allowed by the Law that a Prisoner should be so used, who is in Execution for Debt, unless he be unruly and endeavour to escape; but 'tis expressly against the Law to do it where there is no such reason, because a Prison is for the safe Custody of Men and not to punish them, 1 Inst. 260. a. So that it appears by this that a stricter remedy was provided for Executions in Account than for those in Debt. 3. There are certain persons also who are made chargeable by this Statute when the Execution is in Account, who cannot be charged in Debt; for the Statute Enacts, That if the Party escape, the Officer in whose Custody he is shall answer, sive infra Libertatem sive extra; so that the Gaoler shall be charged whether he be of a Franchise or of the County at large; but if a Man is in Execution for Debt, and then escapes, the Gaoler is not liable, but the Sheriff; though the * 3 Co. 71. Westby's Case. Gaoler hath the Custody of the Body of one whom the late Sheriff did not deliver over to the present Sheriff: So that in this also there is a difference upon this Statute between Actions of Account and Actions of Debt, and therefore the Clause therein of Respondeat Superior being made upon a particular occasion only in the Case of Account, shall not be extended to other Matters, and can in no wise influence this Case, which for other Reasons cannot be governed by that Rule, if extended to all who have power to depute an Officer, and thereby give him an Interest, or to appoint one for a time. 2. Point. 1. Because he in Reversion is not in propriety of Speech a Superior; for 'tis not said that a Reversioner after an Estate for Life is Superior and of more account in the Law than he who hath the particular Estate, but on the contrary he who hath the Fréehold is of greater account and regard in the Law than the Reversioner after him; and if (as it hath been objected) both make but one Estate then there can be no Superiority, and it would be very hard and difficult for any Man to prove that any Attendancy is made by the Tenant for Life upon him who hath the Reversion. 2. Here is room enough within the Statute to satisfy that word Superior by a plain and clear construction without bringing in the Reversioner; for if the Sheriff makes a Deputy or a Lord makes Bailiff of a Liberty, the Sheriff and the Lord are properly the Superiors. 3. This word Superior is used in the Statute made the same year with this cap. 2. in signification agreeable with the Case in question; for it recites that where Lords of Fees distrain their Tenants for Rents and Services, and they having replevied their Cattle do alien or sell them, so that a Return cannot be made; then it provides that the Sheriff or Bailiff shall take Pledges to prosecute the Suit before they make deliverance of the Distress, and if the Bailiff be not able to restore (that is, if he take insufficient Pledges) the Superior shall answer, by which the Parliament could mean no other than the Lord of that Liberty; for if it should be otherwise there would be no end of Superiors; as if there is a Bailiwick in Fee of a Liberty, and the Bailiff thereof grants it for Life, in this Case there are two Superiors, for the Lord of the Bailiff is one, and the Bailiff himself is another, which cannot be, 2 Inst. 382. There is a Congruity in Law in saying the Sheriff and Lord are Superiors, but there can be none in making the Reversioner a Superior. The Lord may lose the Liberty if his Bailiff for Life or in Fee commit a Forfeiture, as by not attending the justices in Eyre; but a Reversion cannot be lost by the Forfeiture of the Tenant for Life; if the Bailiff make an ill Execution of a Writ or suffer the Party to escape, the Lord shall answer; so if the Marshal of England appoint a Marshal there may be a Forfeiture of his Office, because 'tis but still the same Office; and therefore the Case in Cro. Eliz. 386. where 'tis said, If an Office be granted for Life, the Forfeiture of Tenant for Life shall be the Forfeiture of the whole Office, is mistaken; for in Moor pl. 987. 'tis held otherwise; and upon the true difference between a Deputy and a Granteé for Life; for in the first Case there may be a Forfeiture of the Superior, because 'tis still but the same Office; but in the other Case the Superior shall not forfeit for any Misdemeanour of the Grantée for Life, because he hath the Freehold of the whole Office, and the other nothing but the Reversion, and therefore if the Defendant be liable in this Case 'tis in respect, 1. That he hath granted the Estate. 2. That he hath the Reversion or Residue after the Life of the Grantee. He cannot be charged in respect that he hath granted the Estate, because the Freehold is gone and in another; neither can he be charged in respect of the Reversion, because than not only his Heir but the Assigneé of the Reversion will be chargeable also, which cannot be. As to the second Point of this Argument; if the Defendant is not chargeable by this Statute he is not to be charged at the Common Law. Sid. 306, 397. 2. Because the Common Law doth not give an Action of Debt for an Escape, but an Action on the Case only; neither doth it give any Remedy but against the Party offending. As to the Case that hath been objected upon the Statute de Scaccario, where the several Officers in the Exchequer shall answer in their degrees of Superiority, that cannot be applicable to this Case, because there can be no proportion betweéns things which concern the King's Revenue and Prerogative, and those of a common person. The Cases of the Coroner and the Sheriff, and of the recommending of a Receiver to the King are not like this Case, because the King cannot inform himself of the sufficiency of the Party recommended, and therefore 'tis but reasonable that he who recommends should be liable; and can it be said that when the Defendant was about to sell this Office to one Norwood (which he hath since done) that if a Stranger had recommended Norwood and he had proved insufficient, that the Stranger would have been liable? As for the Civil Law and the Authorities therein cited to govern this Case, he did not answer them because they judge after their Law, and the Common Lawyers after another way. This Office hath been granted time out of mind for Life, and no doubt but many Escapes have been made, but never was any Action brought against him in the Reversion before now. The Court of Common Pleas always examine the sufficiency of the Grantee for Life, which shows that in all succession of Ages the Opinions of Learned Men were, that no Escape could be brought against the Reversioner; for if so, what need is there of such Examination? This was urged to show that the Proceed of that Court did not alter, but interpret the Law. But admitting the Case of the Duke of Norkfolk to be Law, yet it concerns not this, because the Sub Marshal there was taken as a Deputy, but there is no such Officer as a Sub-Warden, for Duckenfield had it for Life. And then a Deputy being a person removable at pleasure, will not be so considered in Law, as one who hath a more fixed Estate; for having nothing to lose, it cannot be intended that he will be so careful in the execution of his Office, as the other; and therefore 'tis reasonable in such Case, that the Superior should answer: But he who hath a Freehold for Life, hath an Estate of some value in the Law, which he cannot be supposed easily to forfeit, and therefore 'tis reasonable that he alone should be liable for his own Miscarriages; for if the Defendant should be charged, by the same reason the Grantee of the Reversion may be charged, who is altogether an innocent person, and so may be liable to a vast Sum for the Fault of another; for which Reasons he prayed judgement for the Defendant. The Court delivered no Opinion this Term, Judgement. but took time to advise; and afterwards in Easter Term following Rainsford Chief justice delivered the Opinions of Twisden, Wild and Jones justices, who said they were all agreéing in the main Point, but thought the Verdict imperfect, and not to warrant the Plaintiffs Case; for he declared that at the time when the Grant was made to Duckenfield, when the Commitment was, and when the Escape was suffered, and ever since, that Duckenfield was insufficient and not able to answer the Plaintiff; but the jury in the Special Verdict do not find the insufficiency at that time when this Action was brought. But as to the main Question they were of Opinion that the Defendant was Superior, and that he is chargeable for this insufficiency of Duckenfield; but if he had been sufficient when the Plaintiff brought this Action, it might have been otherwise; but his Inability being fully averred in the Declaration; and the Defendant denying it, and the jury having found nothing against it, but there being strong Suspicions of the truth of the Fact, the Court would not make an intendment to the contrary. The jury have found expressly that Duckenfield was insufficient at the time of the Escape, which was within six Weeks of the time when the Action was commenced; so that having once found him disabled, unless it appear that he was of Ability afterwards, the Court will not intent him so; but rather that he was insufficient at the time of the Action brought; for there being strong surmises of it, and there being no ground within the Record to intent him sufficient, a Fact may be collected that is not found in the Verdict, Fulwoods' Case, 4 Co. The King versus Moor. Difference between a prohibitory Clause, and a Clause which gives a Penalty in a Statute. AN Information was brought upon the Statute of the 4th & 5th of Philip and Mary, cap. 8. which Enacts, That if any Person, etc. above the Age of 14 shall after the first day of April (next after the making the Statute) unlawfully take a Maid or Woman unmarried, being within the Age of 16 years, etc. the Party shall suffer two years' Imprisonment, or pay such Fine as shall be assessed in the Star Chamber, and that the Defendant existens supra aetatem quatuordecim annorum did take a young Maid away unmarried, and kept her three days contra formam Statuti; upon which he was found Guilty, and now moved in Arrest of judgement. 1. It was said for the Defendant, that this Court could not Fine him upon this Statute, because when the Informer entitles himself by a Statute, he must take the remedy therein prescribed; and so 'tis not like an Information at the Common Law, for in such case this Court might Fine the Plaintiff. 2. It is not averred, that the party offending was above the age of 14 years at the time of taking, but only that he being above the age of 14 such a day did take. Where there are not Negative Words, the Court of King's Bench is not restrained. Mod. Rep. 34. Sid. 359. Sir William Jones contra. If the first Objection hath any weight in it, 'tis to bring the Party to an Imprisonment for the space of two years, which is a punishment directed by that Statute, but the Fine is limited to the Star Chamber, and those Offences which were punishable there, are likewise to be punished here, because there are no Negative words in this Statute to abridge the authority of this Court, which is never restrained, but when the Statute directs before whom the Offence shall be Tried, and not elsewhere. It was the Opinion of my Lord Chief justice Hales, That where there is a prohibitory Clause in a Statute, and another Clause which gives a Penalty, if the Party will go upon the prohibitory Clause, Postea. he is not confined to the manner expressed in the Statute, but if he will go upon the Penalty, he must then pursue what the Statute directs. The first part of this Statute is but a Declaration of the Common Law; the second Clause is introductive of a new Law as to the Court of Star Chamber, but is not a restriction as to this Court, which might have punished the Defendant if there had been no such Law. The first Clause is prohibitory, viz. That it shall not be lawful for any person to take away a Maid unmarried, and upon this Clause this Information is brought: The second Clause is distinct, and directs the punishment, viz. Upon Conviction to suffer Imprisonment for two years. Now by taking away the Court of Star Chamber, this prohibitory Clause is not repealed, upon which a Man may be Indicted without demanding the Penalty; and the Statute having directed that the Offence shall be heard and determined before the King's Council in the Star Chamber, or before the judge of Assize, and no Negative words to restrain this Court; therefore the Chief justice, who is the judge of * Cro. Car. 463. Assize in the County of Middlesex, may hear and determine this Offence, and by consequence Fine the Party if he be found Guilty. As to the second Objection, That it is not averred, that the Party offending was above the age of 14 years at the time of the taking, it had been better if it had been said tunc existen' supra aetatem quatuordecim annorum; but notwithstanding 'tis well enough; for 'tis said, that being above the age of 14 years, such a day he did take, etc. so that it cannot be otherwise but that he was of such an age at the time when the Maid was taken; and the jury found him Guilty contra formam Statuti; which may likewise be an Answer to the first Objection; for he being found Guilty contra formam Statuti, if there be any other Statute which prohibits and punishes a Riot, this Information is as well grounded upon such, as upon this Statute of Philip and Mary, for 'tis expressly said, that the Defendant and others did unlawfully assemble themselves together, and riotose & routose made an Assault upon her, so that it shall be intended to be grounded upon such a Law, as shall be best for punishing the Offence. The Court were of Opinion, Curia. That notwithstanding these Exceptions, the Information was good, and was not like the Case of an Indictment upon the Statute for a forceable Entry, That such a day by force and arms the Defendant did Enter into such a House, 2 Cro. 14610 639. existen' liberum tenementum of J. N. and if he doth not say tunc existen ' the Indictment is naught, because the jury may inquire of a thing before it is done; but here the existen being added to the person, carries the sense to the time of the Offence committed. The Statute of 1 R. 3. saith, that all Grants made by Cestui que use being of full Age, shall be good against him and his Heirs, and 'tis adjudged 16 H. 7. that he need not show when and where, but generally existen ' of full Age, and upon the Evidence it must be so proved. Where a thing relates to the Condition of a Man, it shall be tried in the County where the Action is laid, and 'tis not necessary to say in what County he is a Knight or an Esquire; any Citizen and Freeman may devise his Land in Mortmain, by the Custom of London; 'tis enough to say in Pleading existen ' a Citizen and Freeman without setting forth when and where. If a Man be Indicted for not coming to Church, 'tis enough to say existen ' of the Age of 16 years, he did not come to Church. This is an Offence punishable at Common Law, 'tis malum in se. But admitting 'twas an Offence created by the Statute, there being no Negative words to prohibit, this Court hath a jurisdiction to punish this Offence, if the Star Chamber had not been taken away; for the Party had his election to proceed in this Court upon the prohibitory Clause, and the justices of Assize must be intended the justices of Oyer and Terminer, Moor 564. Whereupon the Defendant was Fined 500 l. and bound to his good Behaviour for a Year. Brown versus Waite. Entailed Lands forfeited for Treason. Jones 57 1 Ventr. 299. UPon a Special Verdict in Ejectment, The Case was, viz. Sir John Danvers, the Father of the Lessor of the Plaintiff, was in Anno Domini 1646. Tenant in Tail of the Lands now in Question; and was afterwards instrumental in bringing the late King Charles to death, and so was guilty of High Treason, and died. Afterwards the Act of Pains and Penalties, made 13 Car. 2. cap. 15. Enacts, That all the Lands, Tenements and Hereditaments, which Sir John Danvers had the 25th day of March, in the year 1646. or at any time since, shall be forfeited to the King. And whether these entailed Lands shall be forfeited to the King by force of this Act, was the Question. Wallop, who argued for the Plaintiff said, that the entailed Lands were not forfeited, his Reasons were, 1. These Lands entailed are not expressly named in that Act. 2. Tenant in Tail hath but an Estate for Life in his Lands, and therefore by these words (All his Lands) those which are entailed cannot be intended; for if he grant totum statum suum, only an Estate for Life passeth. 3. These Lands are not forfeited by the Statute of 26 H. 8. cap. 13. which gives the forfeiture of entailed Lands, in case of Treason; hecause Sir John Danvers was not convicted of it by Process, Presentment, Confession, Verdict or Outlawry, which that Statute doth require, for he died before any such Conviction. Sir Francis Winnington the King's Solicitor, argued contra, that entailed Lands are forfeited by the Act of Pains and Penalties; and in speaking to this matter, he considered. 1. The words of that Act. 2. How Estates Tail were created, and how forfeitable for Treason. 1. This Act recites the Act of general Pardon, which did not intent to discharge the Lands of Sir John Danvers and others from a Forfeiture. 2. It recites that he was Guilty of High Treason. 3. Then comes the enacting Clause, Viz. That all the Lands, Tenements, Rights, Interests, Offices, Annuities, and all other Hereditaments, Leases, Chattels, and other things of what nature soever, of him the said Sir John Danvers and others, which they had on the 25th of March 1646. or at any time since, shall be forfeited to the King his Heirs and Successors. 2. As to the creation of Intails, there were no such Estates at the Common Law; they were all Fee-simple Conditional, and post prolem suscitatam the Condition was performed for three purposes. Viz. To Alien, Co. Lit. 19 a. 2 Inst. 334. To Forfeit. Or to charge with a Rent; and thus the Law continued till 13 E. 1. and there having been frequent Wars between King John and the Barons, the great Men then obtained the Statute De donis to preserve their Estates, lest the like occasion should happen again; in which 'tis only mentioned, that the Tenant in Tail should not have power to alien; but it was well known, that if he could not alien, he could not forfeit, for before that Statute, as he might alien post prolem suscitatam, so the judges always construed that he might forfeit, 5 Edw. 3.14. for forfeiture and alienation did always go hand in hand, 1 Co. 175. Mildmay's Case. And from the making of that Statute, it always continued a settled and received Opinion, That Tenant in Tail could not alien, until by the 12th of Ed. 4. a Recovery came in, by which the Estate Tail may be docked, and which is now become a Common Assurance. Then by the Statute of 4 H. 7. cap. 24. Tenant in Tail might bar his Issue by Fine and Proclamation, and all this while it was not thought that such Lands could be forfeited for Treason; which Opinion continued during all the Reign of H. 7. for though by his Marriage the Houses of York and Lancaster were united, yet the Great Men in those days thought there might be some doubt about the Succession, after the death of H. 7. if he should die without Issue, and thereby those differences might be again revived, and therefore no endeavours were used to make any alteration in the Law, till after the death of H. 7. And after his Son H. 8. had Issue, those doubts were removed, and being never likely to arise again, than the Act of 26 H. 8. was made, which gives a Forfeiture of entailed Lands in cases of Treason. The inference from this will be, that all the Cases put before the 26th year of H. 8. and so before entailed Lands were made forfeitable for Treason; and where by the general Words of Lands, Tenements and Hereditaments, 'twas adjudged entailed Lands did not pass, do not concern this Case; but now since they are made forfeitable by that Statute, such general words are sufficient to serve the turn. By the Statute of 16 R. 2. cap. 5. entailed Lands are not forfeited in a Praemunire but during the Life of Tenant in Tail; because they were not then to be forfeited for Treason, 2 Inst. 334. 1 Inst. 3. Co. Lit. 130. If then it appears that the Crime of which Sir John Danvers was guilty, was Treason; and if entailed Lands are forfeited for Treason, then when the Act saith, That he shall forfeit all his Lands; by those general Words his entailed Lands shall be forfeited: And though by the Common Law there can be no Attainder in this Case, the Party being dead; yet by Act of Parliament that may be done, and the words in this Act amount to an Attainder. The intent of it was to forfeit Estates Tail, which may be collected from the general Words; for if a Fee-simple is forfeited, though not named, why not an Estate Tail? especially since the word Hereditaments is very comprehensive, and may take in both those Estates, Spelman's Glossary 227. 2 Roll. Rep. 503. In the very Act of 26 H. 8. cap. 13. Estates Tail are not named, for the Words are, Every Offender convict of Treason, etc. shall forfeit all such Lands, Tenements and Hereditaments which he shall have of any Estate of Inheritance, in use, possession or by any Right, Title or Means, etc. and yet a Construction hath been made thereupon in favour of the Crown; so a Dignity of an Earldom entailed is forfeitable by this Statute by the Word Hereditament, 7 Co. 34. Afterwards in Hillary Term Rainsford Chief justice delivered the Opinion of the Court, Judgement. That upon Construction of the Act of Pains and Penalties this Estate Tail was forfeited to the King. He agreed the Series and progress of Estates Tail to have been as argued by the Solicitor; and that the Question now was whether by the Act of Pains, etc. Estates Tail can be forfeited unless there are express Words to take away the force of the Statute de donis conditionalibus; Preface to 3 Co. for by that Statute there was a settled perpetuity; Tenant in Tail could neither forfeit or alien his Estate, no not in Case of Treason, and Forfeiture is a kind of Alienation; but afterwards by the Resolution in Ed. 4. an Alienation by a Common Recovery was construed to be out of the said Statute, and by the Statute of Fines 4 H. 7. which is expounded by a subsequent Statute of 32 H. 8. cap. 36. Tenant in Tail notwithstanding his former restraint had power to alien the Estate Tail and bar his Issue; but all this while his Estate was not to be forfeited for Treason, till the Statute of 33 H. 8. cap. 20. which gives Uses, Rights, Entries, Conditions, as well as Possessions, Reversions, Remainders, and all other things of a person attainted of Treason by the Common or Statute Law of the Realm to the King, as if such Attainder had been by Act of Parliament. Then by the Statute of 5 & 6 Ed. cap. 11. 'tis Enacted, That an Offender being guilty of High Treason and lawfully convict, shall forfeit to the King all such Lands, Tenements and Hereditaments which he shall have of any Estate of Inheritance in his own Right in Use or Possession; by which Statutes, that de donis conditionalibus was taken off in Cases of Treason, as it had been before by the resolution in 12 E. 4. and by the Statute of Fines, as to the Alienation of an Estate Tail by Fine and Recovery. If therefore this Act of Pains, etc. will admit of such a construction as to make Estates Tail forfeit; here is a Crime great enough to deserve such a great punishment; a Crime for which the Parliament hath ordered an Anniversary to be kept for ever with Fasting and Humiliation to implore that the Gild of that innocent Blood then shed may not be required of our Posterity; this they esteemed as another kind of Original Sin, which unless thus expiated might extend not only ad Natos sed qui nascantur ab illis. And that this Act will admit of such a Construction these Reasons were given. 1. From the general comprehensive Words mentioning those things which are to be forfeited, viz. Messages, Lands, Tenements, Reversions and Interests, which last Word signifies the Estate in the Land as well as the Land itself, or otherwise the Word must be construed to have no effect. 2. Estates Tail are not now protected by the Clause in the Statute de donis * Inst. 334. Non habet potestatem alienandi, but are subject to the forfeiture by the Act of H. 8. which though it extends to Attainders only, yet 'tis a good Rule for the judges to make a Construction of an Act of Parliament by, especially in such a Case as this, wherein 'tis plain that the Law did look upon these Offenders, if not attainted, yet in pari gradu with such persons, and therefore may be a good Warrant to make the like Construction as in Cases of Attainder. 3. Because the Offenders are dead; for had they been living there might have been better reason to have construed this Act not to extend to Estates Tail, because than something might be forfeited, viz. an Estate for Life; and therefore the Act would signify very little if such Construction could not be made of it to reach Estates Tail of such persons who were dead at the time of the making the Law, especially since 'tis well known that when Men engage in such Crimes they give what Protection they can to their Estates, and place them as far as they can out of danger. 4. It appears by the Act that the Lawmakers did not intent that the Children of such Offenders should have any benefit of their Estates, because in the Proviso there is a saving of all Estates of Purchasers for Money bona fide paid, and therein also a particular Exception of the Wife and Children and Heirs of the Offenders; and if the Act would not protect the Estate of the Children though they should be Purchasers for a valuable consideration, it will never protect their Estate under a voluntary Conveyance made by the Ancestor, especially in this Case, because the Entail carries a suspicion with it that it was designed with a prospect to commit this Crime; for Sir John Danvers was Tenant in Tail before; and in the year 1647. levies a Fine to bar that Entail, and then limits a new Estate Tail to himself, in which there is a Provision to make Leases for any number of years upon what Lives soever, in Possession or Reversion, with Rent or without it, and this was but the year before the Crime committed. 5. The Proviso in the Act for saving the Estates of Purchasers doth protect all Conveyances and Assurances, etc. of Land not being the Lands of the late King, Queen, Prince, etc. and not being Land sold for any pretended Delinquency since the first of June, 1641. and all Statutes and Judgements suffered by the Offenders from being impeached; from which it appears that the Parliament looked upon entailed Lands as forfeited; for if Estates made to others upon a valuable consideration had need of a Proviso to save them from Forfeiture, à fortiori, the Estates out of which those are derived have need of such a saving, and therefore must be forfeit by the Act; for which Reasons these Lands are forfeited. As to the great Objection which hath been made and insisted on the other side, and which is Trudgeons Case, 22 Eliz. 1 Inst. 130. Where Tenant in Tail was attainted in a Praemunire, and it was adjudged that he should forfeit his Land but during his Life; for though the Statue of 16 R. 2. cap. cap. 5. Enacts, That in such Case their Lands, Tenements, Goods and Chattels shall be forfeited to the King; yet that must be understood of such an Estate as he may lawfully forfeit, and that is during his own life, and therefore being general Words they do not take away the force of the Statute de donis, so that his Lands in Fee-simple, for life, etc. shall be forfeited, but the Land entailed shall not, during his life. But the Answer is plain: For in the Reign of R. 2. when the Statute of Praemunire was made, Estates Tail were under a Perpetuity by the said Statute de donis, which Statute is now much weakened in the Point of Alienation; and the Law is quite altered since that time; and 'tis apparent by multitude of Precedents that such strict Constructions have not been made since that time to preserve Estates Tail from Forfeitures without special and particular Words; 4 Co. 164. and therefore in the Case of adam's and Lambert, which is a Case in Point, the judges there construed Estates Tail to be forfeit for want of special Words in the Statute of 1 E. 6. cap. 14. to save it; and that was only a Law made for suppressing of superstitious uses upon a politic consideration; but this is a much greater Offence intended to be punished by this Act, in which there are demonstrations both from the Words and intent of the Lawmakers to make this Estate forfeited to the Crown than in that Case so much relied on: And judgement was given accordingly. Wyld died before judgement was given; but justice Twisden said he was of that Opinion, and Jones justice concurred. Basset versus Salter. After an Escape the Plaintiff may have a Ca Sa. or Sci. Fa. against the Sheriff. IN an Action for an Escape; the Question was whether the Plaintiff may take out a Ca Sa. or have a Fi. Fa. against the Defendant after the Sheriff or Jailer voluntarily suffer him to escape; but the Court would not suffer it to be argued, because it had been lately settled that it was at the Election of the Plaintiff to do either; and upon a Writ of Error brought in the Exchequer-Chamber the judges there were of the same Opinion: But in the Lord Chief justice Vaughan's time the Court of Common Pleas were divided, but 'tis since settled, 1 Roll. Abridg. 901, 902. If there be an Escape by the Plaintiffs consent, though he did not intent it, the Law is hard that the Debt should be thereby discharged; as where one was in execution in the King's Bench, and some Proposals were made to the Plaintiff in behalf of the Prisoner, who seeing there was some likelihood of an Accommodation consented to a Meeting in London, and desired the Prisoner might be there, who came accordingly, and this was held to be an Escape with the * If it had been by the consent of the Sheriff, he could never take him again, but the Plaintiff might. Sid. 330. consent of the Plaintiff, and he could never after be in Execution at his Suit for the same Matter. Perk versus Hill. In Communi Banco. Bond good given in discharge of another Mod. Rep. 221. DEBT upon a Bond brought against the Defendant as Administrator, who pleads that he gave another Bond in his own Name in discharge of the first Bond; and upon Issue joined it was found for the Defendant; and it was moved that judgement might not be entered hereupon, because it was a bad Plea. But North Chief justice, and Wyndham and Scroggs justices, were of Opinion that it was a good Plea, because there was other Security given than what the Plaintiff had before; for upon the first Bond he was only liable de bonis Intestatoris, but now he might be charged in his own Right, Co. Lit. 122. b. which may be well said to be in full satisfaction of the first Obligation; for where the Condition is for payment of Money to the Party himself, there if he accept any collateral thing in satisfaction, 'tis good. If a Security be given by a Stranger, it may discharge a former Bond, and this in effect is given by such: And 'tis not like the Case in Hobert, where a Bond was given by the same Party upon that very day a former Bond was payable, and adjudged not a good discharge; for the Obligee was in no better condition than he was before. justice Atkins doubted, but inclined that one Bond cannot be discharged by giving another, though the Discharge be applied to the Condition of the Bond; and for this he cited, Cro. Car. 85. Cro. Eliz. 716, 727. which was a Case adjudged so in Point; and therefore this Plea upon Demurrer should have been overruled; yet since Issue was taken upon it, and a Verdict for the Defendant the Plea is helped by the Statute of Jeofails, 32 H. 8. here being a direct Affirmative and Negative. But as to that, the Chief justice and Scroggs justice replied, that an immaterial Issue no ways arising from the Matter is not helped; as an Action of Debt upon a Bond laid to be made in London, and the Defendant saith that it was made in Middlesex, and this is tried, 'tis not aided by the Statute but there must be a Repleader. But because it was sworn that the Obligor (who was the intestate) was alive four years after the time that the second Bond was given, and for that reason it could not be given upon the account of the Defendants being liable as Administrator, but must be intended a Bond to secure a Debt of his own, therefore a new Trial was granted Cook and others versus Herle. Covenant will lie in the personalty tho' the Grant be executed by the Statute of Uses, which makes a Distress the proper remedy. Mod. Rep. 223. IN Covenant; the Case was this: Charles Cook made a jointure to Mary his Wife for life, and died without Issue; the Land descended to Thomas Cook his Brother and Heir, who grants an Annuity or Rent Charge of 200 l. per annum to the Plaintiffs in Trust for Mary, and this was to be in discharge of the said jointure, Habendum to them, their Heirs, Executors, Administrators and Assigns in Trust for the said Mary for Life, with a Clause of Distress and a Covenant to pay the 200 l. per annum to the said trusties for the use of the said Mary; the Breach assigned was that the Defendant had not paid the Rent to them for the Use of Mary. The Defendant demurred specially for that it appears by the Plaintiffs own showing that here is a Grant of a Rent-Charge for life, which is executed by the Statute of uses, and therefore there ought to have been a Distress for Nonpayment, which is the proper remedy given by the Statute, and this Action will not lie in the personalty. 2. 'Tis said the Defendant did not pay it to the Plaintiffs for the use of Mary, which is a Negative pregnant and implies that it was paid to them. 3. 'Tis not averred that the Money was not paid to Mary, and if 'tis paid to her, than the Breach is not well assigned. Ex parte Quer. But Sergeant Baldwin for the Plaintiff replied, that it was not a Question in this Case whether this Rend Charge was executed by the Statute or not, for quacunque via data an Action of Covenant will lie; and that the Breach was assigned according to the Words of the Covenant, and so prima fancy 'tis well enough; for if the Defendant did pay the Money to the Plaintiffs he may plead it, and so he may likewise if he paid it to Mary. Curia. The Court were all of Opinion that this Rent-Charge was executed by the Statute of uses by the express Words thereof, which executes such Rents granted for Life upon Trust, as this Case is, and transfers all Rights and Remedies incident thereunto together with the possession to Cestuy que use; so that though the power of distraining be limited to the Trustées by this Deéd, yet by the Statute which transfers that power to Mary, she may distrain also; but this Covenant being collateral cannot be transferred. The Clause of Distress by the express Words of the Act is given to the Cestuy que use; but here is a double Remedy, by Distress or Action; for if the Lessée assign his Interest, and the Rent is accepted of the Assignee, yet a Covenant lies against the Lessée for Nonpayment upon the express Covenant to * Hays and Bickerstaff. Hollis and Carr, Antea. pay; so if a Rent be granted to S. and a Covenant to pay it to N. for his use, 'tis a good Covenant. And it was agreed, that the assignment of a Breach according to the Words of the Covenant is good enough, and that if any thing be done which amounts to a performance, the other side must plead it; as in this Case the Defendant might have pleaded that the Money was paid to Mary, which is a performance in substance, but it shall not be intended without pleading of it; Whereupon judgement was given for the Plaintiff. Read versus Dawson. DEBT upon Bond against the Defendant as Executor: Repleader after an immaterial Issue. Issue was joined whether the Defendant had Assets or not on the thirtieth day of November, which was the day on which he had the first notice of the Plaintiffs original Writ, and it was found for the Defendant, that then he had not Assets. It was moved for a Repleader, (because it was said) this was an immaterial Issue, for though he had not Assets then yet if he had any afterwards he is liable to the Plaintiffs Action. But Barrel Serjeant moved for judgement upon this Verdict, by reason of the Statute of 32 H. 8. which helps in Cases of Mispleading or insufficient Pleading. 'Tis true, there are many Cases which after Verdict are not aided by this Statute, as if there are two Affirmatives, which cannot make an Issue, or when after a Traverse Issue is joined with an hoc petit quod inquiratur per patriam; this is no Issue, 2 Anders. 6, & 7. Yelv. 210. Hob. 126. So if there be no Plea at all, as if an Action is brought against Baron and Feme, and she pleads only, 2 Cro. 288. So if the Party puts himself super patriam, where it should be tried by Record, or if the Plea be nothing to the purpose, or lie not in the Mouth of the Parties, such immaterial Issues as these cannot be good. The difference in Moor 867. is, if the Plea on which the Issue is joined, hath no colourable pretence in it to bar the Plaintiff, or if it be against an express Rule in the Law, there the Issue is immaterial, and so as if there was no Issue; and therefore 'tis not aided by the Statute; but if it hath the countenance of a legal Plea, though it want necessary matter to make it sufficient, there shall be no Repleader, because 'tis helped after Verdict. Here the Parties only doubt whether there were Assets at the time of the notice, and 'tis found there were none, and so judgement was to be given accordingly; and of that Opinion was the whole Court. But justice Atkins was clear of Opinion, that if the Parties join in an immaterial Issue there shall be no Repleader, because 'tis helped after Verdict by these Words in the Statute, viz. (any Issue;) 'Tis not said an Issue joined upon a material Point; and the intent of the Statute was to prevent Repleaders; and that if any other Construction should be made of that Act he was of Opinion that the judges sat there not to expound but to make a Law; for by such an Interpretation much of the benefit intended by the Act to the Party, who had a Verdict, would be restrained. Curia. The other justices were all of Opinion that since the making of this Statute it had been always allowed, and taken as a difference, that when the Issue was perfectly material there should be no Repleader; but that it was otherwise where the Issue was not material. And justice Scroggs asked merrily, If Debt be brought upon a Bond and the Defendant pleads Robin Hood dwelled in a Wood, and the Plaintiff joins Issue that he did not, this is an immaterial Issue, and shall there not be a Repleader in such Case after Verdict? Ad quod non fuit responsum. Beaumond versus ........ Wager of Law. THE Plaintiff brings an Action of Debt upon a judgement obtained against the Defendant in a Court Baron, having declared there in an Action on the Case upon an Assumpsit, and recovered. The Defendant came to wage his Law, and was ready to swear that he owed the Plaintiff nothing; Sid. 366. but the Court held that he was not well advised, for by the Recovery in the inferior Court it became now a Debt, and was owing; and being asked whether he had paid the Money; he answered that he owed nothing: Whereupon the Court concluded that he had not paid it, and therefore they would not admit him to wage his Law without bringing sufficient Compurgators to swear that they believed he swore Truth; but such not appearing, the Defendant defecit de Lege, and judgement had been given against him, but he offered to bring the Money recovered and the Costs into the Court, and to go to a new Trial, it being a very hard Case upon him at the former Trial, where the Demand was of a Quitrent of 18 d. per annum; the Defendant promised, that if the Plaintiff would show his Title and satisfy him that he had a Right to demand it, he would pay him the Rent; and at the Trial express Oath was made of a Promise to pay, upon which the Verdict was obtained; whereas it was then urged that the Freehold would come in question upon that Promise, and so the inferior Court could have no jurisdiction. And afterwards the Chief justice said, that it hath been adjudged in the King's Bench that an inferior Court cannot hold Plea on a quantum meruit for Work done out of the jurisdiction though the Promise be made within; and that he knew where a Person of Quality intending a Marriage with a Lady, presented her with a jewel, and the Marriage not taking effect, he brought an Action of Detinue against her, and she taking it to be a Gift offered to wage her Law; but the Court was of Opinion that the property was not changed by this Gift, being to a specifical intent, and therefore would not admit her to do it. Quod nota. Styleman versus Patrick. AN Action on the Case was brought by the Plaintiff against the Defendant, for eating of his Grass with his Sheep, Costs allowed. so that he could not in tam amplo modo enjoy his Common, there was a Verdict for the Plaintiff, and it was now moved, that he should have no more Costs than Damages, because this was a Trespass in its own nature, and the judge of Assize had not certified that the Title of any Land was in question. By'r the Court were all of Opinion, Curia. that this Case was not within the Statute. For it was not a frivolous Action, because a little damage done to one Commoner and so to twenty may in the whole make it a great Wrong; if the Cause were frivolous the judge of Assize may mark it to be such by virtue of the Statute of 43 Eliz. cap. 6. and then there shall be no more Costs than Damages; and though in this Case the Plaintiff hath in his Declaration set out a Title to his Common, yet the Title of the Land cannot possibly come in question, and therefore not to be certified as in Cases of Trespass; neither is there any need of a Certificate if it appears by the Pleading that the Title of the Land is in question. The Court being against the Defendant as to the Costs; his Council then moved in Arrest of judgement, because the Plaintiff sets forth his Right to the Common only by way of Recital with a cumque etiam, Postea. etc. that he had a Right to Common in such a place, sed non allocatur; for 'tis affirmative enough, and afterwards he is charged with doing the Plaintiff damage; and so the Case is not like to an Action of Trespass quare cum he did a Trespass, for there the sense is imperfect. DE Term. Sancti Hill. Anno 28 & 29 Car. II. in Communi Banco. James versus Johnson. IN Trespass, Que Estate, where 'tis pleadable. Mod Rep. 231. the Defendant justified by a Prescription to have Toll, and Issue being joined thereupon, the jury found a special Verdict, in which the Case upon the Plead was, viz. Before the dissolution of Priories, the Manor now in the possession of the Defendant, was parcel of the Priory of B. which came to the Crown by the said dissolution; and the King made a Grant thereof to Sir Jervas' Clifton, in Fee, together with the said Toll adeo plene as the Prior had it; and the Defendant having brought down a Title by several mesne Assignments, claims by virtue of a Lease from Sir Jervas', for seven years then in being, alleging that the said Sir Jervas' and all those whose Estate he had might take Toll; and whether this Pleading by a Que Estate to have Right of Toll was good in Law, the jury doubted. Baldwin Sergeant for the Plaintiff, Ex parte Quer. argued that the justification was not good, because there are two sorts of Toll, viz. Toll through and Toll traverse, and is in the King's High Way, and the other in a Mans own Soil, and it doth not appear for which the Defendant hath justified. If it be for the first, than he ought to show that he did make a Causeway, or some other thing that might be an advantage to the Passengers, to entitle himself to a Prescription; but if it be for the other, than he must also show it was for passing upon his Soil, which implies a Consideration, 22 Assize, Kelw. 148. Pl. Com. 236. Lord Berkley's Case. 1 Cro. 710. Smith versus Sheppard; by which Cases it appears that the justification ought to be certain. Then as to the point in Question, he said, that Toll cannot be appurtenant to a Manor, and so the Pleading by a Que estate is not good; but if that should be admitted, yet the Manor being vested in the Crown by the dissolution, the Toll then became in gross, and could never after be united to the Manor, or appurtenant thereunto. But it was argued for the Defendant by Maynard Sergeant, and the whole Court were clear of Opinion, that the Issue was upon a particular point, and the Title was admitted, and that nothing remained in question but the Point in pleading. And as to what had been objected, That Toll cannot belong to a Manor, 'tis quite otherwise; for an Advowson, a Rent, a Toll, or any Profit apprender may be appurtenant to it. 'tis true a Man cannot prescribe by a Que Estate of a Rent, Advowson, Toll, etc. but he may of a Manor, to which these are appendent; 'tis likewise true, that if the Defendant had said this was Toll for passing the Highway, he must show some cause to entitle himself to the taking of it, as by doing something of public advantage. But this general way of pleading is the most usual, and so are the Precedents, and it ought to come on the other side, and to be alleged, that the Defendant prescribed for Toll in the Highway; and in this Case, though the Manor came to the Crown, the Toll remained appurtenant still, and so it continued when it was granted out. The difference is between a thing which was originally a Flower of the Crown, and other things which are not, as Catalla Felonum, etc. if such come again to the King, they are merged in the Crown; but 'tis otherwise in cases of a Leet, Park, Warren, Toll, etc. which were first created by the King, 9 Co. Abbot de Strata Marcella's Case. So that this Toll is not become in gross by the dissolution, whereupon judgement was given for the Defendant. Sir William Turner's Case. Amendment not after issue joined. DEbt qui tam etc. for 100 l. against Sir William Turner, being a justice of Peace in London, for denying his Warrant to suppress a seditious Conventicle of one Mr. Turner in New-street. This Cause was to be tried by Nisi prius this Term, before the Chief justice. And now the Plaintiff moved to amend one Word in the Declaration, wherein he was mistaken, for he had laid the Meeting to be at Turner's Mansion House, and upon Enquiry he understood the place of Meeting was not at his Mansion House, but at a little distance from it, and so prayed the word Mansion might be struck out. But the Chief justice said, that after Issue joined, Curia. and the Cause set down to be tried, and this being a penal Statute, no Precedent could be shown of an Amendment in such case, and therefore would not make this the first, and so Leave was given to the Plaintiff to discontinue upon payment of Costs. Brown versus Johnson. IN Account: The Plaintiff declares against the Defendant, Time where 'tis made parcel of the issue not good. for that upon the first of March 22 Car. 2. & abinde to the first of May 27 Car. 2. he was his Bailiff, and Receiver of 80 Pigs of Lead. The Defendant pleads, that from the said first day of March 22 Car. 2. to the first day of May 27 Car. 2. he was not the Plaintiffs Bailiff or Receiver of the said 80 Pigs of Lead, & hoc paratus est verificare. To this the Plaintiff demurred, and assigned specially for cause, that the times from the first of March to the first of May, are made parcel of the Issue, which ought not to be, because the Plaintiff in his Declaration must allege a time for Form sake, but the Defendant ought not to tie him up to such time alleged, for he might have said he was not Bailiff modo & forma. And for this the Case of Lane and Alexander was cited, where the Defendant by Ejectment makes a Title by Copy of Court Roll, granted to him 44 Eliz. and the Plaintiff replies his Title by the like Grant, 1 Junii 43 Eliz. The Defendant maintains his Bar, and traverseth that the Queen 1 Junii 43 year of her Reign granted the said Land by Copy; and upon Demurrer it was adjudged, that the traversing of the day is matter of substance, which being made part of the Issue, is naught. But on the other side it was objected, that time is material, and that in Actions of Account 'tis proper to make it parcel of the Issue; for a Man may be Bailiff for two, but not for three years, and a Release may be pleaded from such a time to such a time, Fitz. Account 30. Rast. Entry f. 8. 19 pl. 1. f. 20. pl. 6. f. 22. pl. 2. 1. Then Exceptions were taken to the Plea, first, for that the Plaintiff having charged the Defendant as Receiver of 80 Pigs of Lead; the Defendant pleads, and that he was not Receiver thereof, but doth not say of any part thereof; for which reason the Court held the Plea ill, because he might retain 79, and yet not 80 Pigs, but to plead generally ne unques Receptor is well enough; though it was urged that if it had been found against him upon such an Issue that he had received any parcel of the Lead, he should have accounted, 24 H. 4. 21. 2 Roll. 3. 14. 32 H. 6. 33. Fitz. Account 16. Cro. Eliz. 850. Fitz. Account 14. Rast. Entry 18, 19, 20. 2. The Defendant concludes & hoc paratus est verificare, whereas it should be & de hoc ponit se super patriam; but the Court doubted of this, because it was not specially assigned. Postea. 3. The Plaintiff charged the Defendant as his Bailiff upon the first of March, and the Defendant pleads that he was not his Bailiff from the first of March, so he excludes that day; and this the Court held to be incurable, and likewise that the time ought not to be made parcel of the Issue, 2 Sand. 317, 318. and so judgement was given quod computer. Abraham versus Cunningham. Administrator sells a Term, afterwards an Executor appears and renounces, yet the Sale was adjudged void. Jones 72. 1 Vent. 303. IN a special Verdict in Ejectment, the Case upon the Plead was, Viz. Sir David Cunningham being possessed of a Term for years, made his Will, and therein appointed his Son Sir David Cunningham to be his Executor, and died. Sir David the Executor, in the year 1663. made his Will also, and therein appointed David Cunningham his Son, and two others to be his Executors, and died; those two Executors die, and B. a Stranger takes out Administration, cum Testamento annexo, and continues this Administration from the year 1665. to the year 1671. in which time he made an Assignment of this Term to the Lessor of the Plaintiff, for which he had received a thousand Pounds: And in the year 1671. the surviving Executor of Sir David the Executor, made Oath in the Archbishop's Court, that he never heard of his Testators Will till then, nor ever saw it before, and that he had not meddled with the Estate, nor renounced the Executorship: 6 Co. Packmans' Case. Then a Citation goes to show cause why the Administration should not be repealed, and Sentence was given that it should be revoked; upon which the Executor enters, and the Lessor of the Plaintiff entered upon him. This Case was argued by Saunders for the Plaintiff, Ex parte Quer. and Levints for the Defendant. And first it was said in behalf of the Plaintiff, that the Authorities in the Books were strong on his side, that the first Administration was well granted; 'Tis true, if a Man make a Will, and Administration is granted, and that Will is afterwards proved, such Administration is void, as in Greysbrook and Fox's Case, Pl. Com. But in this Case, after the death of Sir David Cunningham the Executor, his Testator is dead Intestate; for to make an Executor there must be first the naming of him; then there must be some concurring act of his own to declare his assent, that he will take onus executionis upon him, for no man can make another Executor against his will; so that if after the death of the first Executor, those other Executors appointed by him, had made such a Declaration, as this surviving Executor hath since done, their Testator had died Intestate, 7 E. 4. 12, 13. The Executor is made by the Testator, and the Ordinary is empowered by the Statute to make the Administrator where the person dies Intestate; so that 'tis plain there cannot be an Executor and Administrator both together: If he who is made so taketh upon him long after the Will to be Executor, it shall make him such by relation from the time of the death of the Testator; but here is no Executor nor ever was: 'Tis true, that one was named, but as soon as he heard of the Will he renounced; and therefore there being no Executor in this Case, nothing now can hinder the Administration to be granted cum Testamento annexo. If the Testator should die indebted, or have Debts owing to him, and the Executor refuses Probate, and renounces his Executorship, Administration must be granted, for Lex fingit ubi subsistit Aequitas, and the Executor having a possibility to be such, and by his refusal becoming no Executor, why should the bare naming of him to be an Executor, have relation to make such Administration void? since 'tis not the Name, but the doing of the Office which makes him Executor, Dyer 372. If all these Executors had died after Administration thus committed, it cannot be said that they ever were Executors. There can be no inconvenience that this Administration should be good; for 'tis just that Creditors should have their Debts, and Purchasers should be secure in the things purchased. If the Testator was indebted, an Action will lie against an Executor de son tort, for such Debt, which Executor is altogether as wrongful as the Administrator, to whom Administraton is committed, and the Will afterwards proved by the rightful Executor; and if such Executor of his own wrong be possessed of a term for years, and a Creditor recovers against him, that Crecutor shall have the Term in satisfaction of his Debt; and by the same reason shall the Administrator here have a good title to this Term which he sold for the payment of a just Debt, and there is no authority for making such Administration void, unless it be where the Executor proves the Will, but never when he renounceth. Ex parte Def. But on the other side it was said, that an Executor of an Executor hath all the Interest which the first Executor had; so that being an Executor, the Administration ganted by the Ordinary is void, and the renunciation afterwards shall never make it good; and this will appear by the different Interests which the Ordinary and the Executor have by Law. 1. The Ordinary originally had nothing to do with the Estate of the Intestate, for * Godolph. 59 bona intestati capi solent in manus Regis. Afterwards two Statutes were made, which establish his power; the first was Westm. 1. cap. 19 and the other was 31 E. 3. c. 11. Yet no power was thereby given him to dispose of the Goods to his own use, or to the use of any other; he had only a property secundum quid, and not an absolute and uncontrollable Right in the Estate. 2. But the Executor hath a Right and Interest given to him by Law, when a Will is made, and may * 5 Co. Middleton's Case. release before probate; if he therefore hath an absolute Right, and the Ordinary hath only a qualified property, how can he grant the Administration of the Goods, which at the same time are lawfully vested in another? Suppose the Executor sells such Goods to one Man, and the Administrator to another, 2 Anders. 150. Case. 83. the Sale of one of them must be void; and for the said Reasons, and by the constant course of the Law it must be the latter. It hath been objected, that here was no Executor at all, only one named; or if it be admitted that there was an Executor, yet his refusal shall relate to the time of the Administration committed, and make that good which might not be so before. But as to that, he said that here was an Executor appointed by the Will, who had an Interest, and Administration being granted to another, 'tis void ab initio, and what is once void cannot be made good by any subsequent act, Mod. Rep. 214. 10 Co. 62. a. Here was a want of power in him who did this Act; for the Ordinary could not grant Administration where there is an Executor, and therefore no relation shall be to make that good which was once void; but if it had been only voidable it might have been otherwise. A Relation may be to enable the Party to recover the Goods of the Intestate, and to punish Trespasses; as if a Man die possessed of Goods, and a Stranger convert them, and afterwards Administration is granted to S. this Administration shall * 2 Roll Abr. 399. relate to the time of the death of the Intestate, so that he may maintain Trover, before the Ordinary had committed it to him, but it will never aid the Acts of the Parties to avoid them by Relation; as if a Man makes a Feoffment to a Feme Covert, and afterwards devices the same Land, the Husband disagrées, this shall have relation between the Parties, so as the Husband shall not be charged in damages, but it shall not make the void Devise good, 3 Co. 28. b. Butler and Baker's Case. So if a Man makes a Release, and afterwards get Letters of Administration, that shall not relate to make his Release good to bar him, neither shall his refusal of the Executorship do it, because at the time of the Release or the refusal there was not any right of Action in him; for that commences in the one Case after Administration, and in the other after the Probate of the Will. Notwithstanding such refusal this Executor may afterwards administer at his pleasure, Godolph. 141. and intermeddle with the Goods of the Testator, and if the Administration should be good also, than they would have a power over the same Estate by two Titles at the same time, which cannot be. The greatest Argument which can be brought against this is ab inconvenienti, because it cannot be safe to purchase under an Administrator, since a Will may be concealed for a time, and afterwards the lawful Executor therein appointed may appear; but this is more proper for the Wisdom of a Parliament to redress than that the Law should be altered by a judicial determination of the Court, and therefore he prayed judgement for the Defendant. The Court was of Opinion that the Ordinary cannot grant Administration where there is an Executor named in the Will, Judgement. and therefore gave judgement for the Defendant against the Vendée of this Term. The Lord Townsend versus Dr. Hughes. In C. B. THE Plaintiff brought an Action of Scandalum Magnatum for these Words spoken of him by the Defendant, No new Trial in an Action of Scandalum Magnatum. Mod. Rep. 232. viz. He is an unworthy Man and acts against Law and Reason: Upon Not Guilty pleaded, the Case was tried, and the jury gave the Plaintiff 4000 l. damages. The Defendant before the Trial made all possible submission to my Lord; he denied the speaking the Words, and made Oath that he never spoke the same; after the Trial he likewise addressed to my Lord as before, making several Protestations of his Innocency: But having once in a Passion said, that he scorned to submit; My Lord for that Reason would not remit the Damages; it was therefore moved for a new Trial upon these Reasons. 1. Because the Witnesses, who proved the Words, were not Persons of Credit, and that at the time, when they were alleged to be spoken, many Clergymen were in Company with the Defendant and heard no such Words spoken. 2. It was sworn, that one of the jury confessed, that they gave such great damages to the Plaintiff (not that he was damnified so much) but that he might have the greater opportunity to show himself noble in the remitting of them. 3. And which was the principal Reason, because the Damages were excessive. Curia. The Court delivered their Opinions seriatim; and first, The Chief justice North said, In Cases of Fines for criminal Matters a Man is to be fined by Magna Charta with a salvo contenemento suo; and no Fine is to be imposed greater than he is able to pay; but in Civil Actions the Plaintiff is to recover by way of compensation for the damages he hath sustained, and the jury are the proper judges thereof. This is a Civil Action brought by the Plaintiff for Words spoken of him, which if they are in their own nature actionable, the jury ought to consider the damage which the Party may sustain; but if a particular Averment of special damages makes them actionable, than the jury are only to consider such damages as are already sustained, and not such as may happen in futuro, because for such the Plaintiff may have a new Action: He said that as a judge he could not tell what value to set upon the Honour of the Plaintiff, the jury have given 4000 l. and therefore he could neither lessen the Sum or grant a new Trial, especially since by the Law the jury are judges of the damages; and it would be very inconvenient to examine upon what account they gave their Verdict; they having found the Defendant guilty did believe the Witnesses, and he could not now make a doubt of their Credibility. Wyndham justice accorded in omnibus. Atkins justice contra. That a new Trial should be granted, for 'tis every day's practice, and he remembered the Case of Gouldston and Wood in the King's Bench, where the Plaintiff in an Action on the Case for Words for calling of him Bankrupt recovered 1500 l. and that Court granted a new Trial, because the damages were excessive. The jury in this Case ought to have respect only to the damage which the Plaintiff sustained, and not to do an unaccountable thing that he might have an opportunity to show himself generous; and as the Court ought with one Eye to look upon the Verdict, so with the other they ought to take notice what is contained in the Declaration, and then to consider whether the Words and Damages bear any proportion, if not, than the Court ought to lay their hands upon the Verdict: 'Tis true they cannot lessen the damages, but if they are too great the Court may grant a new Trial. Scroggs justice accorded with North and Wyndham, that no new Trial can be granted in this Cause: He said that he was of Council with the Plaintiff before he was called to the Bench, and might therefore be supposed to give judgement in favour of his former Client, being prepossessed in the Cause, or else (to show himself more signally just) might without considering the matter give judgement against him; but that now he had forgot all former relation thereunto, and therefore delivered his Opinion, that if he had been of the jury he should not have given such a Verdict, and if he had been Plaintiff he would not take advantage of it, but would overcome with Forgiveness such Follies and Indiscretions of which the Defendant had been guilty; but that he did not sit there to give Advice, but to do justice to the People. He did agrèe that where an unequal Trial was, (as such must be where there is any Practice with the jury) in such Case 'tis good reason to grant a new Trial, but no such thing appearing to him in this Case a new Trial could not be granted. Suppose the jury had given a scandalous Verdict for the Plaintiff, as a Penny Damages, he could not have obtained a new Trial in hopes to increase them, neither shall the Defendant in hopes to lessen them; and therefore by the Opinion of these three justices a new Trial was not granted. Afterwards in this Term Serjeant Maynard moved in Arrest of judgement, and said, that this Action was grounded upon the Statute of R. 2. Which consists of a Preamble, reciting the Mischief, and of the Enacting part in giving of a Remedy, and that the Defendants Case was neither within the Mischief or the Remedy. This Statute doth not create any Action by way of particular design, and if the matter was now Res integra much might be said that an Action for Damages will not lie upon this Statute; for the Statute of Westm. 2. appoints that the Offender shall suffer imprisonment, until he produces the Author of a false Report; Ca 33. and the Statute of 2 R. 2. which recites that of Westm. 2. gives the same punishment, and the Action is brought qui tam, etc. and yet the Plaintiff only recovers for himself: It was usual to punish Offenders in this kind in the Star Chamber; as in the * Earl of Northampton's Case, where one Goodrick said of him, That he wrote a Book against Garnet, and a Letter to Bellarmine; 12 Co. 132. intimating, that what he wrote in the Book was not his Opinion, but only ad captandum populum, which was a great disgrace to him in those days, being as much as to say, he was a Papist, Cro. Eliz. But the Sergeant would not insist upon that now, since it hath been ruled that where a Statute prohibits the doing of a thing which if done might be prejudicial to another; in such case he may have an Action upon that very Statute for his Damages. But the ground on which he argued was, that these words as spoken are not within the meaning of the Act, for they are not actionable. 1. Because they are no scandal, and words which are actionable must import a great Scandal, which no circumstance or occasion of speaking can excuse; and if they are scandalous and capable of any mitigation by the precedent discourse, the pleading of that matter will make them not actionable; and for this the Lord * 4 Co. Cromwel's Case is a plain Authority, the Words spoken of him were, You like those that maintain Sedition against the King's Person; the occasion of speaking of which was to give an account of his favouring the Puritan Preachers, which was all that was intended by the former discourse; for that Lord had approved a Sermon which was preached by a Parson against the Common Prayer Book, and the Defendant having forbid such Preaching, the Lord told him that he did not like him, upon which he spoke those Words; so that the subject matter explained the sense, for which reason it was adjudged that the Action would not lie. 2. The scandal for which an Action may be brought within this Statute must be false, for that word goes quite through the whole Act, viz. false News, false Lies, etc. and the words here are so general, that it cannot appear whether they are true or false, for there can be no justification here; as in case where a Man is charged with a particular Crime, my Lord Townsend is not charged with any particular Act of Injustice as a Subject, nor with any Misdemeanour as a Peer, nor with any Offence in an Office. If therefore in all Actions brought upon this Statute the Defendant may justify and put the matter in Issue to try whether it be true or false; and in this Case the Defendant can neither justify nor traverse, for this reason the Action will not lie. That the Words are general and of a doubtful signification, it cannot be denied; for to say He is an unworthy Man imports no particular Crime; Unworthy is a term of Relation, as he is unworthy of my Friendship, Acquaintance or Kindred, and so may be applicable to any thing; and a Lord may in many things be unworthy of a particular Man's Friendship, as if he promises to pay a Sum of Money at a day certain, and faileth in the payment, (as 'tis often seéns,) such is an unworthy Man, but that will not bear an Action: He is an unworthy Man who invites another to Dinner to affront him; but it will not bear an Action to say, That a Lord invited me to a Dinner to abuse me; neither will it be actionable to say, He is an unworthy Man, because such instances may be given of his unworthiness which will not bear an Action. If my Lord had been compared to any base and unworthy thing, these Words might have been actionable; and that was the Case of the Lord Marquis of Dorchester, it being said of him, That there was no more value in him than in a Dog. Then to say, A Man acts against Law, this is no Scandal, because every Man who breaks a Penal Law, and suffers the Penalty, is not guilty of any Crime. The Statute commands the burying in Woollen, the Party buries one of his Family in Linen; in this he acts against the Law, but if the Penalty is satisfied, the Law is so likewise. A Man who acts against Law acts against Reason, because Lex est summa ratio; but no instance is here given wherein he did thus act: 'Tis not said, that he did act against Law wilfully, or that he used to do any thing against Law; and so cannot be like the Case of the Duke of Buckingham, who brought an Action for these Words, viz. You are used to do things against Law, and put Cattle into a Castle where they cannot be replevied; for there was not only an Usage charged upon him, but a particular instance of Oppression. This Action lies for Words spoken of a judge of either Bench, and of a Bishop, as well as of a Peer. Now if a Man should say, A Judge acted against Law, will an Action lie? Because a judge may do a thing against Law, and yet very justly and honestly, unless all the judges were infallible, and could not be subject to any mistakes, which none will deny. So if a Bishop return the Cause of his Refusal to admit a Clerk quia criminosus, this is a Return against Law, because 'tis too general; but if J. S. should say, A Bishop acted against Law, and show that for Cause, an Action would not lie. If the the Lord Townsend had commanded his Bailiff to make a Distress without Cause, that had been acting against Law and Reason. He agreed the Words to be uncivil, but not actionable; for if such Construction should be made, a Man must talk in Print, or otherwise not speak any thing of a Peer for fear of an Action. There are many Authorities where a Péer shall not have an Action for every trivial and slight Expression spoken of him. As to say of a Péer, He keeps none but Rogues and Rascals about him like himself; by the Opinion of two justices, Yeluerton and Fleming, the Action would not lie, because they are Words of Scolding; and this was the Case of the Earl of Lincoln, Cro. Jac. 196. But the Court was divided; the Defendant died, and so the Writ abated. Actions for Words have been of late too much extended; formerly there were not above two or three brought in many years; and if this Statute should be much enlarged the Lords themselves will be prejudiced thereby by maintaining Actions one against another. Upon this Statute of 2 R. 2 c. 5 there was no Action brought till 13 H. 7. which was above an hundred years after the making of that Law; and the occasion of making the Law was, because the Duke of Lancaster, who was then the first Prince of the Blood, took notice that divers were so hardy as to speak of him several lying Words, 1 R. 2. num. 56. and therefore this Statute was made to punish those, who devised false News, and horrible and false Lies of any Peer, etc. whereby Discords might arise between the Lords and Commons, and great Peril and Mischief to the Realm and quick Subversion thereof: Now from the natural intent and construction of these Words in the Act, can it be supposed that if one should say, Such a Peer is an unworthy Man, that the Kingdom would be presently in a flame and turned into a state of confusion and Civil War; and to say, That he acts against Law, that the Government would thereby be in danger to be lost, and quick Subversion would follow? This cannot be the common and ordinary understanding of these Words. If therefore the Plaintiff by speaking these Words was in no hazard nor any wise damnified; if he was not touched in his Loyalty as a Péer, nor in danger of his Life as a Subject; if he was not thereby subjected to any Corporal or Pecuniary Punishment; nor charged with any Breach of Oath, nor with a particular Miscarriage in any Office; if the Words are so general that they import no Scandal, and are neither capable of any justification; and lastly, if they are not such horrible Lies as are intended to be punished by the Statute; for these Reasons he concluded the Action would not lie, and therefore prayed, that the judgement might be arrested. Sergeant Baldwin and Serjeant Barrel argued on the same side for the Defendant, but nothing was mentioned by them which is not fully insisted on in the Argument of Sergeant Maynard, for which Reason I have not reported their Arguments. But Pemberton Serjeant, who argued for the Plaintiff, said, Ex parte Quer. that it would conduce much to the understanding of the Statute of 2 R. 2. cap. 5. upon which this Action of Scandalum Magnatum was grounded, to consider the occasion of the making of it. In those days the English were quite of another Nature and Genius from what they are at this time; the Constitution of this Kingdom was then Martial and given to Arms, the very Tenors were Military, and so were the Services as Knight's Service, Castleguard and Escuage. There were many Castles of defence in those days in the hands of private Men; their Sports and Pastimes were such as Tilts and Tournaments, and all their Employments were tending to breed them up in Chivalry. Those who had any dependency upon Noble Men were enured to Bows and Arrows, and to signalise themselves in Valour it was the only way to Riches and Honour; Arts and Sciences had not got such ground in the Kingdom as now; but the Commons had almost their dependence upon the Lords, whose Power then was exceéding great, and their Practices were conformable to their Power; and this is the true Reason why so few Actions were formerly brought for Scandals, because when a Man was injured by Words he carved out his own Remedy by his Sword. There are many Statutes made against riding privately armed, which Men used in those days, to repair themselves of any Injury done unto them, for they had immediately recourse to their Arms for that purpose, and seldom or never used to bring any Actions for damages. This was their Revenge; and having thus made themselves judges in their own Cases, it was reasonable that they should do themselves justice with their own Weapons; but this Revenge did not usually end in private Quarrels, they took Parties, engaged their Friends, their Tenants and Servants on their sides, and by such means made great Factions in the Commonwealth, by reason whereof the whole Kingdom was often in a flame, and the Government as often in danger of being subverted; so that Laws were then made against wearing Liveries or Badges, and against riding armed. This was the mischief of those times; to prevent which this Statute of R. 2. was made, and therefore all provoking and vilifying Words, which were used before to exasperate the Peers and to make them betake themselves to Arms, by the intent of this Act are clearly forbidden, which was made chief to prevent such consequences; for it was to no purpose to make a Law and thereby to give a Péer an Action for such Words as a common person might have before the making of the Statute; and for which the Peer himself had a Remedy also at the Common Law, and therefore needed not the help of this Act. If then the design of this Statute was to hinder such practices as aforesaid, the next thing to be considered is what was usual in those days to raise the Passions of Peers to that degreé, and that will appear to be not only such things as imported a great Scandal in themselves, or such for which an Action lay at the Common Law, but even such things as savoured of any Contempt of their persons; and such as brought them into disgrace with the Commons, for hereby they took occasion of Provocation and Revenge. 'Tis true that very few Actions were brought upon this Statute in some considerable time after it was made, for though such practices were thereby prohibited, the Lords did not presently apply themselves to the Remedy therein given, but continued the Military way of Revenge to which they had been accustomed. As to the first Objection that hath been made, he gave no answer to it, because it was not much insisted upon on the other side, whether an Action would lie upon this Statute, for the very words of it are sufficient ground for an Action; and 'tis very well known that wherever an Act prohibits an evil thing, Maxim. the person against whom such thing is done, may maintain an Action. This Statute consists of two parts, the first is prohibitory, Vide Ante. Viz. That no Man shall do so, etc. Then comes the additional Clause, and saith That if he do he shall incur such Penalty. 'Tis on the first part that this Action is grounded; and so it was in the Earl of Northampton's Case, in that Report which goes under the name of the Lord Coke's 12th. Report, where by the Resolution of all the judges in England, except Fleming who was absent; it was adjudged that it was not necessary that any particular Crime should be fixed on the Plaintiff, or any Offence for which he might be indicted. So are the Authorities in all the Cases relating to this Action. In the Lord * 4 Co. 13. b. 2 Cro. 196. Cromwel's Case for these Words, You like those who maintain Sedition. In the Lord of Lincoln's Case, My Lord is a base Earl, and a paltry Lord, and keepeth none but Rogues and Rascals like himself. In the Duke of Buckingham's Case, He has no more Conscience than a Dog. In the Lord * Hill. 16 Car. 2 Rot. 1269. Affirmed in a Writ of Error in B R. Marquis of Dorchester's Case, He is no more to be valued than the Black Dog which lies there. All which Words were held actionable, and yet they touch not the persons in any thing concerning the Government, or charge them with any Crime, but in point of Dignity or Honour; And they were all vilifying Words, and might give occasion of Revenge. And so are the Words for which this Action is brought, they are rude, uncivil, and ill natured; Unworthy is as much as to say base and ignoble, a contemptible Person, and a Man of neither Honour or Merit. And thus to speak of a Nobleman, is a Reflection upon the King, who is the Fountain of Honour, that gives it to such persons who are (in his judgement) deserving, by which they are made capable of advising him in Parliament, and it would be very dishonourable to call unworthy Men thither. 'Tis likewise a dishonour to the Nobility to have such a person to fit among them as a Companion, and to the Commons to have their proceed in Parliament transmitted to such Peérs: so that it tends to the dishonour of all Dignities, both of King, Lords and Commons, and thereby discords may arise between the two Houses, which is the Mischief intended to be remedied by this Act. Then the following Words are as scandalous; for to say A Man acts against Law and Reason, imports several such acts done; a Man is not denominated to be unworthy by doing of one single Act; for in these Words more is implied, than to say he hath done an unworthy thing; for the Words seem to relate to the Office which the Plaintiff had in the Country, as Lord Lieutenant, which is an Office of great Honour, and can any thing tend to cause more discord and disturbance in the Kingdom, than to say of a great Officer, That he acts according to the dictates of his Will and Pleasure? the consequence of which is, that he will be rather scorned than obeyed. It hath been objected, that the Words are general, and charge him not with any act. Answ. The Scandal is the greater; for 'tis not so bad to say A Man did such a particular thing against Law and Reason; as to say, He acts against Law; which is as much as to say, his constant course and practice is such: And to say that the Words might be meant of breaking a Penal Law, that is a foreign Construction; for the plain sense is, he acts against the known Laws of the Kingdom, and his practice and designs are so to do, for he will be guided neither by Law or Reason. Object. It has been objected that the Scandal must be false: But whether true or not, there can be no justification here, because they are so general, that they cannot be put in Issue. Answ. He agreed that no Action would lie upon this Statute if the words were true; but in some Cases the divulging of a Scandal was an Offence at the Common Law; now to argue (as on the other side) that the Defendant cannot justify, and therefore an Action will not lie, is a false Consequence; because words may be scandalous and derogatory to the dignity of a Peer, and yet the subject matter may not be put in Issue. He agreed also that occasional Circumstances may extenuate and excuse the Words, though ill in themselves; but this cannot be applied to the Case in question, because the Words were not mitigated: The Defendant pleaded Not Guilty, and insisted on his Innocence; the jury have found him Guilty, which is an aggravation of his Crime; if he would have extenuated them by any occasion upon which they were spoken, he should have pleaded it specially, or offered it in Evidence, neither of which was done. This Act is to be taken favourably for him against whom the Words are spoken; because 'tis to prevent great Mischiefs which may fall out in the Kingdom, by rude and uncivil discourses; and in such Cases 'tis usual for Courts rather to enlarge the remedy than to admit of any extenuation; for which reasons he prayed that the Plaintiff might have his judgement. It was argued by Sergeant Calthrop on the same side, and to the same effect. Afterwards this Term, all the judges argued this Case, Argument at the Bench. seriatim at the Bench. And first justice Scroggs said, That the greatness of the Damages given should not prevail with him, either on the one side or the other; at the Common Law no Action would lie for such Words, though spoken of a Peer, for such Actions were not formerly much countenanced; but now since a Remedy is given by the Statute, Words should not be construed either in a rigid or mild sense, but according to the genuine and natural meaning, and agreeable to the common understanding of all Men. At the Bar the strained sense for the Plaintiff is, that these Words import He is no Man of Honour; and for the Defendant, that they import no Scandal; and that no more was meant by them, but what may be said of every Man. 'Tis true, in respect of God Almighty, we are all Unworthy, but the subsequent Clause explains what unworthiness the Defendant intended, for he infers him to be Unworthy, because he acts against Law and Reason. Now whether the Words thus explained fix any Crime on the Plaintiff, is next to be considered; and he was of Opinion that they did fix a Crime upon him; for to say He is an unworthy Man, is as much as to say, He is a vicious person, and is the same as to call him a corrupt Man, which in the Case of a Peer is actionable; for general words are sufficient to support such an Action, though not for a common person. To say, a Man acts against Law and Reason, is no Crime, if he do it ignorantly; and therefore if he had said My Lord was a weak Man, for he acts against Law and Reason; such words had not been actionable; but these Words as spoken do not relate to his Understanding, but to his Morals; they relate to him also as a Peer (though the contrary has been objected) that they relate to him only as a Man, which is too nice a distinction; for to distinguish between a Man and his Peerage, is like the distinction between the person of the King, and his Authority, which hath been often exploded; the words affect him in all qualities, and all relations. It has been also objected, that the Words are too general; and like the Case of the Bishops Return, that a Man is criminosus, which is not good: But though they are general in the Case of a Peer, they are actionable; for to say of a Bishop That he is a wicked Man, these are as general words, and yet an Action will lie. It has been also objected, That general Words cannot be justified; but he was of another Opinion, as if the Plaintiff, who was Lord Lieutenant of the County, had laid an unequal charge upon a Man, who upon complaint made to him, ordered such charge to stand, and that his will in such case should be a Law: If the person should thereupon say That the Lord had done Unworthily, and both against Law and Reason; those words might have been justified, by showing the special matter, either in Pleading or Evidence. 'Tis too late now to examine whether an Action will lie upon this Statute, that must be taken for granted, and therefore was not much insisted on by those who argued for the Defendant, for the Authorities are very plain, that such Actions have been allowed upon this Statute. The Words, as here laid to be spoken, are not so bad as the Defendant might speak, but they are so bad that an Action will lie for them; and though they are general, yet many Cases might be put of general words which import a Crime, and were adjudged actionable. The Earl of Leicester's Case, He is an Oppressor: The Lord of Winchester's Case, He kept me in Prison till I gave him a Release; these words were held actionable, because the plain inference from them is, That they were Oppressors: The Lord Abergavenny's Case, He sent for me and put me into Little Ease: It might be presumed, that that Lord was a justice of Peace, as most Peers are in their Counties, and that what he did was by colour of his Authority; so are all the Cases cited by those who argued for the Plaintiff, in some of which the words were strained to import a Crime, and yet adjudged actionable; especially in the Case of the Lord Marquis of Dorchester, He is to be valued no more than a Dog, which are less slanderous Words than those at the Bar, because the slander is more direct and positive. It appears by all these Cases, that the judges have always construed in favour of these Actions, and this has been done in all probability to prevent those dangers that otherwise might ensue if the Lords should take revenge themselves; for which reasons he held the Action will lie. Atkyns justice contra. This is not a common Action upon the Case, but an Action founded upon the Statute of the 2 of R. 2. upon the Construction whereof the Resolution of this Case will depend, whether the Action will lie or not. And as to that he considered, 1. The Occasion. 2. The Scope. 3. The parts of the Statute. 1. The occasion of it is mentioned in Cotton's Abridgement of the Records of the Tower f. 173. nu. 9 and 10. At the summoning of this Parliament, the Bishop of St. David's declared the Causes of their meeting, and told both the Houses of the Mischiefs that had happened by divers slanderous Persons, and sowers of Discord, which he said were Dogs that eat raw Flesh; the meaning of which was, that they devoured and eat one another; to prevent which the Bishop desired a Remedy, and his Request seemed to be the Occasion of making this Law; for ex malis moribus bonae nascuntur Leges. 2. The Scope of the Act was to restrain unruly Tongues from raising false Reports, and telling Stories and Lies of the Peers and Great Officers of the Kingdom; so that the design of the Act was to prevent those imminent dangers which might arise and be occasioned by such false Slanders. 3. Then the parts of the Act are three, viz. reciting the Offence and the Mischief, then mentioning the ill Effects, and appointing of a Penalty. From whence he Observed. 1. That here was no new Offence made or declared; for nothing was prohibited by this Statute, but what was so at the Common Law before. The Offences to be punished by this Act, are mala in se, and those are Offences against the Moral Law; they must be such in their nature, as bearing of false Witness; and these are Offences against a common Person, which he admitted to be aggravated by the eminency of the person against whom they were spoke; but every uncivil Word, or rude Expression spoken, even of a Great Man, will not bear an Action; and therefore an Action will not lie upon this Statute for every false Lie, but it must be horrible as well as false, and such as were punishable in the High Commission Court, which were enormous Crimes, 12 Co. 43. By this description of the Offences, and the consequences and effects thereof, he said he could better judge whether the Words were actionable or not; and he was of Opinion, that the Statute did not extend to Words of a small and trivial nature, nor to all Words which were actionable, but only to such which were of a greater magnitude, such by which Discord might arise between the Lords and Commons, to the great peril of the Realm, and such which were great Slanders, and horrible Lies, which are words purposely put into this Statute, for the aggravation and distinction of the Crime; and therefore such Words which are actionable at the Common Law, may not be so within this Statute, because not horrible great Scandals. He did not deny, but that these were undecent and uncivil words, and very ill applied to that honourable person of whom they were spoken, but no body could think that they were horrible great slanders, or that any debate might arise between the Lords and Commons, by reason such words were spoken of this Peer, or that it should tend to the great peril of the Kingdom, and the quick destruction thereof, such as these were not likely to be the effects and consequences of these Words, and therefore could not be within the meaning of the Act, because they do not agree with the description given in it. 2. Here is no new punishment inflicted on the Offender, for at the Common Law, any person for such Offences as herein are described might have been Fined and Imprisoned, either upon Indictment or Information brought against him, and no other punishment is given here but Imprisonment. Even at the Common Law scandal of a Peer might be punished by Pillory and loss of Ears, 5 Co. 125. De Libellis Famosis, 12 Co. 37. 9 Co. 59 Lamb's Case. So that it appears this was an Offence at the Common Law, but aggravated now, because against an Act of Parliament, which is a positive Law; much like a Proclamation which is set forth to enforce the execution of a Law, by which the Offence is afterwards greater. He did agree, that an Action would lie upon this Statute, though there were no express Words to give it to a Peer, because where there is a Prohibition, and a Wrong and Damage arises to the Party, by doing the thing prohibited; in such Case the Common Law doth entitle the Party to an Action, 10 Co. 75. 12 Co. 100, 103. And such was the Resolution in the Earl of Northampton's Case, upon construction of the Law as incident to the Statute; and as the Offence is greater because of the Act, and as the Action will lie upon the Statute, so the Party injured may sue in a qui tam, which he could not have done before the making this Law. 3. But that such words as these were not actionable at the Common Law, much less by the Statute; for the Defendant spoke only his judgement and Opinion, and doth not directly charge the Plaintiff with any thing, and might well be resembled to such Cases as are in Rolls Abridgm. 1 part 57 pl 30. which is a little more solemn, because adjudged upon a special Verdict; the Words were spoken of a justice of Peace, Thou art a Bloodsucker, and not fit to live in a Commonwealth. These were not held actionable, because they neither relate to his Office, or fix any Crime upon him. Fol. 43. in the same Book, Thou deservest to be hanged, not actionable, because it was only his Opinion. So, where the Words are general without any particular Circumstances, they make no impression and gain no credit; and therefore in Cro. Car. 111. 1 Roll. Abridgm. 107. pl. 43. You are no true Subject to the King; the Action would not lie. In this Case 'tis said, the Plaintiff acts against Law, which doth not imply a Habit in him so to do; and when Words may as well be taken in a mild, as in a severe Sense, the Rule is quod in mitiori sensu accipienda sunt. Now these Words are capable of such a favourable construction; for no more was said of the Plaintiff, than what in some sense may be said of every person whatsoever; for who can boast of his Innocency? who keeps close in all his actions to Law and Reason? and to say A Man acts against both, may imply that he departed from those Rules in some particular Cases, where it was the Error of his judgement only. In the Duke of Buckingham's Case, Sheppard's Abridgement 1 part, f. 28. Viz. You are used to do things against Law; and mentions a particular fact there indeed, because of Usage; of the ill practice it was held that an Action lies; but if he had been charged for doing a thing against Law but once, an Action would not lie. He then observed how the Cases which have been adjudged upon this Statute, agree with the Rules he had insisted on in his Argument, which Cases have not been many, and those too of late times; in respect of the Antiquity of the Act, which was made almost 300 hundred years since, Anno 1379. and for 120 years after no Action was brought, the first that is Reported was 13 H. 7. Keilway 26. So that we have no contemporanea expositio of the Statute to guide an Opinion, which would be a great help in this Case; because they who make an Act best understand the meaning; but now the meaning must be collected from the Statute itself, which is the best Exposition, as the Rule is given in Bonham's Case, 8 Co. Vide the Case in 13 H. 7. The next Case in time is the Duke of Buckingham's Case, 4 H 8. Cromp Jur. of Courts, f. 13. You have no more Conscience than a Dog. Lord Abergavenny against Cartwright, in the same Book, You care not how you come by Goods; in both which Cases the Words charge the Plaintiff with particular matter, and give a Narrative of something of a false Story, and do not barely rest upon an Opinion. In the Bishop of Norwich his Case, Cro. Eliz. 1. Viz. You have writ to me that which is against the Word of God, and to the maintenance of Superstition. These were held actionable, because they refer to his Function and greatly defame him, and yet he had but 500 Marks Damages. 29 & 30 Eliz. 1 Cro. 67. The Lord Mordant against Bridges, My Lord Mordant did know that Prude rob Shotbolt, and bid me compound with Shotbolt for the same, and said, he would see me satisfied for the same, though it cost him an hundred pounds; which I did for him being my Master, otherwise the Evidence I could have given would have hanged Prude: These Words were held actionable and 1000 l. Damages given; and in all the other Cases which have been mentioned upon this Statute, and where judgement was given for the Plaintiff, the Words always charge him with some particular Fact, and are positive and certain, but where they are doubtful and general, and signify only the Opinion of the Defendant, they are not actionable. The Words in the Case at Bar, neither relate to the Plaintiff as a Peer, or a Lord Lieutenant, and charge him with no particular Crime; so that from the authority of all these Cases he grounded his Opinion, that the Action would not lie; and he said, If Laws should be expounded to wrack People for Words, instead of remedying one Mischief, many would be introduced, for in such Case they would be made Snares for Men. The Law doth bear with the Infirmities of Men, as Reliligion, Honour and Virtue doth in other Cases; and amongst all the excellent Qualities which Adorn the Nobility of this Nation, none doth so much as forgiving of Injuries; Solomon saith, That 'tis the Honour of a Man to pass by an Infirmity. Which if the Plaintiff should refuse, yet the Defendant (if he thinks the Damages excessive) is not without his remedy by Attaint, for he said he could show where an Attaint was brought against a jury for giving 60 l. Damages. He farther said, that he could not find that any judgement had been either reversed or arrested upon this Statute, and therefore it was fit that the Law should be settled by some Rule, because 'tis a wretched condition for People to live under such Circumstances, as not to know how to demean themselves towards a Péer; and since no Limits have been hitherto prescribed 'tis fit there should be some now, and that the Court should go by the same Rules in the Case of a Peer, as in that of common person, that is, not to construe the Words actionable without some particular Crime charged upon the Plaintiff, or unless he allege special damages; for which Reasons he held that this Action would not lie. Wyndham justice accorded with Scroggs; and the Chief justice North agreed with them in the same Opinion; his Argument was, viz. First, he said that he did not wonder that the Defendant made his Case so solemn, being loaded with so great damages; but that his Opinion should not be guided with that or with any Rules, but those of Law, because this did not concern the Plaintiff alone, but was the Case of all the Nobility of England; but let it be never so general, and the Conveniences or Incoveniences never so great, he would not upon any such considerations altar the Law. He said that no Action would lie upon this Statute, which would not lie at the Common Law; for where a Statute prohibits a thing generally, and no particular Man is concerned, an Offence against such a Law is punishable by Indictment; but where there is a particular damage to any person by doing the thing prohibited, there an Action will lie upon the Statute, and so it will at the Common Law. The Words therefore which are actionable upon this Statute are so at the Common Law. This Statute extends only to Peers or other great Officers; now every Peer as such is a great Officer, he has an Office of great Dignity, he is to support the King by his advice, of which he is made capable by the great Eminency of his Reputation, and therefore all Words which reflect upon him as he is the King's Councillor, or as he is a Man of Honour and Dignity, are actionable at the Common Law. In the ordinary Cases of Officers 'tis not necessary to say that the Words were spoken relating to his Office, as to say of a Lawyer that He is a Sot or an Ignoramus; or of a Tradesman, He is a Bankrupt, the Action lies though the Words were not spoken of either as a Lawyer or Trades-man. He did not think that judges were to teach Men by what Rules to walk other than what did relate to the particular matter before them, all other things are gratis dicta; neither would he allow that distinction, that an Action would not lie where a Man spoke only his Opinion; for if that should be admitted, it would be very easy to scandalise any Man, as I think such a Judge is corrupt, or I am of Opinion that such a Privy Councillor is a Traitor; and can any Man doubt whether these or such like Words are actionable or not, because spoken only in the sense of the person? 'Tis true, in some Cases where a Man speaks his own particular disesteem an Action will not lie, as if I say, I care not for such a Lord, but that differs much where a Man speaks his Opinion with reference to a Crime; for Opinions will be spread, and will have an implicit Faith, and because one Man believes it another will; and 'tis upon this ground that all the Cases which have been since the Statute are justified; and so was the late Case of * Sid. 233. the Marquis of Dorchester, He is no more to be valued than the Black Dog which lies there which were Words of disesteem, and only the Opinion of the Defendant, in which Case judgement was affirmed in a Writ of Error. Object. If it be objected to what purpose this Statute was made if no Action lies upon it, but what lay at the Common Law. Answ. The Plaintiff now upon the Statute must prosecute tam pro Domino Rege quam pro seipso, which he could not do at the Common Law. And it has been held in the Starr-Chamber that if a Scandalum Magnatum be brought upon this Statute the Defendant cannot justify, because 'tis brought qui tam, etc. and the King is concerned; but the Defendant may explain the Words and tell the occasion of speaking of them, if they are true, they must not be published because the Statute was to prevent Discords. Object. These Words carry in them no disesteem. Answ. According to a Common Understanding they are Words of disrespect and of great disesteem; for 'tis as much as to say, that the Plaintiff is a Man of no Honour; he is one who lives after his own Will, and so is not fit to be employed under the King; if any precedent discourse had qualified the speaking these Words it ought to have been shown by the Defendant, which is not done, and therefore he concluded that the Words notwithstanding what was objected were actionable; and so by the Opinion of him, Wyndham and Scroggs justices, judgement was given for the Plaintiff. Atkins justice of a contrary Opinion. Anonymus. AN Action of Assault, Battery, Amendment after a Demurrer joined and before Judgement given, good. Wounding and false Imprisonment for an hour was brought against the Defendant, who pleads quoad venire vi & armis Not-Guilty; and as to the Imprisonment he justified as Servant to the Sheriff attending upon him at the time of the Assize, from whom he received a Command to bring the Plaintiff (being another of the Sheriff's Servants) from the Conventicle, where finding of him, he (to wit the Defendant) did molliter manus imponere upon the Plaintiff, and brought him before his Master, quae est eadem transgressio; To this the Plaintiff demurred and showed for Cause, 1. That the Substance of the justification is not good, 2 Cro. 360. because the Servant could not thus justify though his Master might; for the Lord may beat his Villain without a Cause, but if he command another to do it, an Action of Battery lies against him, 2 H. 4. 4. But though this might have been good, if well pleaded, yet 'tis not good as pleaded here; for 2. The Defendant saith quoad venire vi & armis Not-Guilty, Harding and Ferne, Postea. but saith nothing of the wounding which cannot be justified, and therefore this Plea is not good; for which reason it was clearly resolved that the Plea was ill, but the Court inclined that the Substance of the Plea was well enough. The Chief justice and justice Scroggs were of Opinion that a Man may as well send for his Servant from a Conventicle as from an Alehouse, and may keep him from going to either of those places: And the Chief justice said that he once knew it to be part of a Marriage Agreement that the Wife should have leave to go to a Conventicle. But in this Case Leave was given to amend the Plea, Sid. 107. and put in quoad vulnerationem Not-Guilty; and it was held that though the Parties had joined in Demurrer, yet the Defendant might have Liberty to amend before judgement given. Singleton versus Bawtree Executor. Traverse must be where the Charge in the Declaration is not fully answered. ASsumpsit against the Defendant as Executor, who pleads the Testator made one J. S. Executor, who proved the Will and took upon him the Execution thereof, and administered the Goods and Chattels of the Testator, and so concludes in Abatement Et petit Judicium de Brevi, with an Averment that J. S. Superstes & in plena vita existit. To this Plea the Plaintiff demurred, because the Defendant ought to have traversed absque hoc that he was Executor, or administered as Executor, and so are all the Plead, 9 H. 6. 7. 4 H. 7. 13. 7 H. 6. 13. But Sergeant Pemberton for the Defendant said, that there is a difference when Letters of Administration are granted in case the Party die intestate, and when a Man makes a Will and therein appoints an Executor, for in that Case the Executor comes in immediately from the death of the Testator; but when a Man dies intestate the Ordinary hath an Interest in the Goods, and therefore he who takes them is Executor de son tort, and may be charged as such; but 'tis otherwise generally, where there is a Will and a rightful Executor, who proveth the same, for he may bring a Trover against the Party for taking of the Testators Goods though he never had the actual possession of them; and therefore the taking in such case will not make a Man Executor de son tort, because there is another lawful Executor; but 'tis true, that if there be a special Administration 'tis otherwise; as if a Stranger doth take upon him to pay Debts or Legacies; or to use the Intestates Goods; such an express Administration will make him Executor de son tort, and liable, as in Read's Case, 5 Co. So in this Case the Defendant pleads that J. S. was Executor, which prima fancy discharges him; for to make him chargeable the Plaintiff ought in his Replication to set forth the special Administration, that though there was an Executor, yet before he assumed the Execution or proved the Will, the Defendant first took the Goods, by which he became Executor of his own Wrong, and so to have brought himself within this distinction, (which was the truth of this Case) and that would have put the matter out of dispute, which not being done, he held the Plea to be good; and so prayed judgement for the Defendant. The Court were of Opinion that prima fancy this was a good Plea; for where a Man * 2 Sand. 28. confesses and avoids, he need not traverse, and here the Defendant had avoided his being chargeable as Executor de son tort, by saying that there was a rightful Executor who had administered the Testators whole Estate; but the Surmise of the Plaintiff and the Plea of the Defendant being both in the * 2 Cro. 579. pl. 9 Sid. 341. 1 Sand. 338. affirmative no Issue can be joined thereon; and therefore the Defendant ought to have traversed that he was Executor, or ever administered as Executor, the rather because his Plea gives no full Answer to the Charge in the Declaration, being charged as Executor, who pleads that another was Executor, and both these matters might be true, and yet the Defendant liable as Executor de son tort, which (notwithstanding Iniquum non est praesumendum) may be well intended here; and so judgement was given against the Defendant that this was no good Plea. Adam's versus adam's. DEBT upon Bond to perform an Award, Award, Exceptions thereunto overruled. so that it be made before or upon the 22d day of December, or to choose an Umpire. The Defendant pleads no Award made: The Plaintiff replies and sets forth an Award, and assigns a Breach: The Defendant demurs. 1. That here is no good Award, Mod. Rep. 274. because the Arbitrators were to make it before or upon the 22d day of December, and if they could not agree, to choose an Umpire: 2 Sand. 133. Now the Award set forth in the Replication was made by an Umpire chosen after the 22d day of December, which the Arbitrators had not power by the Submission to choose, Sed non allocatur, because they might have made their Award upon the 22d. of December, and therefore could not choose an Umpire till afterwards; for their Power was only determined as to the making an Award. 2. Antea. Because the Umpire recites that the Parties submitting had bound themselves to stand to his Award which is not true, Sed non allocatur, because 'tis but Recital. 3. The Award is that the Defendant should pay the Plaintiff two Sums at several times, and that several releaseth shall be given presently, and so the Bond and the Money would be discharged; and for that reason the Awarding the Release was void against the Plaintiff, and by consequence there is nothing on his side to be done; and the Court were all of Opinion that for this last reason the Award was not good. Sergeant Baldwyn who was of Council for the Plaintiff, said that it was an Exception which he could not answer if true, but said that the Award was not that Releases should be given presently, but that the Money should be paid and Releases given, by which it appears by the very Method and Order of the Award, that the general Releases were not to be given till after the Money paid; and that being the Case the Court were clear of Opinion, that it was well enough; and so judgement was given for the Plaintiff. Brook versus Sir William Turner. Feme Covert made a Will and disposed of her Estate, and good. IN a Prohibition to the Spiritual Court to prove the Will of Philippe Brooks by Sir William Turner her Executor. A Trial at the Bar was had, in which the Case was, viz. That James Phillips, by Will in Writing dated 24 Aprilis, 1671. inter alia gave to Philippe for Life, in lieu and full of her Dower, all his Houses in Three Crown Court in Southwark, purchased by him of one Mr. Keeling; another House in Southwark purchased of one Mr. Bows, and all his Houses in New Fish-street, Pudding-Lane, Buttolph Lane, Beer Lane, Duxfield Lane and Dowgate London; and died. That afterwards there being a Treaty of Marriage between the Plaintiff Mr. Brooks and Philippe Phillips, it was agreed that all the said Houses and Rents, and Profits thereof, and all Debts, Ready Money, jewels and other real and personal Estate whatsoever, or wherein Philippe, or any in Trust for her, were interessed or possessed, should at any time as well before as after the Marriage be disposed in such manner as should be agreed on between them. And thereupon by Indenture tripartite between Mr. Brook of the first part, the said Philippe Phillips of the second part, and William Williams and Francis Gillow of the third part, reciting the said Will of James Phillips and the said Agreement, the said Philippe in consideration of a Shilling paid to her by Williams and Gillow did with the full and free Consent of the said Edward Brook the now Plaintiff, grant, bargain and sell to the said Williams and Gillow all the said Houses devised by the last Will of the said James Phillips, in Trust that the said trusties should permit her to receive and enjoy the whole Rents and Profits of all the Houses purchased of Mr. Keeling, and of all the Houses in Beer Lane, and of two of the Houses in Broadstreet in the possession of James and Worsley, and the Quarters Rend only due at Christmas then last passed, and no more, saving to Philippe all former Rents and Arrears thereof to be received by her, and not by Mr. Brook, and to be employed as therein after was mentioned. And upon this farther Trust, that after Mr. Brooks death in case the said Philippe survived, that then the Trustées should permit Philippe and her Assigns from time to time to grant, sell and dispose of the rest of the Premises, and all others whereof she was seized or possessed, as she should think fit; and also to receive, dispose of and enjoy all the Rents and Profits of the Premises (not thereby appointed to be received by the Plaintiff) for her only particular and separate use, and not for the use of the Plaintiff, without any account to be given for the same, and not to be accounted any part of Mr. Brook's Estate; and that the Acquittances of the said Philippe be good discharges against the Plaintiff; and the said trusties to join with Philippe in the Sale and disposition of the Premises. And Philippe in farther consideration of the said Marriage agreed to pay to Mr. Brook on the day of Marriage 150 l. and to deliver him several Bonds and Securities for Money in the said Indenture particularly named. And the said Philippe in farther pursuance of the said Agreement, and in consideration of a Shilling paid to her by the said trusties, did with the like assent assign to them all her jewels, Rings, Money, etc. and other her real and personal Estate, upon Trust that they should permit her to enjoy the same to her own separate and distinct use, and to dispose thereof from time to time as well before the said Marriage as afterwards, as she should think fit without any Account, and for want of such Limitation or Appointment, in Trust for her, her Executors, Administrators or Assigns; and the Plaintiff not to hinder or impeach the same, and not to be taken as any part of his Estate, or be subject to his Debts, Legacies or Engagements. And the Plaintiff covenanted, that if the Marriage took effect, the trusties should quietly enjoy the Premises, and Philippe to dispose thereof without trouble or molestation by him, his Executors, etc. and that Philippe (notwithstanding the Marriage) should at any time either before or after, have liberty by Deed or Will in Writing by her published in the presence of two or more credible Witnesses, or otherwise howsoever, at her pleasure to give and dispose all her real and personal Estate, Goods, Chattels, etc. whereof she was possessed before the said intended Marriage, or at any time after, or any other person in Trust for her (except such part thereof as was thereby agreed to be paid to, and received by the Plaintiff) to such person or persons, and to such use and uses, intents and purposes as she should think fit, and that the Plaintiff should assent thereunto, and not impeach the same in Law or Equity. The Marriage shortly afterwards took effect, and Philippe by Will in Writing gave all her Estate away in Legacies and Charitable uses, and she devised to the Plaintiff 20 l. to buy him Mourning, and gave to Sir William Turner the Defendant 100 l. and made him Executor; and she devised to Mr. Hays and to Mr. Grace 20 l. apiece, whom she made Overseers of her Will, and died. There was neither Date or Witnesses to this Will, save only the Month and Year of our Lord therein mentioned; and that this Will not being proved in the Spiritual Court, the Plaintiff moved for a Prohibition, and the Defendant took Issue upon the Suggestion. In which Case these Points were resolved by the Court. Mod. Rep. 211. 1. If there be an Agreement before Marriage that the Wife may make a Will, if she do so, 'tis a good Will, unless the Husband disagreés; and his Consent shall be employed till the contrary appear. And the Law is the same though he knew not when she made the Will, which when made 'tis in this Case, as in others, ambulatory till the death of the Wife, and his dissent thereunto; but if after her death he doth consent he can never afterwards descent, for than he might do it backwards and forwards in infinitum. 2. If the Husband would not have such Will to stand he ought presently after the death of the Wife to show his dissent. 3. If the Husband consent that his Wife shall make a Will, and accordingly she doth make such a Will and dieth, and if after her death he comes to the Executor named in the Will, and seems to approve her choice, by saying, He is glad that she had appointed so worthy a Person, and seemed to be satisfied in the main with the Will, and recommended a Coffin-maker to the Executor, and a Goldsmith for making the Rings, and a Herald Painter for making the Escutcheons, this is a good assent and makes it a good Will, though the Husband when he sees and reads the Will (being thereat displeased) opposes the Probate in the Spiritual Court by entering Caveats and the like; and such disagreément after the former assent will not hurt the Will, because such assent is good in Law, though he know not the particular Bequests in the Will. 4. When there is an express Agreement or Consent that a Woman may make a Will, a little proof will be sufficient to make out the continuance of that Consent after her death; and it will be needful on the other side to prove a Disagreement made in a solemn manner; and those things which prove a dissatisfaction on the Husband's part may not prove a disagreement, because the one is to be more formal than the other; for if the Husband should say that he hoped to set aside the Will, or by a Suit or otherwise to bring the Executor to terms, this is not a dissent. Sir Robert Howard versus the Queens trusties and the Attorney General. In the Duchy. UPON a Bill exhibited in the Duchy Court; Jones 126. The Question was, whether the Stewardship of a Manor was grantable in Reversion or not? The Attorney General and the Queen's Council, Butler and Hanmore, held that it was not: But Sergeant Pemberton and Mr. Thursby would have argued to the contrary; for they said it might be granted in Fee, or for any less Estate, and so in reversion, for it may be executed by Deputy. But this Question arising upon a Plea and Demurrer the Debate thereof was respited till the hearing of the Cause, which was the usual Practice in Chancery, as North Chief justice, who assisted the Chancellor of the Duchy, informed the Court. And he said that in all Courts of Equity the usual course was; when a Bill is exhibited to have Money decreed due on a Bond upon a Suggestion that the Bond is lost; there must be Oath made of it, for otherwise the Cause is properly triable at the Common Law; and such course is to be observed in all the like Cases, where the Plaintiff by surmise of the loss of a Deed draws the Defendant into Equity; but if the Case be proper in its own nature for a Court of Conscience, and in case where the Deed is not lost, the Remedy desired in Chancery could not be obtained upon a Trial at Law, there though it be alleged that the Deed is lost, Oath need not be made of it; as if there be a Deed in which there is a Covenant for farther Assurance, and the Party comes in Equity, and prays the thing to be done in specie, there is no need of an Oath of the loss of such Deed, because if it 'tis not lost the Party could not at Law have the thing for which he prayed Relief, for he could only recover Damages. Note also, That he said in the Case of one Oldfeild that it was the constant practice where a Bill is exhibited in Equity to foreclose the right of Redemption, if the Mortgagor be foreclosed he pays not Costs; and though it was urged for him that he should pay no Costs in this Case, because the Mortgagee was dead, and the Heir within Age, and the Money could not safely be paid without a Decree, yet it being necessary for him to come into Equity, he must pay for that necessity. Note also, the difference between a Mortgage in Fee, and for Years; for if 'tis in Fee, the Mortgagor cannot have a Reconveyance upon payment of the Money, till the Heir comes of Age. It was agreed in this Case by the Court, that if there be Tenant for Life, Remainder in Fee, and they join in a Deed purporting an absolute Sale, if it be proved to be but a Mortgage he shall have his Estate for Life again, paying pro rata, and according to his Estate; and so it shall be in the Case between Tenant in Dower and the Heir. Loyd versus Langford. Lessee for Years makes an Assignment of his Term where Debt lies upon the Contract, and where not. IN a special Verdict the Case was: Viz. A. being Tenant in Fee of Lands, demised the same to B. for seven years, B. redemises the same Lands to A. for the said Term of seven years, reserving 20 l. Rent per Annum. A. dies, his Wife enters as Guardian to the Heir of A. her Son, and receives the Profits. B. brings Debt against her as Executrix de son tort, in the debet and detinet, and whether this Action would lie or not was the Question. Sergeant Baldwyn, who argued for the Plaintiff, held that it did lie, for though the Rent in this Case reserved did not attend the Reversion, because the Lessee had assigned over all his Term, yet an Action of Debt will lie for that Rent upon the Contract, Cro. Jac. 487. Witton versus Buy 45 Ed. 3. 8. 20 E. 4 13. Covevenant will lie upon the Words Yielding and Paying. If then here is a good Rent reserved, the Wife who receives the Profits, becomes Executrix de son tort, and so is liable to the payment. It hath been held there cannot be an Executor de son tort of a Term, but the Modern Opinions are otherwise; as it was held in the Case of Porter and Sweetman, Trin. 1653. in B. R. And that an Action of Debt will lie against him. Indeed such an Executor cannot be of a Term in futuro, and that is the Resolution in Kenrick and Burgesses Case, Moor Rep. Where in Ejectment upon Not Guilty pleaded, it appeared that one Okeham had a Lease for years of the Lands in question, who died Intestate, which Lease his Wife assigned by parol to Burgess; and then she takes out Letters of Administration, and assigns it again to Kenrick, who by the Opinion of the Court had the best Title. But if one enter as Executor de son tort, and sell Goods, the Sale is good; which was not so in this Case, because there was a Term in Reversion, whereof no Entry could be made, for which reason there could be no Executor de son tort to that, and therefore the Sale to Burgess before the Administration, was held void. And that there may be an Executor de son tort of a Term, there was a late Case adjudged in Trin. 22 Car. 2. between Stevens and Carr, which was, Lessee for years rendering Rent dies Intestate, his Wife takes out Letters of Administration, and afterwards Marries a second Husband, the Wife dies, and the Husband continues in Possession and receives the Profits: It was agreed, that for the Profits received he was answerable as Executor de son tort, and the Book of 10 H. 11. was cited as an authority to prove it. Pemberton Sergeant for the Defendant, Ex parte Def. would not undertake to answer these Points which were argued on the other side, but admitted them to be plain against him, for he did not doubt but that Debt would lie upon the Contract, where the whole Term was assigned, and that there may be an Executor de son tort of a Term; but he said, that which was the principal point in the Case was not stirred: The question was, whether an Action of Debt will lie against the Defendant as Executor de son tort where there is no Term at all; for 'tis plain there was none in being in this Case, because when the Lessee Redemised his whole Term to the Lessor, that was a Surrender in Law, and as fully as if it had been actually surrendered; and therefore this was quite different from the Case, where Lessee for years makes an Assignment of his whole Term to a Stranger, Debt will lie upon the Contract there, because an Interest passes to him in Reversion, and as to this purpose a Term is in esse by the Contract of the Parties, and so it would here against the first Lessor, who was Lessee upon the Re-demise; but now because of the Surrender, the Heir is entitled to enter, and the Mother, who is the Defendant, enters in his Right as Guardian, which she may lawfully do. If therefore Debt only lies upon the Contract of the Testator, as in truth it doth where the whole Term is gone, the Plaintiff cannot charge any one as Executor de son tort in the debet and detinet. And the whole Term is gone here by the Re-demise, which is an absolute Surrender, and not upon Condition, for in such Case the Surrenderor might have entered for non-performance, and so it might have been revived: And of this Opinion was the whole Court in both points, and would not hear any farther Argument in the Case; the Plaintiff having no remedy at Law, the Court told him that he might seek for relief in Chancery, if he thought fit. Harman's Case. IN Covenant the breach assigned was, that the Defendant did not repair; He pleads generally quod reparavit & de hoc ponit se super patriam, this was held good after a Verdict. Quadring versus Downs, & al'. Wardship cannot be where there is no descent. IN a Writ of right of Ward, the Case was, Viz Sir William Quadring being seized of Lands in Fee, by Deed and Fine settles them upon his Son William and his Wife for their Lives, the Remainder to the second Son in Tail, with divers Remainders over. The Grandfather dies, the Father and Mother dies, the eldest Son dies without Issue, and so the Land came to the second Son. The Plaintiff entitles himself as Guardian in Socage to the Wardship both of the Person and Lands of the Infant, whom the Defendant detained, and Sergeant Newdigate for him demurred, because where there is no descent there can be no Wardship, for the second Son is in by purchase and not by descent, for here is no mention of the Reversion in Fee, and therefore it may be intended that it was conveyed away; and besides, if it should be intended to continue to Sir William Quadring the Grandfather after this Settlement, yet it cannot be thought to descend to the Ward, because 'tis not said who was Heir; for though it be said that the Father of the Ward was Son to Sir William, yet 'tis not said Son and Heir, and of that Opinion was the whole Court in both points; for there must be a descent or else there can be no Wardship; and it doth not appear that any descent was here, because 'tis not said that the Reversion did descend, nor who was Heir to Sir William, which the Plaintiff perceiving, prayed leave to amend, and it was granted. In this Case it was said at the Bar, that one might be a Ward in Socage, though he be in by Purchase, for the Guardian is to have no profit, but is only a Curator, to do all for the benefit of the Ward; and so there need be no descent, as is necessary in the Case of a Ward in Chivalry; for that being in respect of the Tenure, the Guardian is to have profit. The Lord Chief justice North said, Nota. he knew where there was some doubt of the sufficiency of the Guardian in Socage, that the Court of Chancery made him give good Security. Harding versus Ferne. IN an Action of Assault, Battery and Imprisonment, Antea Anonymus. till the Plaintiff had paid 11 l. 10 s. The Defendant pleads and justifies by reason of an Execution, and a Warrant thereupon for 11 l. and doth not mention the 10 s. And upon demurrer for this Cause, judgement was given for the Plaintiff upon the first opening, because it appeared the Defendant took more than was warranted by the Execution. Ellis versus Yarborough Sheriff of Yorkshire. IN an Action of Escape the Plaintiff sets forth that the Defendant Arrested a Man upon a Latitat directed to him at the Suit of the Plaintiff, Case lies not against the Sheriff though he take insufficient Bail, but must be amerced if the Defendants do not appear. Mod. Rep. 227. Antea. and afterwards suffered him to go at large. The Defendant pleads the Statute of 23 H. 6. cap. 10. that the took good and sufficient Bail within the County according to the Statute. The Plaintiff replies, that he let him go at large, absque hoc that he took good and sufficient Bail within the County. To this the Defendant demurred. This Case was argued this Term by Sergeant Skipwith and Baldwyn for the Defendant, and by Sergeant Barrel and George Strode for the Plaintiff; and in their Arguments for the Defendant it was said, Ex parte Def. Sid. 23. 2 Sand. 60. Cro. Eliz. 624. That the Plaintiff in this case cannot maintain an Action of Escape, for where the Sheriff takes Bail, no Escape will lie against him. 1. Because he is compellable by the Statute to let the Defendant to Bail. 2. If he have not the Defendant ready at the return of the Writ, he may be amerced, which is the proper remedy. 3. This precept of letting the Defendant to Bail, being by Act of Parliament, is intended by the direction of the Plaintiff himself, because all people are Parties to the making of an Act of Parliament. Many Actions have been brought against Sheriffs, upon Suggestions that no Bail have been taken, Antea, Page and Tulse. and for which an Action on the Case will lie; but where there is Bail taken, the Sheriff hath done his duty which he is commanded to do by the Statute; and if the Defendant doth not appear, the Sheriff is to be amerced, and he is the proper judge of the Bail; the Plaintiff is no ways concerned therein whether good or bad. At the Common Law the Defendant was to continue in Prison till he had satisfied the Plaintiff, to whom no benefit was intended by this Statute, but rather an ease to the Defendant, that he should be from thence discharged, giving good Bail; and the reason why the Statute mentions such Bail is in favour of the Sheriff also, Cro Eliz. 672. to secure him from Amerciaments; the Bail being then for his Indemnity, he is the sole judge both of their persons, number, and ability, for the Statute requires two Sureties, and that they shall be Men within the County; yet if there is but one, and he not of the County, and if the Bond taken by the Sheriff for the appearance of the Defendant be but 40 l. and the Debt due to the Plaintiff be 400 l. 'tis well enough, 2 Cro. 286. because the Statute doth not restrain him to any Sum or Sureties, for he may take what Sum he please to force the Defendant to appear. And when this Security is taken, the Sheriff is neither compellable to assign it to the Plaintiff, or he to take it. 'tis true, he doth usually assign it, but that is to discharge himself of the Amerciaments, which is the way that the Plaintiff should pursue where he doth imagine the Bail to be insufficient. If therefore this Statute was made for the benefit and ease of the Defendant, the Security therein directed is for the indemnity of the Sheriff; and therefore if no Action will lie against him for taking of insufficient Bail, 'tis as reasonable that no Action should lie against him when he hath taken Bail, which he is compelled to do, and so the Traverse in this Case is immaterial, and judgement ought to be given for the Defendant. On the other side it was argued, Ex parte Quer. That an Action of Escape would lie against the Sheriff, if he did not take good Bail, which matter may be traversed; and though here if the Defendant had rejoined, the Issue had been, whether sufficient Bail within the County or not, yet that part of the Issue had not been material, for the only matter had rested upon the sufficiency or insufficiency of the Bail in general. Like a Case adjudged in Mich. 14 Car. 2. in B. R. where a Woman had power given her by her Husband to make a Will in the presence of two credible Witnesses: It was pleaded that she made a Will in the presence of A. and B. credible Witnesses, and Issue was thereupon joined, Antea. and it was found to be made in the presence of C. and D. who were credible Witnesses, and this was held to be good, because the substance was found, Viz. That it was made in the presence of two credible Witnesses. The Defendant therefore here ought to have taken good and sufficient Bail to bring himself within the Statute, and that is traversable, and the Plead are well enough, for if there be good Bail, 'tis not material in what County they live. Upon the first Argument of this Case, the Lord Chief justice inclined that an Action of Escape did lie at the Common Law against the Sheriff; for it was clear that he was to keep the Party arrested in Prison till the Debt was satisfied, and that if he had gone at large, it had been an Escape; the Sheriff than hath no excuse but by this Statute, and to entitle himself to any benefit thereby, he must pursue the very directions therein prescribed, and therefore aught to take good and sufficient Bail, for otherwise the Statute would be eluded, if it be left in his power to take what Bail he pleases; and he was of Opinion, that the Plaintiff had an Interest in the Security, and therefore the Sheriff was liable, if it was not good when first taken, but not if by any accident afterwards the Bail miscarry or become insolvent. And justice Wyndham was of the same Opinion, that the Sheriff was liable; he differed only as to the manner of the Action, which he held should be a special Action on the Case, setting forth the whole matter, and alleging that the Defendant did not take sufficient Bail. justice Atkyns said, the Case depends upon the construction of that * 23 H. 6. cap. 10. Statute, which is very obscure, and the Opinions various which have been upon it; 'tis plain the Sheriff is compellable to take Bail, and that an Action lies against him if he refuses such as are sufficient when tendered; but the question was now whether it will lie against him fortaking those who are insufficient; and as to that he said that many Authorities were in our Books, that the taking of Bail is left to the Sheriff's discretion, and he is thereby to provide for his own indemnity; for he must return a Cepi Corpus upon the Writ, he cannot return that he let him to Bail according to the Statute, and therefore inclined that the Action did not lie. Scroggs justice contra. He said that this Statute designed the benefit of the Creditor, that he might either get the Sheriff amerced or have an Action, in both which Cases he might indemnify himself by the Security he had taken. 'tis true, he may let the Party to Bail, but 'tis sub modo, it must be upon good Bail; and if the Sheriff be judge of the Security, 'tis an Argument that he is liable, for if he was not in danger, he need not take Security. But afterwards upon the second Argument, the Chief justice and the whole Court were of Opinion, that judgement should be given for the Defendant. North Chief justice. The Common Law was very rigorous as to the execution of Process; the Capias was ita quod habeas the Body at the day of the Return, and if the Sheriff had arrested one, it had been an Escape to let him go. Before the making of this Statute the Sheriff usually took Sureties for the appearance of the Prisoner, and by this means used great Extortion and took great Sums of Money; to prevent which Mischiefs this Statute was made and so designed. 1. For the ease of the Prisoner, the Sheriff being now compellable to take Security, which he was not obliged to do before. 2. To prevent Extortion, and therefore directs that a Bond shall be taken in such manner and with such conditions as is therein mentioned. But the Plaintiff since the Statute is much in the same condition as before, for he is to make the same Return of Cepi Corpus: 'Tis true, he may now let him go upon Bail, but as to the Creditor he is to have him in Court to answer his Suit as before, and shall be amerced if he doth not appear at the Return of the Writ, so that tho' this Statute be an ease to the Defendant, yet 'tis a burden to the Sheriff, who runs a greater hazard since the making of this Act than before; because than he might keep him in prison till the Debt was satisfied, but now he is obliged to let him at large upon Bail, from whom he is directed to take a Bond, which he may keep in his own hands to indemnify himself: The Court can only amerce him, if the Defendant do not appear at the Return of the Process, and 'tis not material to the party whether the Sheriff take one or more Security, that being in his discretion; some he must take, for otherwise 'tis directly in opposition to the Statute; neither is it material to the party whether they are such as are sufficient, for if they are not, and the Defendant is thereupon discharged, this will not amount to an Escape; because nothing is done but what is pursuant to the Statute, and therefore he is no otherwise chargeable than by Amerciaments. The Statute was made and intended for the benefit of the Debtor, not of the Creditor, and there might be some colour for the Action if the Sheriff might Return that he let him to Bail, for than it might have been necessary to have alleged the sufficiency of them, which might have been traversed; but now he must pursue the substance of the Statute so far as to take Bail; he is the proper judge of the sufficiency, and when the Bail is taken he must return a Cepi Corpus, so that he is only to be amerced till he bring in the Body, but an Escape will not lie against him. Long's Case. ONE Long was arrested in the Palace-yard, Privilege of an Attorney. not far distant from the Hall Gate, the Court being then sitting, and being an Attorney of this Court, he, together with the Officer, was brought into Court, and the Officer was committed to the Fleet, that he might learn to know his distance; and because the Plaintiff was an Attorney of the Court of Kings-Bench, who informed this Court, that his cause of Action was for 200 l. therefore the Court ordered that another of the Sheriff's Bailiffs should take charge of the Prisoner, and that Mr. Robinson the Chief Prothonotary should go along with him to the Court of Kings-Bench, which was done, and that Court being informed how the Case was, discharged the Defendant upon filing of common Bail. The Writ upon which this Long was arrested was an Attachment of Privilege, which the Court supposed to be made on purpose to oust him of his Privilege; for there was another Writ against him at the Sheriff's Office at the Suit of another person. The Countess of Northumberland's Case. Knight's must be of the Jury where a Peer is concerned. ADjudged that where a Péer is Party either Plaintiff or Defendant, two or more Knights must be returned of the jury; and it was said that in Cumberland there was but one Freeholder who was a Knight, besides Sir Richard Stote, a Sergeant at Law; and the Court were of Opinion that rather than there should be a failure of justice a Sergeant of Law ought to be returned a juryman, for his Privilege would not extend to a Case of necessity. Bell versus Knight, In Banco Regis. Smith's Forges are chargeable with the Duty of Firehearth IN an Action of Trover; Upon Not Guilty pleaded the jury found a special Verdict, in which the Point was upon the Construction of the Statute of 14 Car. 2. c. 10. for the establishing of an additional Revenue upon the King, his Heirs and Successors for the better support of his and their Crown and Dignity, by which it is Enacted, That for every Firehearth and Stove in every House the yearly Sum of 2 s. shall be paid to the King, other than such as in the said Act are exempted: Then comes a Proviso which saith, That this Act shall not extend to charge any Blowing House, Stamp, Furnace or Kilne, etc. And the Question now was, whether a Smith's Forge shall be charged with this Duty. Winnington Solicitor General conceived that all Fire-Hearths are liable within the Body of the Act, and there is nothing to exempt them but what is in the Exception; and that a Smith's Forge cannot be called a Blowing House within the intent of the Act, notwithstanding the jury have found that Smiths use Bellows to blow their Forges: For by Blowing Houses such Houses are meant as are in Staffordshire and Suffolk for the making of Iron, these were the Blowing-Houses intended by the Parliament to be excepted, and no other; for if Smith's Forges had been meant thereby, those would have been inserted in the Proviso as well as the other things therein mentioned. Words are to be taken in a common Understanding; for if a Traveller should inquire for a Blowing House, no Body would send him to a Smith's Forge. By the Opinion of the whole Court, Curia. it was adjudged upon the first Argument that Smith's Forges are liable to this Duty; and so the Solicitor said it had been lately adjudged in this Court by the Opinion of Twisden, Wyld and Rainsford; and that my Lord Chief justice Hale was of the same Opinion; but Twisden said that neither the Chief justice or himself gave any judgement upon the Merits, but upon a Point in Pleading. Stroud versus the Bishop of Bath and Wells, and Sir George Horner. In Communi Banco. IN a Quare Impedit the Plaintiff alleges that Sir George Horner was seized in Feé of the Manor of Dowling, Traverse shall not be upon a Traverse, etc. Mod. Rep. 230. to which the Advowson was appendent, and that being so seized he presented one Harding, and then granted the next Avoidance to the Plaintiff. That the Church became void by the death of the said Harding, and that now it belonged to him to present. The Bishop pleads that he claimed nothing, but as Ordinary; and the Incumbent pleads that at the time of the bringing of this Writ the Church was full by the Collation of the Bishop upon a Lapse. The Plaintiff replies that Sir George Horner being seized in Fee of the said Manor of Dowling, to which the Advowson of the Church was appendent, did tali die & anno apud, etc. present him as Clerk absque hoc that the Church was full by Collation. The Defendant rejoins protestando that the Church was full tali die; and for Plea saith that it was full upon the Collation of the Bishop, absque hoc that Sir George Horner did tali die & anno, etc. present the Plaintiff as his Clerk, and so traverseth the Inducement which the Plaintiff had made to his Traverse; and to this the Plaintiff demurred. And Sergeant George Strode took three Exceptions to this Rejoinder. Ex parte Quer. 1. That when the Defendant pleads a Matter in Barr, and the Plaintiff hath taken a Traverse upon that, the Defendant should then take Issue upon that Travers, and so have maintained his Bar, Vaugh. 62. 1 Sand. 21, 22. from which he had departed here by traversing another Matter. In a Quare Impedit the Plaintiff declares that Sir Thomas Chichely granted an Advowson to one East and another in Feé, to the Use of the Wife of the Plaintiff for her jointure, and that she ought to present. The Defendant pleads that he is Parson imparsonee ex praesentatione Regis, for that Sir Thomas Chicheley died seized as aforesaid of the Manor and Advowson held in Capite by Knight's Service, which descended to his Son an Infant, and by Office found of the Tenure and descent the King was seized, and presented him, absque hoc that Sir Thomas granted to East. The Plaintiff replies, Non habetur tale Recordum de inquisitione; and upon Demurrer it was held that this Traverse of the Inquisition was not good; Hob. 104. 1 Inst. 282. b. Vaugh. 62. for there shall not be a Traverse upon a Traverse but where the Traverse in the Bar is material to the Title of the Plaintiff, and in such Case he is bound up to it, Cro Car. 104, 105. Antea. Yelv. 122. 2. In his Traverse he hath made the Time parcel of the Issue, viz. absque hoc that tali die & anno praesentavit, whereas it should have been modo & forma only, and so is the Case of Lane and Alexander, 2 Cro. 202. where the Defendant entitled himself by Copy of Court of Roll, 44 Eliz. The Plaintiff replies that a Copy was granted to him 1 Junii 43 Eliz. The Defendant maintained his Bar and traverseth the Grant 1 Junii modo & forma; and upon a Demurrer it was said that the rejoinder was not good, because the day and year of granting of the Copy was not material, if it was granted before the Defendant had his Copy; and so the Traverse aught to have been absque hoc that the Queen granted modo & forma. 1 Sand. 14. 2 Sand. 295. Cro Car. 501. But it was adjudged that the day ought not to be made parcel of the Issue, and the traversing of it when it ought not so to be, makes it Substance and not Form, so as to be aided by the Statute of 27 Eliz. 3. As the Defendant hath joined they can never come to an Issue, for he concludes his Traverse Et hoc paratus est verificare, unde petit Judicium, whereas he should have concluded to the Country. Ex parte Def. Barton Sergeant; admitting the Plead are not good, yet if the Plaintiffs Count is so likewise, he cannot have judgement; and that it was so, he said appears in that the Plaintiff had not set forth a sufficient Title; for he hath alleged that Sir George Horner was seized in Fee, and presented the Plaintiff, who was instituted and inducted, Old Nat. Br. 25. 1 Inst. 249. but doth not say that the Presentation was tempore pacis, and therefore it shall be presumed most strongly against himself to be tempore belli, and a Presentation must be laid tempore pacis, and so is the Writ of Assize of Darrein Presentment, F. N. B. 31. The Court held that the Plead were not good, and that the Count was good; for 'tis true, if a Man count that he and his Ancestors were seized in Fee of an Advowson, but declares of no Presentation made by him or them; or if he declare of a Presentation without an Estate, in both Cases it is naught, and good Cause of Demurrer; Vaugh. 57 Hob. 101. but here the Count is both of an Estate and a Presentation. And this difference was taken, if a Man gets a Fee by Presentation, which is his Title, he must allege it to be tempore pacis; but if it be in pursuance of a Right, as if an Advowson be appendent to a Manor, and he who hath Right to the Manor, presents, such Presentation is good in time of War; and so judgement was given for the Plaintiff. Stevens versus Austin. ADjudged, that if a Man hath Common for a certain number of Cattle belonging to a Yard Land, he need not say Levant upon the Yard Land; sed aliter, if it were for a Common sans number. The Master, Warden and Company of Ironmongers versus Naylor, and others, Defendants. In B. R. IN Trespass. The jury found a special Verdict; Jones 85. 1 Ventris 311. they find several Acts of Parliament, viz. 14 Car. 2. cap. 10.15 Car. 2. cap. 13. and another Act for the better direction of the collecting of the Duty arising by Hearth-Mony by Officers to be appointed by the King; and this was the Act of 16 Car. 2. cap. 3. which provides, That if the Party refuses to pay the Duty by the space of an hour, that then the Officers with the Constable may distrain. They find that the Company was seized in Fee of five Messages in which were 35 Fire Hearths in the Month of April, 1673. And that the Company did never finish these Messages, and that from the time of the building they stood all void, and unoccupied by any Tenant or Tenants whatsoever. Then they find that the Collectors were lawfully authorised, and that such a day they demanded the Duty for the Fire-Hearths in each of the said Messages, which they also demanded of the Company, and which they refused to pay, and thereupon they took the distress and kept it till the Company paid the said Duty, and so make a general Conclusion, etc. The Question was, whether the Owner of a new House uninhabited from the time of the building thereof aught to pay this Duty during all that time? Mr. Pollexfen and Mr. Sympson argued that they shall not be chargeable with this Duty; their general Reason was, because no Duty should arise to the King without some benefit to the Subject. And as to that it was said, that in this Case both the Revenue of the Crown and the Property of the Subject are concerned, from which, as from a Root, all these Impositions arise to sustain the public Charge. And therefore It hath been the way of judges in the Interpretations of Statutes, not only to consider the benefit of the Crown, but to regard what is convenient for the Subject. There are two Reasons for Impositions. 1. Such as are Customs, viz. Tonnage and Poundage and private Tolls, which come in lieu of other things, and so are quid pro quo. 2. Subsidies or Grants from the People, which naturally arise in some proportion from a benefit to the Subject. And under the last of these Reasons falls the present Duty given by the Act of 14 Car. only to proportion the Revenue to the public Charge of the Crown; and therefore 'tis not to be thought that the Parliament ever intended a Duty to the King where the Subject had no benefit, for ex nihilo nihil fit; and how can it be thought that a Duty should be paid before the Subject hath any Rent, which is the Mother of the Duty; for if a Man expends 1000 l. in building, which is all he is worth, and the Houses should happen not to be let, how can he then raise such a Sum as must be paid to the King? And 'tis an Objection of no weight to say, if this Duty must not be paid till the Houses are let, than the Revenue of the King depends upon a Contingency; because all Duties which come to the Crown do depend upon such. The next thing to be considered is the Act itself, and as to that, 1. It must be taken as an Act which gives a new Duty to the Crown, and thereupon such Construction ought to be made that the Subjects Estate be not charged further than the Words will bear; and for that reason it is to be taken in an ordinary sense, and not to be strained, though it had been in the Case of an old Duty; and for that the * 7 Co. 21. Lord Anderson's Case is a good Authority, viz. The Statute of 33 H. 8. cap. 30. makes all Manors (which descend to any Heir whose Ancestor was indebted to the King by Judgement, Recognisance, Obligation or other Specialty) chargeable for payment of the Debt. Tenant in Tail is bound in a Recognizance to S. who is attainted; then Tenant in Tail dies and his Issue aliens bona fide, the King cannot extend the Lands so sold, because the Act shall not be construed to mean all Recognizances for the King's Debts though the Words are general enough; and though 'tis not said which way the Debts shall come to the King, either by Forfeiture, Attainder, etc. yet they shall be taken in an ordinary sense, viz. such debts as were due to the King originally; for which reason it has been always held where an Act gives any thing to the King and lays a Charge upon the Subject, in such Case it ought to have a moderate construction. And that this Duty is a Gift cannot be denied, for 'tis called so in the very Act, therefore such aught the Construction to be, and the rather because it is more for the King's Honour it should be so; and both in this Case as well as in Constructions of his Grants the Law hath more regard for his Honour than for his Profit. 2. This being so called, a Duty or Tax by the very Words of the Act, doth in the natural sense import a proportion out of that in which the Subject hath a benefit; and it will be scarce found that there hath been a general Tax given to the King where the Subject has rather received a loss than any profit out of the thing taxed, because it would be very hard to pay where a Man cannot receive. In the Case of Tonnage and Poundage provision is made that the Party shall have Allowance if the Goods be lost by Piracy, which was mentioned to show how unlikely it was that the Parliament should intent a Duty where the Subject had a loss. Ever since the making the Statute of 43 Eliz. cap. 2. Houses that lay void and untenanted have neither paid to Church or Poor, which also shows how the Usage hath been in Cases almost of the like nature. The next thing considered were the Clauses in this Act of 14 Car. 2. cap. 10. 1. The first Clause gives a Duty, viz. That every Chimney and Stove shall pay 2 s. 2. The next Clause is to bring this Duty into a way of Charge, viz. That every Owner or Occupier shall give unto the Constable an account of the number of Hearths in Writing, and the Constables to transmit such Accounts to the Sessions, there to be enroled by the Clerk of the Peace, and a Duplicate to be sent into the Exchequer. From which it is to be observed that where mention is made of bringing this Duty into a Charge, both Owners and Occupiers are named, but the Owner is not named in any place where the payment of the Duty is mentioned, but the Occupier only; so that from the very intent and reason of the Act he cannot be chargeable. The Account thus transmitted is to charge the Inheritance, and therefore it concerns the Owner to look after the Charge; but for empty Houses he cannot be charged, because the Act takes no notice of them in the Clause of Payment, but are purposely omitted that being laid on the Occupier, and this appears by the Proviso which is strongly penned for the Subject. Viz. Provided that the Payments and Duties hereby charged shall be charged only upon the Occupier for the time being, etc. and not on the Landlord who let and demised the same; so that by the Body of the Act every House is charged, which being general might have given some colour to charge the Owner, but by the Proviso the Payment is restrained to the Occupier, and if there be no such, there shall be no Payment. It was said that it cannot be insisted upon that an Owner is an Occupier, because the legal acceptance of the Word Occupation doth only intent an actual Possession and not a Possession in Law, and such is the meaning of the Statute by charging the Occupier for the time being. If therefore the Proviso extends to Cases where Tenants run away and pay no Rent, (as it certainly doth) because there is no Occupier than in being; what difference can there be between that and this Case where the Landlord in both hath no Rent? for if he shall not pay where he cannot receive Rend, why should he pay where he hath none to receive? And that this was the meaning of the Parliament may further appear by a Clause in the Act of 16 Car. 2. cap. 3. made for collecting this Duty by Officers appointed by the King, which doth not enlarge the former Statutes, and by which 'tis Enacted, That if any Occupier shall leave his House before any of the half yearly Feasts, whereon this Duty is appointed to be paid, that the next Occupier shall be chargeable with the same for the said half year. Which Clause had been altogether vain and of no use, if empty Houses had been chargeable with this Duty; for to what purpose was it to charge a succeeding Occupier when the House itself, though untenanted, was chargeable before? In this Act also, which supplies the defects of the former, this Duty is made payable unto the Officer upon demand at the House where the same shall arise and grow due, and that in case of refusal by the space of an hour the Officer may distrein, which shows a Demand must be where there may be a Refusal, and no Refusal can be where there is no Occupier. There is also another Clause which mentions both Owner and Occupier in this Act, and which saith, That no Proprietor, Owner or Occupier, shall be molested or charged, unless within two years after the Duty accrued; so that wherever a charge is laid, or an ease is given to the Subject, the Word Occupier and sometimes both Occupier and Owner promiscuoslly are used; but where a payment is to be made, the Owner is never mentioned, and if so, nothing shall be intended within either of the Statutes, to enlarge this Duty upon the Subject, beyond the Words and plain meaning thereof. 2. There is another Point in this Case which concerns the King and all the People of England, that is, whether the Defendant here can be charged with a Distress (supposing this Duty is to be paid to the King) before any account of these Hearths is transmitted into the Exchequer, which first ought to be done; or otherwise the consequence will be, that the Officer may demand and take as much as he will at his pleasure, and the King may be likewise prejudiced in his Revenue; for as the Collector may have from the Subject more than he ought, and more than he is empowered to take by the Law, so he may pay the King less. The Act directs, That an Account shall be taken by the Officers, and examined by the Constables; then to be transmitted to the Sessions, there to be enroled, and from thence sent into the Exchequer; now what occasion was there of all this solemnity, if that the King was entitled to a Distress upon a bare refusal? This being a Rend Charge upon a Man's Inheritance, the King shall not be entitled to it but by matter of Record; for he cannot take or part with any thing, neither can he have any Estate or Profit rendered him out of another Man's Estate, but by matter of Record; so that it seems by the Act that this account is necessary to be transmitted into the Exchequer; and that the King is not entitled to a Distress for this Duty until that be actually done, which is not only matter of Information to the Crown, but in some measure entitles him to it, because there is a Penalty of five pounds laid upon the Officer, who shall neglect to bring in such account, which shows that the Subject ought not to be charged before; for which reasons judgement was prayed for the Plaintiff. Ex parte Def. But on the other side it was argued by Mr. Holt and the Attorney General, that empty Houses should pay this Duty: For the Attorney General said, that the Words in the Act were so express, that he was of Opinion that the very reading of them would clear the Point in question. In their Arguments two things were considered upon the Statute of 14 Car. 2. 1. First the general Clause which gives the Duty in the Body of the Act. 2. The discharge in the Proviso. And if this be in the Body of the Act, and not excepted in the Proviso, than the Duty is to be paid; and as to that it was said, that this Duty was given in general Words, by which it appears, that there was a design and intent to charge empty Houses, for every dwelling House, Edifice, or House whatsoever is to pay this Duty; and that if every House, why not an empty House? 'Tis true, a Dwelling House is not a House wherein there hath not been an Inhabitant, but wherein some body doth actually live; and if a Man furnishes a House very well, if 'tis not inhabited, it is notwithstanding an empty House, and such a House as to some purposes in the Law is not a dwelling House; for 'tis not a Mansion House, so as to make it Burglary for the breaking of it open. By the second Clause, Every Owner or Occupier is to subscribe the Account to be sent into the Exchequer, by which it appears that those Words Owner and Occupier are not there used in a different sense, for if the Occupier were only liable, the Owner need not look after the signing the account of every Hearth. The third Clause takes notice, That if it should happen there be no Occupier, than the Officer may go into the empty House to examine if the account given him be true; now if an account is to be taken of such Houses as are charged by this Act, and an account is directed to be taken of empty Houses, than such empty Houses must be charged; and this seemed to them to be the intent and meaning of the Parliament, for there being a Return to be made of empty Houses, if such had not been intended to be charged, they would have directed a Return also to have been made of the non-inhabitancy. And therefore they thought that something more than an Occupier was here meant, for otherwise the Word Owner had not been put in; the meaning of which must be that dwelling Houses come within the charge of Occupiers, and empty Houses within the charge of the Owners. Then as to the Proviso, That the Duty hereby arising shall be charged only upon the Occupiers and Dwellers of such Houses, their Executors and Administrators, that can in no sort extend to discharge an empty House, because 'tis not the subject matter of the Proviso; for the design and purpose of it was not to discharge the Duty, but to transfer the charge upon the Tenant where the House was inhabited; for if a contrary construction should be made, than no Duty should be paid at all by the Owner himself if he should live in his own House. In the Case of a Modus decimandi 'tis payable by the Occupier and Possessor of the House, and the Landlord is never charged but where there is no Occupier. As to the Objection, That 'tis hard to pay a Duty where a Man has no Profit; it was answered, That the Act took care that Men should not stop up their Chimneys when once made, and that this Duty was paid for many Chimneys which were never used, and what Profit can a Man have of a Chimney he never useth? If there had been an Act that so much should be paid for every Window, 'tis all one whether it had been for profit or pleasure, or whether the Window had been used or not; and there is as much reason that a Man should pay for Houses never Inhabited, as for such as have been Inhabited and are afterwards without Tenants. This Act ought therefore to receive a favourable Construction; the Preamble whereof mentions that it was for the increasing of the King's Revenue, which is pro bono publico, and which is for the Peace and Prosperity of the Nation, and the protection of every single person therein; and though a particular Inconvenience may follow, the Party ought to submit. When a Man builds a House, he proposes a Profit, and 'tis not fit the King's Duty should be contingent and depend till he has provided himself of a Tenant. Object. As to the other Objection that was much relied on, viz. where the Act speaks of an Account to be given, it mentions both Owner and Occupier; but where it directs the Payment of the Duty the Occupier only is named, by which it was inferred that he alone was chargeable. Answ. In 16 Car. 2. cap. 3. Owner, Proprietor and Occupier are used promiscuously, wherein it is provided that they shall not be charged unless within two years after the Duty accrued; now if the Owner was not chargeable, why is he mentioned there? As to the second Point, they conceived that the Duty being payeable to the King, he had a remedy by distress before the Account was certified into the Exchequer; for the Return was to inform the King what advantage he maketh of his Revenue, and no Process issued upon it; besides the Act vests the Duty in him from Lady-day 1662. And by reason of that he may distrain. The King hath no benefit by returning of the Account, that being only intended to prevent his being cheated, so that 'tis not to entitle but to inform him; 'tis only to return a just and true account; not but that it may be levied, and the King entitled before; and 'tis no inconvenience to the Subject, if there be no such Account returned, for if the Officer distrain for more Hearths than in truth there are, the Subject has a proper remedy against him. The King suffers when Returns are not made of such Duties as he ought to have for the support of his Dignity; and because he is liable to be defrauded in the managing of his Duty, is it reasonable that he should lose all? As to what was said of the Kings taking by matter of Record; 'tis true, if he divest an Inheritance, as in case of Attainder, it must be by Record; but here the very Duty is given to him by the Act itself, which makes it a different Case. If the King should be seized in Fee of a great Wast, which happens to be improved by his Tenants, and thereby Tithes become due, it may be as well said, that he shall have no Tithes without Record, as to say he shall have no Hearth-Mony for Houses newly erected, whereby his Revenue is increased. For which Reasons judgement was prayed for the Defendant, and upon the second Argument judgement was given accordingly for him, Curia. That empty Houses are subject and liable to this Duty. Astry versus Ballard. IN an Action of Trover and Conversion for the taking of Coals, upon Not-Guilty pleaded, Grants must be taken according to common intendment. Jones 71. the jury found a special Verdict. The Case was thus. Viz. That one J. R. was seized in Fee of the Manor of Westerly, and being so seized did demise all the Messages, Lands, Tenements and Hereditaments that he had in the said Manor, for a Term of years to N. R. in which demise there was a recital of a Grant of the said Manor, Messages, Lands, Tenements, Commons, and Mines, but in the Lease itself to R. the Word Mines was left out. Afterwards the Reversion was sold to the Plaintiff Astry, and his Heirs by Deed enroled; and at the time of this demise there were certain Mines of Coals open, and others which were not then open; and the Coals for which this Action of Trover was brought, were digged by the Lessee in those Mines which were not open at the time of the Lease; and whether he had power so to do, was the Question. It was said, That when a Man is seized of Lands wherein there are Mines open, and others not open; and a Lease is made of these Lands in which the Mines are mentioned. Antea. 'Tis no new Doctrine to say, that the close Mines shall not pass; men's Grants must be taken according to usual and common intendment, and when Words may be satisfied, they shall not be strained farther than they are generally used, for no violent Construction shall be made to prejudice a Man's Inheritance, contrary to the plain meaning of the Words. A Mine is not properly so called till it is opened, 'tis but a Vein of Coals before; and this was the Opinion of my Lord Coke in point, in his first Inst. 54. b. Where he tells us, 5 Co. 12. Sanders Case Roll. Abr. 2 part 816. that if a Man demises Lands and Mines, some being opened and others not, the Lessee may use the Mines opened, but hath no power to dig the unopened Mines, and of this Opinion was the whole Court; and justice Twisden said, That he knew no reason why my Lord Coke's single Opinion should not be as good an Authority as Fitzherbert in his Nat. Br. or the Doctor and Student. Ipsley versus Turk. IN a Writ of Error upon a judgement in an Inferior Court, What is admitted in pleading shall not be assigned for Error. Jones 81. the Error assigned was, That the Mayor, who was judge of the Court, did not receive the Sacrament at any Parish Church, nor file any Certificate, so that he was not Mayor; and judgement being given against the Defendant before him, it was therefore Coram non Judice, like the Case of Hatch and Nichols Roll. Abr. 1 part tit. Error 761. Where, upon a Writ of Error brought upon a judgement in an Inferior Court, the Error assigned was, that the Style of the Court was Curia tent' coram J. S. Seneschallo, who was not Steward, and that was held to be an Error in fact. But on the other side it was insisted that this was not Error, because the Acts of the Mayor should not be void as to Strangers. The Statute of 25 Car. 2. cap. 2. for preventing of dangers which may happen from Popish Recusants, disables the Party who is not qualified according to the Act to hold an Office, and if he execute the same, afterwards upon complaint made, and Conviction he shall forfeit 500 l. so that as to himself, whatever he doth in his Office is void; but it was never the intent of the Act to work a Mischief or Wrong to Strangers, for the Law favours what is done by one in reputed authority; as if a Bishop be created, who upon a Presentation made admits a Parson to a Benefice or collates by Lapse, the former Bishop not being deprived, or removed, such acts are good and not to be avoided, Cro. Eliz 699. Cro Car. 97. 2 Cro. 260. But admitting it to be an Error, it cannot now be assigned for such, because the Parties in Pleading have allowed the proceed to be good upon Record, and there is judgement against the Defendant, but if he had been taken upon that judgement, he might have brought an Action of false Imprisonment, 2 Cro. 359. Cro. Eliz. 320. Wild justice, You shall not assign that for Error which you might have pleaded, especially having admitted it by pleading; and one Musgrave's Case was cited, which was, that there is an Act of Parliament which lays a Tax upon all Law proceed, and makes them void, if the King's Duty be not paid, and it was adjudged, That if the Duty was not paid, but admitted in pleading, you shall not afterwards allege what before was admitted, viz. That the Duty was not paid. Upon a Writ of Error in Parliament it cannot be assigned for Error, that the Chief justice of the Kings-Bench, had not taken this Oath; the same might be also of a Writ of Error in the Exchequer Chamber, for an Error in Fact cannot be there assigned; Sid. 253. but at the last the judgement was Reversed: See the Reasons thereof by the Chief justice Jones in his Reports, folio 81. Higginson versus Martin, in C. B. IN an Action of Trespass and false Imprisonment, If Cause of Action doth not arise within the Jurisdiction, tho' Judgement is given below, an Action will lie here. the Defendant justifies by Process issuing out of the Court of Warwick, upon a judgement obtained there, and sets forth, that there was a Plaint there entered in placito transgressionis, to which the Defendant appeared, super quo taliter processum fuit, that judgement was given against him, upon which he was taken and Imprisoned. The Plaintiff replies, That the Cause of Action did not arise within the jurisdiction of that Court. The Defendant rejoins, that the Plaintiff is now estopped to say so, for that the Declaration in the Inferior Court against the now Plaintiff, did allege the cause of Action to be infra jurisdictionem of the Court, to which he pleaded, and judgement was given against him: The Plaintiff demurs. And Newdigate Sergeant took Exceptions to the Plea. 1. Ex parte Quer. 'Tis said a Plaint was entered in placito transgressionis but 'tis not said what kind of Trespass it was, whether a clausum fregit or other Trespass. 2. 'Tis said that the Defendant appeared, super quo taliter processum fuit, that judgement was given for the Plaintiff, Antea. and no mention was made of any Declaration; and the pleading taliter processum est in an Inferior Court, is not good. 3. The justification is ill, because the Inferior Court had no jurisdiction, and so the Proceed are coram non Judice, for the Plaintiff in his Replication saith, That the Trespass for which the Recovery was had in the Court of Warwick, Moor 422. Latch 180. Cro. Jac. 184. was done at a place out of the jurisdiction of the Court, which the Defendant hath admitted, by relying on his Plea by way of Estoppel. 4. It did not appear by what Authority the Court at Warwick was held whether by Grant or Prescription. These Exceptions were answered by Sergeant Hopkins, Ex parte Def. and first he said, That the Plaintiff there sets forth that levavit quandam querelam in placito transgressionis, which was well enough. Secondly, taliter processium fuit is the shorter and better way of Pleading, and therefore in a Scire Facias nothing is recited but the judgement; 'tis true, in a Writ of Error the whole Record must be set out, but that is not necessary here. Thirdly, 'tis too late now to question the jurisdiction of the Inferior Court, after the Party hath admitted it below; he ought first to have pleaded to the jurisdiction, but now is Estopped by his own admittance there; and since judgement is given upon it, 'tis not now to be questioned; but however, this being in the Case of an Officer, if it was out of the jurisdiction he is bound to execute the Process of the Court, and so this is a good excuse for him, Dyer 61. 10 Co. 77. But let the Plead be good or bad, if the Declaration here be ill, the Plaintiff cannot have judgement; and that it was so, he said that the Writ alleged an Imprisonment generally, but the Count an Imprisonment donec he paid 5 l. 10 s. which is variant, and the Prothonotaries said, that the Writ used always to mention donec, etc. Curia. But the Court were all of Opinion, that the Count was well enough, for there was no matter therein contained which was not in the Writ; the Imprisonment was the Gist of the Action, and the donec, etc. might have been given in Evidence, because 'tis only an aggravation and a consequence of the Imprisonment, so that the Count is not larger, but more particular than the Writ: And as to the two first Exceptions, the Court was also of Opinion, that there was no difficulty in them, or in the last Exception, but thought the Plea was well enough as to those: And they also agreed that the Officer in this Case was to be discharged, for though the Process be erroneous, yet he is to obey and not to examine, 2 Cro. 3. Weaver versus Clifford: The great doubt in this Case was upon the third Exception as to the point of jurisdiction, Sid. 151. Latch 181. and whether the other Defendant, who was the Plaintiff below, should be likewise discharged, was the Question. And as to that, the Chief justice, and Wyndham justice were of Opinion, That this was no good justification as to the Plaintiff below; for if the cause of Action did arise without the jurisdiction, of which he is bound to take notice, the proceed quoad him, are all coram non Judice, and he cannot justify the serving of any Process; so that if the Trespass was done out of the jurisdiction of the Court, the Defendant below may bring an Action against the Plaintiff, and is not concluded here by the proceed there, but may allege the cause of Action to arise out of the jurisdiction; and as to his being Estopped by admitting of the jurisdiction below, that cannot be, because an admittance cannot give the Court a jurisdiction where it had none originally, and so he said it was resolved in one Squib's Case, in a special Verdict. He who sues in an Inferior Court is bound at his peril to take notice of the Bounds and Limits of that jurisdiction; and if the Party after a Verdict below prays a Prohibition, and alleges that the Court had no jurisdiction, a Prohibition shall be granted; and 'tis no Estoppel that he did not take advantage of it before, 1 Roll. Abr. 545. But justice Atkins and Scroggs were of another Opinion, they agreed that if an Action be brought in an Inferior Court, if it be not said to be infra Jurisdictionem Curiae they would never presume it to be so, but rather to be without, if not alleged to be within the jurisdiction, and here in the Plea 'tis not shown at all; so that as the Case stands upon the Plea the proceedings are coram non Judice, and there is no legal Authority to warrant them, and by consequence the Officer is no more to be excused than the Party, because also 'tis in the Case of a particular jurisdiction: And so it hath been adjudged upon an Escape brought against an Officer of an Inferior Court, wherein the Plaintiff declared that he had brought an Action upon a Bond against S. in the Court of Kingston, and that he had judgement and Execution, and the Defendant suffered him to escape; this Declaration did not charge the Defendan, because the Bond was not alleged to be made infra Jurisdictionem Curiae; for though such an Action is transitory in its nature, yet the Proceed in an inferior Court upon it are coram non Judice, if it doth not appear to be infra Jurisdictionem, 1 Roll. Abr. 809. though in the Case of a general jurisdiction it might be otherwise. But here the rejoinder doth help the Plea; for the Plaintiff having replied that the Trespass was committed out of the jurisdiction, and the Defendant having rejoined that he had alleged in his Declaration below that the Trespass was done within the jurisdiction, 'tis now all one Plea, and the Plaintiff hath confessed it by his Demurrer; so that in regard it was alleged below and admitted there, 'tis a good Plea both for Officer and Party, and the Plaintiff cannot now take advantage of it, but is concluded by his former admittance, and it shall not be enquired now whether true or false. And as to the taliter processum fuit they all held it well enough, and that there was no necessity of setting out all the Proceed here as in a Writ of Error. And as to the last Exception 'tis said that the Burrow of Warwick is antiquus Burgus, and that the Court is held there secundum consuetudinem, which is well enough. Jones' Case. Common Pleas cannot grant Habeas Corpus in Criminal Cases. IT was moved for a Habeas Corpus for one Jones, who was committed to New Prison by Warrant from a justice of Peace for refusing to discover who entrusted him with the keeping of the Keys of a Conventicle, and for that he had been instrumental to the Escape of the Preacher; he was asked by the justice to give Security for his Good Behaviour, which he also refused, and thereupon was committed. The Chief justice doubted that a Habeas Corpus could not be granted in this Case, because it was in a criminal Cause of which the Court of Common Pleas hath no jurisdiction, and that seemed to be the Opinion of my Lord Coke, Vaugh. 157. 2 Inst. 53. 2 Inst. 55. where he saith it lies for any Officer or privileged Person of the Court. There are three sorts of Habeas Corpus in this Court; one is ad respondendum, Mod. Rep. 235. which is for the Plaintiff, who is a Suitor here against any Man in Prison, who is to be brought thereupon to the Bar and remanded if he cannot give Sureties. There is another Habeas Corpus for the Defendant ad faciend' & recipiend '; as to this the same jurisdiction is here as in the Court of King's Bench; if a person be near the Town by the course of the Court he may be brought hither to be charged and then the Habeas Corpus is returnable immediate; but if he be remote, it must then be returnable in the Court at a certain day; these are the Habeas Corpus' which concern the jurisdiction of this Court, and are incident thereunto. There is another which concerns Privilege, when the Party comes and subjects himself to the Court to be either bailed or discharged, as the Crime is for which he stands charged; and if he be privileged, this Court may examine the Case and do him right; if a private man be committed for a criminal Cause we can examine the Matter and send him back again. Before King James' Reign there was not Habeas Corpus but recited a Privilege, as in the Case of Privilege for an Attorney; so that if this Court cannot remedy what the Party complains, 'tis in vain for the Subject to be put to the trouble when he must be sent back again; neither can there be any failure of justice, because he may apply himself to a proper Court; and of the same Opinion were Wyndham and Scroggs. But justice Atkins was of another Opinion, for he could see no Reason why there should not be a Right to come to this Court as well as to the King's Bench. And that Vaughan, Wild and Archer justices, were of Opinion that this Court may grant a Habeas Corpus in other Cases besides those of Privilege. Afterwards the Prisoner was brought to the Court upon this Habeas Corpus, but was remanded, because this Court would not take Sureties for his Good Behaviour: The Chief justice said that when he was not on the Bench he would take Sureties as a justice of Peace: And Monday, late Secondary informed him that justice Wild when he sat in this Court did once take such Sureties as a justice of Peace. Anonymus. IT was the Opinion of the Chief justice North, In Replevin both are Actors. that in a Replevin both Parties are Actors; for the one sues for Damages, and the other to have the Cattle, and there the place is material; for if the Plaintiff alleges the taking at A. and they were taken at B. the Defendant may plead Non cepit modo & forma, but then he can have no Return; for if he would have a Retorn' Habend ' he must deny the taking where the Plaintiff hath laid it, and allege another place in his Avowry. Sir Osborn Rands versus Tripp. THE Plaintiff was a Tobacconist and lived near Guild-Hall, London; he married the Daughter of the Defendant, New Trial granted. who was an Alderman in Hull, and had 400 l. Portion with her; after the Marriage the Defendant spoke merrily before three Witnesses, That if his Son-in-Law would procure himself to be Knighted, so that his Daughter might be a Lady, he would then give him 2000 l. more, and would pay 1000 l. part thereof presently upon such Knighthood, and the other 1000 l. within a year after: (it being intended when the Plaintiff should by his Trade get an Estate sufficient to qualify him for the Dignity of a Knight.) The Son-in-Law without acquainting the Defendant did about nine Months afterwards procure himself to be Knighted, and brought an Assumpsit for the 2000 l. which was tried before the Chief justice North at Guild-Hall, and the jury gave 1500 l. Damages. And now Sergeant Maynard moved for a new Trial upon the Affidavit of the Defendant that he had found out material Witnesses since the Trial, and that such Witnesses, as he had ready at the Trial, could not get into Court; because of the great Tumult and Disorder there with a Multitude of People, by reason whereof his Council could not be heard from the noise, and when they offered to speak were as often hissed. The Chief justice thought it was a hard Verdict, for he was not clearly satisfied that the Agreement was good, it being only for Words which were spoken by the Old Man when he had but a weak Memory; and thereupon a new Trial was granted, because the Chief justice thought it was fit so to be. Basket versus Basket. Disjunctive Condition, one part is discharged by the Obligee, the other part shall not be performed by the Obligor. Mod. Rep. 264. DEBT upon a Bond with a Condition to make an Assurance of an Annuity of 20 l. per annum to the Plaintiff within six Months after the death of M. B. and if he refuse when requested by the Plaintiff, then to pay 300 l. and if he fail in payment thereof the Bond to be forfeited. The Defendant pleads that all the six Months he was a Prisoner at Morocco in Barbary, and that after his Return he requested the Defendant; and to this Replication the Defendant demurred. And Sergeant George Strode maintained the Demurrer. The Question was, whether the Plaintiff by neglecting to tender a Grant of the Annuity to the Defendant hath not dispensed with the whole Condition; and he held that it was dispensed withal, and that no Request being made the Bond could not be sued at the Common Law, and therefore the Replication was ill. 'Tis not so much a disjunctive Condition to do one thing or another, but the last Clause is a Penalty to enforce the first; for seeing the Annuity is to be but 20 l. per annum for a Life, and yet that 300 l. is to be paid in case that be not granted, this proves it to be only a Penalty, because Annuities at the highest value are but at eight years' purchase, whereas this is fifteen years' purchase, so that the 300 l. could never be intended as a Recompense for the Annuity; neither could the Defendant possibly save the Condition, because the same time is limited both for the Paymenr of the 300 l. and granting of the Annuity, viz. within six Months; and the Plaintiff hath to the utmost time to request the executing the Grant, 1 Sand. 287. and therefore the other cannot pay the Money before. But taking the Case to be that this is a disjunctive Conditions; yet since Conditions are always made in favour of the Obligor, the power of Election even in such Cases is left wholly in him; but according to such Constructions, as would be made for the Plaintiff, the Election is gone from the Defendant, Wright and Bull, Postea. and left in the Obligée; for if he do not request the Annuity, than the 300 l. is to be paid, and this is directly against the Rules of disjunctive Conditions; and the Case of * Cor. Eliz. 396 539. 1 Roll. Abr. 447. Poph. 98. Goldsb. 142. Greeningham and Ewer is express in Point, where the Condition of a Bond was, that if the Obligor delivered to the Plaintiff three Bonds by such a day, or gave him such a Release of them, as the Plaintiffs Council should advise, before the said day, that then, etc. The Defendant pleads nothing as to the delivery of the Bonds, but saith, that the Plaintiffs Council advised no Release; and upon a Demurrer this was adjudged for the Defendant, because in all Obligations with a Penalty the Election is always in the Obligor; and this being a disjunctive Condition each part is likewise in his Election; for if the Obligee should not tender the Release, the other is not bound to deliver the Bonds; and if he should tender it, than the Obligor may either deliver the Bonds or execute the Release, which he pleaseth, 4 H. 7. 4. If a Man enter into Bond with Condition to marry Jane by such a day, and the Obligee marry her before the day, 1 Roll. Abr. 455. the Condition is saved; but 'tis otherwise if a Stranger had married her before that day: The Act of God and the Act of the Obligée in many Cases dispense with Conditions, as 5 Co. 21. b. if a Parson be bound in a Bond conditioned to resign his Church to A. in consideration of a certain Pension agreed on, and the Parson refuses; the Court was of Opinion that he need not resign till he was sure of his Pension by Deed which they held aught to be first tendered unto him. So a Man covenants to grant such an Estate to his Wife or to leave her worth so much Money, if she survive him, if she dies before him the Condition is not broken, though he did not make such Grant: In the Case of Warren and White it was lately adjudged in the King's Bench, that where Warren was indebted to Warner, and White became bound with him to pay the Money before the 25th day of December than next following; but if he did not pay it, that then Warren should appear the next Hillary Term following to Warner's Action; Warren dies after the 25th of December, but before the Term; and it was held that the Bond was not forfeited, 1 Rol. Abr. 451. because the Obligor had Election to do either the one or the other, and the performance of the one becoming impossible by the Act of God, the Obligation was saved. Moor 645. If the Case of Moor and Moorcomb, Cro. Eliz. 864. should be objected, where the Condition of the Bond was, that the Defendant should deliver to the Plaintiff a Ship before such a Feast, or in default thereof pay at the same Feast such a Sum as a third person therein named should adjudge, which third person appointed no Sum to be paid, and yet there it was adjudged for the Plaintiff that it did not dispense with the whole Condition. Which Case he agreed to be Law, because there the valuation and worth of the Ship and the Money to be paid was by the appointment of a Stranger, and the Condition being for the benefit of the Defendant he is to procure the Stranger to make an appointment what Sum should be paid, or to deliver the Goods, otherwise the Bond is forfeited, and he hath expressly agreed to do the one or the other. But this is not like the Case at the Bar, where 'tis not a Stranger, but the Obligee himself that must procure the Conveyance; for 'tis to be advised by his Council, and to be done at his Costs; and therefore in * 5 Co. 23. Lamb's Case it was held that if a Man be bound to give such a Release before such a day as the judge of the Admiralty shall direct; there 'tis no Plea to say that he appointed none, for the judge being a Stranger to the Condition, 1 Roll. Abr. 452. lit. L. placito 6. the Defendant is to apply himself to him, having undertaken to perform it at his peril, which is the same Resolution with Moor's Case in Crook. So that he took it for a Rule in all Cases, that where the Act of God or of the Obligée discharges the Obligor from one part of a disjunctive Obligation, that the Law discharges him of the other; and therefore prayed judgement for the Defendant, Dyer 361. Ex parte Quer. Sergeant Pemberton contra. It appears that one thing or the other was to be done in this Case; for if the Plaintiff demanded and tendered an Annuity, the Defendant was to seal it; and if he did not tender it, than likewise the Defendant was to do something, viz. to pay 300 l. So that the Plaintiff was either to have the Annuity or the Mony. He agreed that where the Obligor hath the Election, if in such Case the Obligée shall wilfully determine it, that the Bond is thereby discharged. But if a Stranger take away the Election, 'tis no discharge, for in such case the other part is to be performed. In this case the Plaintiff hath done no wilful Act to determine the Defendants Election, but all which is pretended is that he hath not done something necessary to be performed, which is, that he hath not made a request. But by his omission thereof, the Defendants Election is not taken away, for though no request was made within the six Months, yet the Defendant might have prepared a Grant of the Annuity himself, and have offered it to the Plaintiff, within the six Months, upon the last part of the day; and if he had thus set forth his case, and alleged that the Plaintiff made no request, nor tendered him a Grant of the Annuity to Seal, this had been a good performance of the Condition, for he had done that which was the substance, which, though it was to be done at the Plaintiffs charge, yet the Defendant might have brought an Action for so much Money by him laid to the use of the other; and the Cases put in the principal Case in Moor 645. are expressly for the Plaintiff in this Case, where the judgement was, That if there be a Statute with a Defeasance, to make such Conveyance as the Council of the Conusee shall direct, the Cognisor must prepare the Conveyance, if the other doth not; and there is a Case put where a thing was to be done at the Costs of the Plaintiff, yet the Defendant did it at his own Charge, which he recovered of the other. North Chief justice, Judgement. and the whole Court were of Opinion that the Plea was good, because the Defendant had the benefit of Election, and the Plaintiff not making the request within the six Months, had dispensed with one part of the Condition, and the Law hath discharged the Defendant of the other part; and they relied upon the Case of Grenningham and Ewer, which they held to be good Law, and an Authority express in the very point. In this Case the Obligee was to do the first act, Viz. To make the request. Where the Condition is single concilium non dedit advisamentum is a good Plea to discharge the Defendant; so here the Condition is but single, as to the Defendant; for though it be disjunctive, yet the Plaintiff hath taken away the benefit of Election from the Obligor of doing the one, and therefore he shall be excused from doing the other. The Pleading as alleged by the Council of the Plaintiff, would not have been a good performance of the Condition, for if one be bound to Convey as the Council of the other shall advise, and he makes the Conveyance himself, this is not such a Deed as was intended by the Parties, and so no performance of the Condition. But however the Defendant need not plead it, for he is not bound so to do. Here if the Plaintiff had requested the Sealing of such a Grant of an Annuity, even the Defendant had liberty either to execute it, or to pay the 300 l. and where the Election is on the Obligors part, neither the act or neglect of the Obligee shall take it away from him; for it would be unreasonable that the Obligee should have his choice, either to accept of the Annuity or the 300 l. when 'tis a known Rule, That all Conditions where there is a Penalty in the Bond, are made in favour and for the benefit of the Obligor, and the 300 l. in this case to be paid upon the refusal of the Defendant to make such Grant, is in the nature of a Penalty to enforce him to do it. The principal Case in Moor 645. was agreed to be Law, but the Rule there put was denied, as not adequate to the present Case, which was, that if by the Act of God, or of the Party, or through default of a Stranger, it becomes impossible for the Obligor to do one thing in a disjunctive Condition, he is notwithstanding bound to do the other. This is true only as to the last Case, but not to the two first; and for an Authority * 5 Co Laughter Case was full in the Point, which is, that when a Condition consists of two parts in the disjunctive, and both are possible at the time of the Bond made, and afterwards one becomes impossible by the Act of God, or of the Party, the Obligor is not bound to perform the other part. And judgement was given for the Defendant. Smith versus Tracy. In Banco Regis. Distribution shall be equally made amongst the Children of the whole and half Blood. Mod. Rep. 209. Jones 93. 1 Ventris 307 IN a Prohibition; The Case was: A Man dies intestate having three Brothers of the whole Blood, and a Brother and Sister of the half Blood; and the Question was whether they shall be admitted to a distribution in an equal degreé. Mr. Holt argued that they were all in aequali gradu, because before the Act of Distribution the Ordinary had power to compel the Administrator to give and allot filial Portions to the Children of the deceased out of his Estate. And by the Civil Law such provision is made for the Children of the Intestate that the Goods, which either the Father or Mother brought to each other at the Marriage, shall not remain to the Survivor, but the use and occupation of them only during Life, for the Property did belong to the Children. By the Statute of 21 H. 8. cap. 5. the Ordinary is to grant Administration to the Widow of the Intestate, or to the next of his Kin, or to both, as by his discretion he shall think good, and in Case where divers persons claim the Administration as next of Kin, which be in equal degree, the Ordinary may commit Administration to which he pleaseth, and his power was not abridged, but rather revived by this late Act, by which 'tis Enacted, 22 & 23 Car. 2. That just and equal distribution shall be made amongst Wife and Children, or next of Kin in equal degree or legally representing their Stocks pro suo cuique jure; and the Children of the half Blood do in the Civil Law legally represent the Father, and to some purposes are esteemed before the Uncles of the whole Blood. 'Tis no Objection to say, that because the Law rejects the half Blood as to Inheritances, therefore it will do the same as to personal Estates, because such Estates are not to be determined by the Common but by the Canon or Civil Law, and if so, the half Blood shall come in for distribution, for this Act of Parliament confirms that Law. Winnington Solicitor General contra. He agreed that before this Act the half Blood was to have equal share of the Intestates Estate; but that now the Ordinary was compelled to make such distribution, and to such persons as by the Act is directed, for he had not an original power to grant Administration in any case that did belong to the Temporal Courts, Sid. 370, 371. but it was given to him by the Indulgence of Princes, not quatenus a Spiritual Person, Hensloes' Case, 9 Co. Bendl. 133. And if he had not power in any Case, he could not grant to whom he pleased. But admitting he could, his power is now abridged by this Statute, and he cannot grant but to the Wife and Children or next of Kin in equal degree or legally representing their Stocks. Now such legal representation must be according to the Rules of the Common, and not of the Civil Law; for if there be two lawful Brothers and a Bastard eigne, and a Question should arise concerning the distribution of an Intestates Estate, the subsequent Marriage according to the Law in the Spiritual Court would make the latter legitimate, and if so a legal Representative amongst them; but this Court will never allow him so to be. But the Court were all of Opinion that in respect of the Father the half Blood is as near as those of the whole, and therefore they are all alike and shall have an equal distribution; and that such Construction should be made of the Statute as would be most agreeable to the Will of the dead person, if he had devised his Estate by Will; and it was not to be imagined if such Will had been made, but something would have been given to the Children of the half Blood: And thereupon a Consultaion was granted. Anonymus. In C. B. FAux Judgement: viz. Sergeant Turner took this Exception, that the Plaintiff in the Court below had declared ad damnum 20 l. whereas it not being a Court of Record, and being sine Brevi the Court could not hold Plea of any Sum above 40 s. and for this Cause the judgement was reversed. DE Termino Paschae Anno 29 Car. II. in Communi Banco. Southcot versus Stowel. Intrat' Hill. 25 & 26 Car. 2. Regis Rot. 1303. IN a Special Verdict in Ejectment; The Case was, Covenant to stand seized, how it differs from a Conveyance at the Common Law. Mod. Rep. 226. Thomas Southcot having Issue two Sons, Sir Popham and William, and being seized in Fee of a Farm called Indyo, (the Lands now in question) did upon the Marriage of his eldest Son Sir Popham, covenant to stand seized of the said Farm to the use of the said Sir Popham Southcot, and the Heirs Males of his Body on Margaret his Wife to be begotten; and for want of such Issue, to the Heirs Males of the Covenantor; and for want of such Issue, to his own right Heirs for ever. Sir Popham had Issue begotten on his Wife Margaret, Edward his Son, and five Daughters, and dies. Thomas, the Covenantor, dies. Edward dies without Issue. And whether the five Daughters, as Heirs general of Thomas, or William their Uncle, as special Heir Male of Thomas per formam doni, shall inherit this Land was the Question. Two Objections were made against the Title of William, the uncle. 1. Vaugh. 49. Because here is no express Estate to Thomas the Covenantor, for 'tis limited to his Heirs Males, the Remainder to his own right Heirs; so that he having no Estate for Life, the Estate Tail could not be executed in him, and for that reason William cannot take by descent. 2. He cannot take by Purchase, for he is to be Heir of Thomas, and Heir Male, the Limitation is so; but he cannot be Heir, for his five Nieces are Heirs. In answer to which, these Assertions were laid down. 1. That in this Case Thomas the Covenantor hath an Estate for Life by implication, and so the Estate Tail being executed in him comes to William by descent and not by purchase; for though the Covenantor had departed with his whole Estate, and limited no Use to himself, yet he hath a Reversion, because he can have no right Heir while he is living; and therefore the Statute of 27 H. 8. Hob. 30. creates an Use in him till the future use cometh in esse, and by consequence the right Heirs cannot take by purchase; for wherever the Heir takes by purchase, the Ancestor must departed with his whole Fee, for which reason a Fee cannot be raised by way of purchase to a Man's right Heirs, by the name of Heirs, either by Conveyance of Land or by Use or Devise, but it works by descent, 1 Inst. 22. b. And that uses may arise by Implication by Covenants to stand seized, the Authorities are very plentiful, Moor 284. 1 Co. 154. Lord Paget's Case cited in the Rector of Cheddington's Case, Cro. Eliz. 321. 1 Roll. Rep. 239, 240, 317, 438. Lane verse. Panel. Cor. Car. And in the Case of Hodgkinson and Wood, in a Devise there was the same limitation as this; the Case was, Thomas being seized in Fee had Issue Francis and William, by several Ventures, and devised Land to Francis his eldest Son for Life, then to the Heirs Males of his Body, and for default of such Issue, to the Heirs Males of William, and the Heirs Males of their Bodies for ever, and for default of such Issue to the use of the right Heirs of the Devisor; then he made a Lease to William for 30 years, to commence after his death, and dies: William Enters and Surenders this Lease to Francis, who Enters and makes a Lease to the Defendant, and dies without Issue, and William Enters and makes a Lease to the Plaintiff; it was adjudged for William, because he being Heir Male of the Body of the Devisor, had by this Limitation an Estate tail, as by Purchase, and that the Inheritance in Fee simple did not vest in Francis. 2. If Thomas the Covenantor had no Estate executed in him, yet William his Son in this Case may take by way of future springing use, because the Limitation of an Estate upon a Covenant to stand seized, may be made to commence after the Ancestors Death, for the old Seisin of the Covenantor is enough to support it. There is a great difference between a Feoffment to uses, and a Covenant to stand seized, for by the Feoffment the Estate is executed presently, 1 Co. 154. Rector of Cheddington's Case; So if there be a Feoffment to A. for Life, Remainder to B. in Fee, if A. refuse B. shall enter presently, because the Feoffor parted with his whole Estate; but if this had been in the Case of a Covenant to stand seized, if A. had refused, the Covenantor should have enjoyed it again till after the death of A. by way of springing use, like the Case of Parsons and Willis, 2 Roll. Abr. 794. Where a Man Covenants with B. That if he doth not marry, he will stand seized to the use of B. and his Heirs, B. dies, the Covenantor doth not marry; this Use arises as well to the Heir of B. as to B. himself, if he had been living, and he shall have the Land in the nature of a descent. But if William cannot take it either by purchase or by descent, he shall take it, 3. Per formam doni as special Heir to Thomas: This Case was compared to that in Littleton Sect. 23. If Lands are given to a Man, and the heirs Females of his Body, if there be a Son, the Daughter is not Heir; but yet she shall take it, for voluntas donatoris, etc. So if Lands are given to a Man, and the Heirs Males of his Body, the youngest Son shall have it after the death of the eldest, leaving Issue only Daughters, for these are descents secundum formam doni. So in this Case the Estate Tail vested in Edward, and when he died without Issue, it comes to William per formam doni. Object. The Case of Greswold in 4 & 5 Ph. & Mariae, Dyer 156. seems to be express against this Opinion, which was, that Greswold was seized in Fee, and made a Grant for Life, the Remainder to the Heirs Males of his Body, the Remainder to his own right Heirs; he had Issue two Sons, and died; the eldest Son had Issue a Daughter, and died; and if the Daughter or her Uncle should have the Land was the question in that Case: And it was adjudged that the Limitation of the Remainder was void, because Greswold could not make his right Heir a Purchasor, without departing with the whole Fee; Postea. Britain and Charnock. and therefore judgement was given against the special Heir in Tail, for the Heir general, which was the Daughter. Answ. Admit that Case to be Law (yet the judges there differed in their Arguments,) 'Tis not like this at Bar, for that Case was not upon a Covenant to stand seized, but upon a Deed indented, and so a Conveyance at the Common Law: But for an Authority in the point, the Case of Pybus, and Mitford was cited and relied on, which was Trin. 24 Car. 2. Rot. 703. Mod. Rep. 159. 1 Ventris 372. adjudged by Hales Chief justice, Rainsford and Wild, but justice Twisden was of a contrary Opinion. Sergeant Stroud, who argued on the other side, made three Points. 1. Whether this Limitation be good in its creation. 2. If the Estate Tail be well executed in Thomas the Covenantor. 3. If it be good and well executed, whether when Edward died without Issue, the whole Estate Tail was not spent. 1. And as to the first Point, he held that this Limitation to the Heirs Males of Thomas was void in the creation, because a Man cannot make himself or his own right Heir a Purchasor, unless he will part with the whole Estate in Fee, Dyer 309 b. If A. being seized in Fee, makes a Lease for Life to B. the Remainder to himself for years, this Remainder is void; so if it had been to himself for Life, because he hath an Estate in Fee, and he cannot reserve to himself a lesser Estate than he had before, 42 Ass. 2. If I give Lands to A. for Life, the Remainder to myself for Life, the Remainder in Fee to B, after the death of A. in this Case B. shall enter, for the Remainder to me was void, 1 H. 5. 8. 42 Edw. 3. 5. Bro. Estate 66. Dyer 69. b. 'Tis true, these Cases are put at the Common Law, but the Statute of uses makes no alteration; for according to the Rules laid down in Chudleighs Case, by my Lord Chief justice Popham, 1 Co. 138. 1. uses are odious, and so the Law will not favour them. 2. A Rule at Common Law shall not be broke to vest an Use, and the uses here cannot vest without breaking of a Rule in Law. 3. uses are raised so privately, that he who takes them may not know when they vest, and for that reason they are not to be favoured. 4. The Statute annexes both the Possession and the Use together, as they vest and divest both together, Moor 713. 2 Co. 91. Co. Lit. 22. Moor 284. 2. As to the second Point, The Estate is not executed in Thomas, and therefore William cannot take it by descent; Heirs of his Body or Heirs Male, are good Words of Limitation to take by Purchase from a Stranger, but not from an Ancestor, for there he shall take by descent, and for this there is an Authority, Co. Lit. 26. b. John had Issue by his Wife Roberga, Robert and Maud; John dies, Michael gave Lands to Roberga, and to the Heirs of her Husband on her Body begotten; Roberga in this Case had but an Estate for Life, for the Fee Tail vested in Robert, and when he died without Issue his Sister Maud was Tenant in Tail, per formam Doni, and in a Formedon she counted as Heir to Robert, which she was not, neither was she Heir to her Father at the time of the Gift, yet it was held good; for the Words, Viz. Heirs of the Body of the Father, were Words of Purchase in this Case. If therefore no Use for Life vested in Thomas, than William cannot take by descent, Dyer 156. Co. Lit. 22. Hob. 31. Dyer 309. 1 Co. 154. Lord Paget's Case, cited in Hob. 151. 3. To the third Point, Admitting both the former to be against him, yet since Edward is dead without Issue, the Estate Tail is spent. But the whole Court were of Opinion, Judgement. That William should Inherit this Land in question; for though at the Common Law a Man cannot be Donor and Donee, without he part with the whole Estate, yet 'tis otherwise upon a Covenant to stand seized to uses: And if any other Construction should be made, many Settlements would be shaken, in which nothing was more usual now, than to Covenant to stand seized to the Use of himself, and the Heirs Males of his Body, etc. They all agreed also, That the Estate being well limited, William should take per formam Doni as special Heir, for Voluntas Donatoris in charta manifeste expressa observetur; and 'tis apparent Thomas intended that William should have it, or else the Limitation to his Heirs Males had been needless. So that taking it for granted, that the Estate Tail once vested, is not spent by his dying without Issue, but it comes to William by descent, and not as a Purchasor, for so he could not take it, because he is not Heir, and till Thomas be dead without Issue, the Tail cannot be spent, so there was no difficulty in that Point. And they held the Opinions of Dyer and Saunders in Creswold's Case to be good Law, who were divided from the other justices, but they doubted of Pybus and Mitford 's Case, whether it was Law or not; they doubted also whether by any Construction Thomas could be said to have an Estate for Life by implication; they doubted also of the springing Use, but they held that this Limitation was good in its creation, and judgement was given accordingly. Cockram Executor versus Welby. Statute of Limitations not pleadable by a Sheriff, who levied money by fi. fa. and nine years pass. Mod. Rep. 245. IN Debt, the Plaintiff declared that his Testator recovered a judgement in this Court, upon which he sued out a Fieri facias, which he delivered to the Defendant being Sheriff of Lincoln, and thereupon the said Sheriff returned Fieri feci, but that he hath not paid the Money to the Plaintiff, per quod actio accrevit, etc. The Defendant pleaded the Statute of Limitations, to which the Plaintiff demurred. And the question was, whether this Action was barely grounded on the Contract, or whether it had a Foundation upon matter of Record? If on the Contract only, than the Statute of 21 Jacobi cap. 16. is a good Plea to bar the Plaintiff of his Action, which Enacts That all Actions of Debt, grounded upon any Lending or Contract, without Specialty, shall be brought within six years' next after the Cause of Action doth accrue; and in this Case nine years had passed. But if it be grounded upon matter of Record, that is a Specialty, and then the Statute is no bar. Sergeant Barrel held this to be a Debt upon a Contract, without specialty, for when the Sheriff had levied the Money, the Action ceases against the Party, and then the Law creates a Contract, and makes him Debtor, as it is in the Case of a Tally delivered to a Customer. It lies against an Executor, where the Action arises quasi ex contractu, which it would not do if it did not arise ex maleficio as in the Case of a Devastavit. 'Tis true, The judgement recovered by the Testator, is now set forth by the Plaintiff Executor, but that is not the ground but only an inducement to the Action, for the Plaintiff could not have pleaded nul tiel Record, so that 'tis the mere receiving the Money which charges the Defendant, and not virtute Officii upon a false return; for upon the receipt of the Money he is become Debtor, whether the Writ be returned or not, and the Law immediately creates a Contract; and Contracts in Law are as much within the Statute, as Actual Contracts made between the Parties. All which was admitted on the other side; but it was said that this Contract in Law was chief grounded upon the Record, and compared it to the Case of Attorney's Fees, which hath been adjudged not to be within the Statute, though it be quasi ex contractu, because it depends upon Matter of Record, Rolls Abridg. tit. Debt 598. pl. 17. And afterwards in Michaelmas-Term following by the Opinions of the Chief Justice, Wyndham and Atkins justices, it was held that this Case was not within the Statute, because the Action was brought against the Defendant as an Officer, who acted by virtue of an Execution; in which Case the Law did create no Contract, and that here was a Wrong done, for which the Plaintiff had taken a proper remedy, and therefore should not be barred by this Statute. justice Scroggs was of a contrary Opinion; for he said if another received Money to his use due upon Bond, the Receipt makes the Party subject to the Action, and so is within the Statute. But by the Opinions of the other justice's judgement was given for the Plaintiff. Major versus Grigg. In Banco Regis. THE Plaintiff brought an Action, Covenant to save harmless, and the Plaintiff sets forth no Title in the disturber, good after Verdict. Cro. Eliz. 914. Cro. Jac. 315, 425. Vaugh. 120, 121. 2 Sand. 178. Mod. Rep. 66. for that the Defendant Non indempnem conservavit ipsum de & concernente occupation̄ quorundam clausorum, etc. secundum formam agreamenti, and sets forth a disturbance by one who commenced a Suit against him in such a Term concernente occupation clausorum praed ', but doth not set forth that the person suing had any Title, which (it was said) ought to have been shown; as if a Man makes a Lease for years and covenants for quiet enjoyment, in an Action brought by the Lessee upon that Covenant it must be shown that there was a lawful Title in the person, who disturbed, or else the Action will not lie. But this being after a Verdict, and the Plaintiff setting forth in his Declaration, that the disturber recovered per Judicium Curiae, the Court now were all of Opinion that judgement should be given for the Plaintiff. Taylor versus Baker. In Banco Regis. Payment to the Marshal no discharge to the Plaintiff at whose Suit the Defendant was in Execution. Jones 97. THE Case was; viz. a Man being in Execution doth actually pay the Money to the Marshal, for which he was imprisoned, and thereupon was discharged; and whether he should pay it again to the Plaintiff upon a second Execution was the Question? Sanders argued that he should not pay it again; he said this Case was never adjudged, and therefore could produce no Authority in Point to warrant his Opinion, but parallel Cases there were many. As if the Sheriff take Goods in Execution by virtue of a Fieri Facias, whether he sells them or not, yet being taken from the party against whom the Execution was sued, he shall plead that taking in discharge of himself, and shall not be liable to a second Execution, though the Sheriff hath not returned the Writ; and the reason is because the Defendant cannot avoid the Execution, and he would therefore be in a very bad condition, if he was to be charged the second time. And if the Sheriff should die after the Goods are taken in Execution, his Executors are liable to the Plaintiff to satisfy the debt, for they have paid pro quo, and 'tis in nature of a Contract raised by Law. By the Words of the Capias ad satisfaciend ' it doth appear that the design of the Writ is to enforce the Payment of the the debt by the Imprisonment of the Defendant: The Sheriff thereupon returns that he hath taken the Body, and that the Defendant hath paid the Money to him, for which reason he discharged him; and for this Return he was amerced, not because he discharged the Party, but because he had not brought the Money into the Court; for the Law never intended that a Man should be kept in Prison after he had paid the debt. In this Case the Defendant can have no remedy to recover it again of the Marshal, because it was not a bare Payment to him, but to pay it over again to the Plaintiff, and likewise in consideration that he should be discharged from his Imprisonment. If it should be objected by the Marshal that the Plaintiff hath an Action of Escape against him, and likewise by the Plaintiff that he did not make the Gaoler his Steward or Bailiff to receive his Mony. Answ. The Gaoler is made his Bailiff to keep the Party in Execution, and it would be very hard that when the Prisoner will lay down his Money in discharge of the Debt, that the Gaoler should not have full power to discharge him. If he had come in Michaelmas-Term after the long Vacation, and informed the Court that he had offered to pay the Execution Money to the Marshal, and that he would not take it, and that the Plaintiff could not be found, the Court would have made a Rule to help him. Mr. Holt contra. If the Payment had been good to the Sheriff or Marshal, yet 'tis not pleadable to the second Execution because 'tis matter in fact. That which hath been objected that the Party shall plead to a second Execution, that his Goods were taken by a former Fieri Facias cannot be; for no such Plea can be good, because by that Writ the Sheriff hath express Authority to levy the Money; and the Plea is not Payment to the Sheriff, but that the Money was levied by him by virtue of the Writ, which ought to be brought into the Court, and an Audita Querela lies against the Plaintiff, and then the Defendant is to be bailed, 1 Leon. 141. Askew versus the Earl of Lincoln. Jones and Rainsford were of Opinion, that the Defendant might have remedy against the Marshal to recover his Money again, and that the Payment to him was no discharge to the Plaintiff at whose Suit he was in Execution: But justice Wyld was of another Opinion: Quaere. The Lord Marquis of Dorchester's Case. In Communi Banco. IN a Scandalum Magnatum. Visne not changed in a Scandalum Magnatum. Sergeant Pemberton moved to have good Bail, which the Court denied, and said that in such Case Bail was not requirable, but notwithstanding the Defendant consented to put in 50 l. Bail. And then upon the usual Affidavit moved to change the Visne the Action being laid in London, which was opposed by the Sergeant, who desired that it might be tried where it was laid; but he said in this Case that the Visne could not be changed. 1. Because the King is a Party to the Suit, for 'tis tam pro Domino Rege quam pro seipso. 2. The Plaintiff is a Lord of Parliament which is adjourned and will meet, and therefore it would be inconvenient to try the Cause in the Country, since the Service of the King and Kingdom both require his Attendance here; and he said that upon the like Motion in B. R. between the Lord Stamford and Needham, the Court would not change the Visne. North Chief justice said that he always took it as a current Opinion, that in a Scandalum Magnatum the Visne could not be changed; for since it was in the nature of an Information it being tam quam, 'twas advisable whether it was not within the Statute of 21 Jac. which doth appoint Informations to be tried in their proper Counties. But justice Atkins inclined that the Visne might be changed, for though by the Wisdom of the Law a jury of the Neighbourhood are to try the Cause, yet in point of justice the Court may change the Visne; to which it was objected, that then there would be no difference between local and transitory Actions. Actions of Debt and Account shall be brought in their proper Counties 6 R. 2. and it was agreed that an Attorney is sworn to bring Actions no where else. But the Court not agreeing, at last the Defendant was willing that the Cause should be tried in London, if the Plaintiff would consent not to try it before the first Setting in the next Term. And as to that reason offered, why the Visne should not be changed, because the Plaintiff was a Lord of Parliament, justice Atkins said that did not satisfy him; it might be a good ground to move for a Trial at the Bar; to which it was answered, that in the Case of the Earl of Shaftsbury the Court would not grant a Trial at the Bar without the Consent of the Defendant. The Visne was not changed. Beaver versus Lane. COvenant made to Baron and Feme, Covenant to Baron and Feme, the Baron alone may bring the Action. the Husband alone brings the Action quod teneat ei conventionem secundum formam & effectum cujusdam Indenturae inter Querentem ex una parte & Defendentem ex altera parte confect', and this was for not repairing his House: After Verdict for the Plaintiff it was moved in Arrest of judgement because of this variance. But the Court Ordered that the Plaintiff should have his judgement, for the Indenture being by Baron and Feme it was therefore true, that it was by the Baron, and the Action being brought upon a Covenant concerning his Houses, and going with them though it be made to him and his Wife, yet he may refuse quoad her, and bring the Action alone: And the Chief justice said, that he remembered an Authority in an old Book, that if a Bond be given to Baron and Feme the Husband shall bring the Action alone, which shall be looked upon to be his refusal as to her. Calthrop versus Phillips. THE Question was, Supersedeas must be delivered by the old Sheriff to the new one. Mod. Rep. 222. in regard a Supersedeas is not returnable in the Court, whether the old Sheriff is bound to deliver it over to the new one or no; and it was urged that it ought not, because the old Sheriff is to keép it for his indemnity, and he may have occasion to plead it. But on the other side it was insisted by Sergeant George Strode, that it ought to be delivered to the new Sheriff, and that there was a Writ in the Register, which proved it, fol. 295. and if it should be otherwise these inconveniences would follow. 1. It would be inconvenient that the Capias against the Defendant should be delivered to the new Sheriff, and not the Supersedeas which was to admit the Charge, and not the Discharge, Westby's Case, 3 Co. 73. And it was the constant practice not only to deliver the Supersedeas, but the very Book in which 'tis allowed; and this he said appeared by the Certificates of many under-sheriffs, which he had in his hand. 2. If the Sheriff hath an Exigent against B. who appears and brings a Supersedeas to the old Sheriff, and then a new Sheriff is made, if he hath not the Supersedeas he may return him outlawed by virtue of the Exigent; so in the Case of a judgement set aside for Fraud or Practice, and a Supersedeas granted; and the like in the case of an Estrepment which is never returned; and it would be an endless work upon the coming in of every Sheriff to renew this Writ. As to the Objection that the old Sheriff may have occasion to plead it: As often as such occasion happens he may have recourse to it in the Office of the new Sheriff; and he can have no Title to it by the direction of the Writ, for that is Vicecomiti Berks, and not to him by express Christian and Surname; and of that Opinion was all the Court, and judgement was given accordingly nisi causa, etc. Hamond versus Howel Recorder of London. An Action will not lie against a Judge for what he doth judicially tho' erroneously. Mod. Rep. 184. FAlse Imprisonment. The Defendant pleads specially; the Substance of which was, that there was a Commission of Oyer and Terminer directed to him amongst others, etc. and that before him and the other Commissioners Mr. Penn and Mr. Mead two Preachers, were indicted for being at a Conventicle; to which Indictment they pleaded Not-Guilty, and this was to be tried by a jury, whereof the Plaintiff was one; and that after the Witnesses were sworn and examined in the Cause, he and his Fellows found the Prisoners, Penn and Mead, Not-Guilty, whereby they were acquitted, & quia the Plaintiff male se gesserit in acquitting them both against the direction of the Court in Matter of Law, and against plain Evidence; the Defendant and the other Commissioners then on the Bench fined the jury 40 Marks apiece, and for Nonpayment committed them to Newgate, etc. The Plaintiff replies de injuria sua propria absque hoc that he and his Fellows acquitted Penn and Mead against Evidence; and to this the Defendant demurred. Sergeant Goodfellow, who would have argued for the Defendant, said that he would not offer to speak to that Point, whether a judge can fine a jury for giving a Verdict contrary to Evidence, since the Case was so lately and solemnly resolved by all the judges of England, in * Vaugh. 146. Bushel's Case, that he could not fine a jury for so doing. But admit a judge cannot fine a jury, yet if he doth, no Action will lie against him for so doing, because 'tis done as a judge, 12 H. 4. 3. 27 Ass. pl. 12. 1 Roll. Abr. 92. Litter. Q. pl. 1. But the Court told him that he neéd not to labour that Point, but desired to hear the Argument on the other side what could be said for the Plaintiff. Sergeant Newdigate argued that this Action would lie. 1. It must be admitted that the Imprisonment of the jury was unlawful, and then the consequence will be, that all that was done at that time by the Commissioners or judges was both against Magna Charta and other Acts of Parliament, the Petition of Right, etc. and therefore their Proceed were void, or at least very irregular to imprison a juryman without Presentment or due Process in Law, and consequently the party injured shall have an Action for his false Imprisonment. In 10 H. 6. f. 17. In an Action brought for false Imprisonment the Defendant justifies the Commitment to be for Suspicion of Felony; but because he did not show the ground of such Suspicion the justification was not good. The Trial of Penn and Mead and all incidents thereunto, as swearing the jury, examining of the Witnesses, taking of the Verdict and acquitting the Prisoner were all within the Commission; but the fining of the jury and the imprisoning of them for Nonpayment thereof was not justifiable by their Commission, and therefore what was done therein was not as Commissioners or judges. If this Action will not lie then the Party has a Wrong done, for which he can have no remedy; for the order for paying of the Fine was made at the Old-Bayly, upon which no Writ of Error will lie; and though the Objection that no Action will lie against a judge of Record for what he doth quatenus a judge, be great, the Reason of which is, because the King himself is the jure to do justice to his Subjects, and because he cannot distribute it himself to all persons, he doth therefore delegate his Power to his judges, and if they misbehave themselves the King himself shall call them to account and no other person, 12 Co. 24, 25. But that concerns not this Case, because what was done here was not warranted by the Commission, and therefore the Defendant did not act as a judge; and this difference hath been taken and allowed, that in the Case of an Officer, if the Court hath jurisdiction of the Cause no Action will lie against him for doing what is contrary to his Duty; but if all the proceedings are coram non Judice and so void, an Action doth lie, 10 Co. 77. So in the Case of a justice of the Peace or Constable, where he exceeds his particular jurisdiction; so if a judge of Nisi Prius doth any thing not warranted by his Commission, 'tis void. And that the Commissioners here had no power to impose this Fine, he argued from the very nature of the pretended Offence, which was neither a Crime or in any wise punishable, because what the Plaintiff did was upon his Oath; and for that reason it hath been adjudged in the Case * Bridgman 131. Agard and Wild, that an Action would not lie against one of the Grand jury after an acquittal, for procuring one to be indicted for Barratry, because he is upon his Oath, and it cannot be presumed that what he did was in Malice. The Habeas Corpus gives the Party Liberty but no Recompense for his Imprisonment, that must be by an Action of False Imprisonment, if otherwise, there would be a failure of justice; and it might encourage the judges to act ad libitum, especially in inferior Courts, where Mayors and Bailiffs might punish juries at their pleasures, which would not only be a grievance to the Subject, but a prejudice to the King himself, because no juries would appear where they are subject to such arbitrary Proceed. An Action on the Case lies against a justice of the Peace for refusing to take an Oath of a Robbery committed, 1 Leon. 323. and yet it was objected that there he was a judge, Quaere, Brook 204. March 117. for which Reasons he prayed judgement for the Plaintiff. Curia. But the whole Court were of Opinion that the bringing of this Action was a greater Offence that fining of the Plaintiff, and committing of him for Nonpayment, and that it was a bold attempt both against the Government and justice in general. The Court at the Old-Bayly had jurisdiction of the Cause and might try it, and had power to punish a Misdemeanour in the jury; they thought it to be a Misdemeanour in the jury to acquit the Prisoners, which in truth was not so, and therefore it was an Error in their judgements, for which no Action will lie: How often are judgements given in this Court, reversed in the King's Bench? And because the judges have been mistaken in such judgements must that needs be against Magna Charta, the Petition of Right and the Liberties of the Subject? These are mighty words in sound but nothing to the Matter. There hath not been one Case put which carries any resemblance with this; those of justices of the Peace and Mayors of Corporations are weak instances; neither hath any Authority been urged of an Action brought against a judge of Record for doing any thing quatenus a judge. That Offences in jurymen may be punished without Presentment is no new Doctrine, as if they should either eat or drink before they give their Verdict, or for any contempt whatsoever; but 'tis a new Doctrine to say, that if a Fine be set on a juryman at the Old-Bayly, he hath no remedy but to pay it; for a Certiorari may be brought to remove the Order by which it was imposed, and it may be discharged if the Court think fit. As to what hath been Objected concerning the Liberty of the Subject, that is abundantly secured by the Law already; a judge cannot impose upon a jury for giving their Verdict contrary to Evidence; if he doth any thing unjustly or corruptly, complaint may be made to the King, in whose Name judgements are given, and the judges are by him delegated to do justice, but if there be Error in their judgements, as here, 'tis void; and therefore the Barons of the Exchequer might refuse to issue Process upon it, and there needs no Writ of Error, for the very Estreats will be vacated. Though the Defendants here acted erroneously, yet the contrary Opinion carried great colour with it, because it might be supposed very inconvenient for the jury to have such liberty as to give what Verdicts they please; so that though they were mistaken, yet they acted judicially, and for that Reason no Action will lie against the Defendant; and judgement was given accordingly. The Case of the Warden of the Fleet. COmplaint was made by Sergeant Turner on the part of the Parishioners of St. Bride's London, against the Warden of the Fleet and his Prisoners, for that he suffered several of them to be without the Walls of his Prison, in Taverns and other Houses adjoining to the Prison and fronting Fleet-Ditch, where they committed Disorders, and when the Constable came to keep the Peace, and to execute a Warrant under the Hand and Seal of a justice of Peace, they came in a tumultuous manner, and hindered the execution of justice, and rescued the Offenders, and often beat the Officers, the Warden often letting out 20 or 30 of his Prisoners upon any such occasion to inflame the Disorder. It was prayed therefore, That this Court, to which the Prison of the Fleet doth immediately relate, might give such Directions to the Warden, that these Mischiefs for the future might be prevented, and that the Court would declare those Houses out of the Prison to be subject to the Civil Magistrate. The Court were all of Opinion (but justice Atkins, Curia. who doubted) that nothing can properly be called the Prison of the Fleet, which is not within the Walls of the Prison, and that the Warden cannot pretend an exemption from the Authority of the Civil Magistrate, in such places as are out of the Prison Walls, though Houses may be built upon the Land belonging to the Fleet; for the preservation of the King's Peace is more to be valued than such a Private Right. But justice Atkyns said, if such places were within the Liberties of the Fleet, he would not give the civil Magistrate a jurisdiction in prejudice of the Warden, but thought it might be fit for the Court to consider upon what reason it was that the Warden of the Fleet applied such Houses to any other uses than for the benefit of the Prisoners; whereupon the Court appointed the Prothonotaries to go thither and give them an account of the matter, and they would take farther Order in it. St. Marry Magdalen Bermondsey Church in Southwark: In Scaccario. Rate for Building a Church shall be set by the Parishioners. Jones 89. Mod. Rep. 236. IN a Prohibition, it was the Opinion of the whole Court, That if a Church be so much out of Repair, that 'tis necessary to pull it down, and that it cannot be otherwise repaired, that in such case upon a general warning or notice given to the Parishioners, much more if there be notice given from House to House, the major part of the Parishioners then present, and meeting according to such notice, may make a Rate for pulling down of the Church to the Ground, and Building of it upon the old Foundation, and for making of Vaults where they are necessary, as they were in this Church, by reason of the springing Water; and though the Rate be higher than the Money paid for doing all this, yet 'tis good, and the Churchwardens are chargeable for the Overplus, they not being able to compute to a Shilling. That if any of the Parishioners refuse to pay their Proportion according to the Rate, they may be Libelled against in the Spiritual Court; and if the Libel allege the Rate to be pro reparatione Ecclesiae generally, though in strictness Ecclesia contains both the Body and Chancel of the Church; yet by the Opinion both of the Court of Common Pleas and of the Exchequer, It shall be intended, that the Rate was only for the Body of the Church; but in this Case it was made appear clearly that the Rate was only for the Body, and that the Minister was at the charge of the Chancel. And both Courts agreed, That when a Prohibition is moved and desired on purpose to stop so good a Work as the Building a Church, the Court will not compel the Parties to take Issue upon the Suggestion, when upon examination they find it to be false, and therefore will not grant a Prohibition; for if the Rate be unduly imposed, the Party grieved hath a Remedy in the Spiritual Court, or may Appeal if there be a Sentence against him. The Bishop or his Chancellor cannot set a Rate upon a Parish, but it must be done by the Parishioners themselves; and so North Chief justice said, that it had been lately ruled in the Common Pleas. Afterwards the Court of Kings-Bench was moved for a Prohibition in this Case, and it was denied, so that in this Case there was the Opinion of all the three Courts. This matter was so much laboured because twenty four Quakers were reported to be concerned in the Rate, and they were unwilling to pay towards the Building of a Church. Paget versus Vossius. In B. R. A Trial at the Bar in Ejectione Firmae, Judgement given upon the Construction of words in a Will. Jones 73. 1 Ventris 325. in which the jury found a special Verdict: The Case was, Viz. That Dr. Vossius the Defendant, being an Alien, and a Subject of the States of Holland, falling into Disgrace there, had his Pension taken from him by Public Authority: Afterwards he came into England, and contracted a great Friendship with one Dr. Brown a Prebendary of Windsor; Then a War broke out between England and Holland, and the King issued forth his Proclamation, declaring the said War, and the Hollanders to be Alien Enemies. Dr. Brown being seized of the Lands now in question, being of the value of 200 l. per Ann. and upwards, made his Will in these words in Writing, Inter alia, Viz. Item I give all my Manor of S. with all my Freehold and Copyhold Lands, etc. to my dear Friend Dr. Isaac Vossius, during his Exile from his own Native Country; but if it please God to restore him to his Country, or take him out of this Life, than I give the same immediately after such restoration or death, to Mrs. Abigal Hevenigham for ever. A Peace was afterwards concluded between England and Holland, whereby all Intercourses of Trade between the two Nations became lawful; but Dr. Vossius was not sent for over by the States, nor was there any offer of kindness to him, but his Pension was disposed of and given to another. That the Doctor might return into his own Country when he pleased, but that he still continued in England. And whether he or the Lessor of the Plaintiff Mrs. Heveningham had the better Title, was the question? Nota, Dr. Vossius was enabled to take by Grant from the King. Ex parte Quer. Pemberton Sergeant for the Lessor of the Plaintiff, argued that the Estate limited to the Defendant is determined, which depended upon the construction of this Devise. He did agree that the Will was obscure, and the intent of the Devisor must be collected from the circumstances of the Case; and it is a Rule, That according to the * 2 Cro. 62, 371, 416. intent of the Parties a Will is to be interpreted. 'Tis plain then that the Devisor never intended the Defendant an Estate for Life absolutely, because it was to depend upon a Limitation, and the Words are express to that purpose, for he devises to him during his Exile, etc. Now the Question is not so much what is the genuine and proper sense and signification of those Words, as what the Testator intended they should signify. 1. Therefore the most proper signification of the Word Exile, is a penal Prohibiting a person from his Native Country; and that is sometimes by judgement or Edict, as in the case of an Act of Parliament; and sometimes 'tis chosen to escape a greater Punishment, as in cases of Abjuration and Transportation, etc. But he did not think that the Testator took the Word Exile in this restrained sense, for Dr. Vossius was never formally or solemnly Banished; if that should be the sense of the Word than nothing would pass to the Doctor by this Will, because the Limitation would be void; and like to the Case of a Devise to a Married Woman durante viduitate, and she dies in the life-time of her Husband; or to a Woman Sole during her Coverture, or of a Devise to A. the Remainder to the right Heis of B. and A. dies living B, so that this could not be his meaning. 2. The Word Exile in common parlance is taken only for absence from ones Native Country; but this is a very improper signification of the Word, and nothing but a Catachresis can justify it; and therefore the Testator could not intent it in this sense; 'tis too lose and inconsiderable an Interpretation of the Word for the judgement of the Court to depend on, unless there were circumstantial Proofs, amounting almost to a Demonstration that it was thus meant: But it plainly appears by the following Words this was not the meaning of the Testator, for 'tis said, If it please God to restore him to his Country; which shows that there was some Providence or other which obstructed his return thither, and so could not barely intent a voluntary absence; for if so, he might have expressed it; viz. during his absence from his Country, or till his return thither, or whilst he should stay in England, and not in such doubtful Words. 3. By the Word Exile is meant a persons lying under the displeasure of the Government where he was born, or of some great persons who have an Influence upon the Government, or have an Authority over him; which makes him think convenient (considering such circumstances) to withdraw himself, and retire to some other place; and this is a sense of the Word between both the former, and even in the Common Law we are not strangers to the acceptation of the Word in that sense. There is a Case omni exceptione major in the Writ of Waste, which is, fecit vastum de domibus, venditionem de boscis, & exilium de hominibus, 'tis in the Register, and in the Writ on the Statute of Marlebridge cap. 24. where by the exilium de hominibus is meant the hard usage of Tenants, or the menacing of them, whereby they fly from their Habitations, 2 H. 6. 11. 'Tis found in this Case that the Defendant was under the displeasure of his Governors, the War broke out, and therefore it might not then be safe for him to return; and for that reason he might think it safe for himself to abide here, and this Dr. Brown the Testator might know, which might also be the reason of making the Will. But now all acts of Hostility are past, and so the Defendants recess is open, and it hath pleased God to restore the Doctor, but he is not pleased to restore himself, for the jury find he is not returned; now if a Man hath an Estate under such a Limitation to do a thing which may be done when it pleaseth the party; in such case if he neglect or refuse to do the thing, the Estate is determined, 15 H. 7. 1. If I grant a Man an Annuity till he be promoted to a Benefice, and I provide a Presentation for him, and he will not be Instituted and Inducted, the Annuity ceases; so shall the Estate in this Case, because the Devisor seems to appoint it to the Defendant till he may return. Ex parte Def. Mr. Holt contra, held that the Estate is not determined, but had a continuance still. In his Argument he considered these four things. 1. Whether upon Dr. Vossius' coming into England (being under the displeasure of the Government where he was born) he was an Exile. And he held that he was an Exile, which Word in plainness of Speech, doth not only concern a person prohibited to live in his Native Country, by act of State, but one who leaves his Country upon other occasions; and Calvin the Civilian in his Lexicon tells us, That an Exile is one qui extra solum habitat, and in all the descriptions of exilium 'tis divided into voluntary and involuntary; Plutarch and Livy use it in the sense of a voluntary leaving of a Native Country, where 'tis said of Petrellus in voluntarium profectus est exilium. If a Man leaves his Country upon the displeasure of the Governors, or fearing any Danger of Life, or even upon the Loss of his Livelihood, this is little different from involuntary Exile, and this is the Case of the Defendant; who, though he is not prohibited to continue in such Exile, yet he is disabled to return, and though he is not punished for staying, yet if he return, he is in danger of being starved. As for the Case of exilium de hominibus, it makes for the Defendants purpose, for in the 1 Inst. 53. b. 'tis said, if Tenants be impoverished, that is an Exilium, and have not the States taken away the Doctor's Livelihood and impoverished him as much as they can? and therefore he had good cause to seek relief elsewhere. Now the same cause continues still, for 'tis not found by the special Verdict that there was any reconciliation between the States and him, or that he may have his Pension again, if he should return, but on the contrary, that 'tis disposed of to another; and 'tis apparent that there was a great Friendship between the Testator and the Defendant, who took notice of the Circumstances of Dr. Vossius' condition at that time, which is in no sort altered from what it was at the time of the making of the Will; so that by the Word restored nothing else could be intended by Dr. Brown, than when his Friend should have the favour of the States, and a comfortable subsistence in his own Country. 2. Dr. Vossius is not to be considered with any relation to the War, because he came into England before the War proclaimed; neither doth it appear by the special Verdict that he was any wise concerned in it: If a Subject of England go into Holland, and a War break out, 'tis no restraint of his person if he be not active in it, for he may return as he hath opportunity so to do. 3. Admitting Dr. Vossius to be concerned in the War, yet the Peace ensuing can be no Restitution of him to his Country, that only extinguishes the Hostility between the two Nations, and doth not restore the Doctor, who during the War adhered to the King of England, and so was a Rebel to the States; and for that reason a Peace shall not extend to pardon him. 4. Admitting the Doctor to be no Exile, than the Limitation in the Will is void, and a void Limitation is like a void Condition, and then the Estate is absolute in him; if it had been a Condition precedent, as a Devise to him in case he was not an Exile, that had prevented the vesting of the Estate; but if the subsequent Limitation be impossible, they must show on the other side that the Estate is determined. Rainsford Chief justice was clear of Opinion, that the Estate doth continue in the Defendant by this Limitation, until the Circumstances of his Case, (as to the Favour of the States, and the offer of his Pension, or some competent way of Livelihood) differ from what they did at the time of the making of the Will; and it doth not appear that there was any alteration of his Condition, nor any expectation of a Pension from the States now, more than he had at that time. Whereupon in Michaelmas-Term following judgement was given for the Defendant Vossius by the Opinion of the whole Court of King's Bench. Strangford versus Green. IN an Action on the Case for Non-performance of an Award; Award that all Suits shall cease amounts to a Release. the Defendant having in behalf of himself and his Partner, referred all Differences and Controversies between the Plaintiff and them to Arbitrators, and promised to perform their Award; which was, that all Suits which are prosecuted by the Plaintiff against the Defendant shall cease, and that he shall pay the Plaintiff so much, etc. And for Nonpayment this Action was brought upon this special Declaration, to which the Defendant did demur. 2 Cro. 639, 663 1. Because the Submission was only of Matters concerning the Partnership, and the Award was that all Suits shall cease. 2. It was of all Matters between the Plaintiff and the Partner, and the Award is, that all Suits prosecuted against the Defendant only shall cease. 3. The Award is not mutual; for the Defendant is to pay Money, but the Plaintiff is to give no Release, 'tis only said that all Suits shall cease. 4. The other Partner is not made a Party to the Submission. 2 Cro. 663. But these Exceptions were not allowed; for no difference shall be intended but what concerned the Plaintiff and the Defendant, as the Defendant was concerned with his Partner in Trade only, unless the contrary did appear; and if any such were they should be shown on the other side. And it shall be intended likewise that all Suits shall cease only between the Plaintiff and the Defendant, and that was an Award on both sides; for the awarding that all Suits shall cease hath the effect of a Release, and the Submission and Award may be pleaded in discharge as well as a Release; and likewise the Defendant may undertake for his Partner, and having engaged for him and promised that he should perform the Award on his part (notwithstanding the Partner is not bound so to do,) yet if he refuse 'tis a Breach of the Defendants promise, and so the Plaintiff had judgement upon the first Argument. Sir John Shaw against a Burgess of Colchester. THIS was upon a Trial at the Bar wherein the Case was this, viz. The Plaintiff was a Sergeant at Law and Recorder of Colchester, and the Defendants resolving to turn him out, procured Articles of Misdemeanour to be drawn against him, and then all who had liberty to vote proceeded to vote for and against him, and a Poll was granted to decide the Controversy, it not appearing upon the View which had the Majority of Votes; but before the Plaintiff had taken all the Names, and whilst he was taking of the Poll the Defendants took away the Paper, and would not suffer him to proceed; the jury gave him 300 l. damages. Trotter versus Blake. In Scaccario. THIS was the Case of my Lord Hollis upon a Trial at the Bar in the Exchequer in an Ejectione firmae, Ejectment will not lie for a Forfeiture where the Tenant refused to pay a Fine being doubtful. wherein the Case was this, viz. The Lord Hollis was seized of the Manor of Aldenham in the County of Hartford in Fee, and the Lands in question were held of the said Lord by Copy of Court Roll, and are parcel of the aforesaid Manor. That the Defendant was admitted Tenant, and a Fine of 8 l. imposed upon him for such admittance payable at three distinct payments; that the 8 l. was personally demanded of him by the Lord's Steward, and he refused payment; whereupon the Lord enters and seizes the Estate for a Forfeiture, which he would not have insisted on, but that the obstinacy of the Defendant made it necessary for him to assert his Title and Right. Mr. Walker, the Lord Hollis his Steward, being sworn gave Evidence that a Fine of 8 l. was set upon the Defendant when he was admitted, and that the Lands to which he was admitted were usually let for 7 l. per annum, so that the Fine was but a little more than a years value: That he himself demanded the 8 l. of the Defendant being a Seafaring-man who refused to pay it. That he knew the Defendant to be the same person who was admitted to this Copyhold: That the Demand was made at the Steward's Chamber in Staple Inn, and because it was payable at three several days, he then demanded of him only 2 l. 13 s. 4 d. as a third part of the 8 l. and that he did enter upon the 25th day of November last for Nonpayment of the said 2 l. 13 s. 4 d. The Council for the Defendant insisted that the Steward ought to produce an Authority in Writing given to him by the Lord to make this Demand and Entry upon refusal, Ex parte Def. for the Lords owning it afterwards will not make a Forfeiture. But the Court held clearly that there was no need of an express Authority in Writing, Curia. and that it was not necessary for the Steward to make a Precept for the seizure, but that it was necessary that the Demand should be personal. The Reason why the Defendant refused to pay this Fine was, because he said that by a Decree and Survey made of this Manor in the Reign of Queen Elizabeth, the Fine to be paid for this Copyhold was settled, and it was but 3 l. and no more. And Sir Francis Winnington Solicitor General said for the Defendant, that the Case was very penal on his side, but that he would make it clear that there was no colour for the bringing of this Action either as to the Matter or the Form. He said that the Manor of Aldenham had not been long in this noble Lord, he came in as Purchaser or a Mortgagee under the Family of the Harvies whose Inheritance it was anciently; and there has been some doubt whilst it was in their possession what Fines were customary to be paid upon Descents and Alienations, but that is now settled, and the Defendant was in the Case of a descent for which the Fine is not to be arbitrary at the Will of the Lord; but is reduced to a certainty in Queen Elizabeth's Reign by Consent and Agreement between the Lord and Tenants; and that a Survey was then made by virtue of a Commission directed to some Men of Credit and Worth in those days, who were empowered to set forth the quantity of Land and the value thereof, which was done accordingly; and it was then agreed that a year and an halfs value in case of a Descent, and two years' value in case of an Alienation should be paid as a Fine to the Lord, and the proportion of the value was then computed by the Commissioners, and decreed by the Court of Chancery to be binding to the Lords and Tenants for ever. The Question now is, how this years' value shall be computed, the Lord would have it according to the improved value; the Tenant will pay according as it was rated in Queen Elizabeth's time by those Commissioners: Now if this Land had decayed in value the Tenant had still been obliged to pay a Fine according to the valuation of that time; and if so, it would be very unreasonable to make him pay for his Industry and Improvement of the Land now it is raised in value, because that was done by his Labour and at his expense; so that the doubt being what Fine shall be paid, an Ejectione firmae will not lie, because the Matter is doubtful, and the Law gives the Tenant Liberty to contest it with the Lord and will never let him be under the peril of a Forfeiture because he will not comply with the Lord to give up his Right without Law. But the Lord hath another and a more proper remedy, for he may bring an Action of Debt for the Fine thus imposed, which will try the Right; and is not so penal to the Copyholder, which Point was lately resolved: And that if a Copyholder had a probable cause to induce him to believe that he ought not to pay the Fine demanded, (let the Right be as it would) yet no Ejectment will lie; for it must be only in a plain Case that the Lord can enter for a Forfeiture. For no Man forfeits his Estate, but by a wilful default in himself, such a Forfeiture as is done and presumed to be committed upon his own knowledge, but want of understanding cannot be made a wilful neglect. 'Tis true, the Decree in Chancery made here cannot vary the Law, but it may be Evidence of the Fact; for prima fancy it shall be intended that such values have been paid time out of mind, because the Court have so decreed; but then when the Fine was declared to be certain, a doubt did arise how the years value shall be reckoned, which has been settled also by another Decree, and from that time all the respective Lords of this Manor have taken Fines according to that value which is mentioned in the Survey, and this Lord himself hath taken Fines in pursuance of the same, so that 'tis clear the Fine cannot be Arbitrary; but be it so or not, 'tis not material to this purpose, because the Tenant hath a good and colourable ground to insist upon the Decree and Survey, and consequently there is no wilful Forfeiture. The Lord Chief Baron agreed, That if it be a doubt, and the Tenant gives a probable Reason to make it appear that no more is due, than what he is ready to pay, 'tis no Forfeiture; but the Law in general presumes that the Fine is incertain, if the contrary is not showed; now if the Tenants doubt did arise upon the equitableness of the Fine, in such case if he refuse to pay, 'tis a Forfeiture; but here it was whether it shall be paid according to the computed or improved value, and therefore he inclined that the Action would not lie. The Exemplification of the Decree was offered to be read, which being opposed, Sergeant Maynard informed the Court that nothing was more usual, than to read a Sentence in the Ecclesiastical Court, or a Decree in Chancery as Evidence of the Fact: It being allowed to be read, the Council for the Defendant took notice that the Commission was therein mentioned which was returned into Chancery, and burned when the Six Clerks Office was on fire, in the year 1618. but a Duplicate thereof was produced which the Defendant had from the Heir of the Harveys, and so the Survey was prayed to be read, which was opopsed by Sir William Jones, for he said that it was not Duplicate, the Commissioners Names being all written with one Hand, and no proof being made that it was a true Copy of that which was returned; he likewise observed upon the reading of the Decree, that it was an Evidence for the Plaintiff, because if there had been a settled Rule for payment of the Fines, there had been no occasion to seek relief in Equity, and that there was no reason that the Defendant should come into a Court of Law to prove such Settlement by a Decree in Chancery, for if there be such a Decree his Remedy is proper there; besides, the Decree itself only mentions the years value, which was to be settled by the Commissioners, and which he said was never done, so that the Decree which appointed the Commission was not completed, and therefore being but executory, is of no force even in Equity. The Court were doubtful in the matter, and Baron Thurland said, That no Action of Debt would lie for this Fine, because it was neither upon the Contract, nor as ex quasi contractu: But as to that Sergeant Maynard answered, That many Resolutions had been made in his time of Cases, wherein the Old Books were silent. Upon the whole, the Court thought this to be a proper Case for Equity, and so directed a jurour to be withdrawn, which was accordingly done. DE Term. Sanctae Trin. Anno 29 Car. II. in Communi Banco. Addison versus Sir John Otway. IN a special Verdict in Ejectione firmae, A Parish and a Vill within the Parish of the same Name; a Recovery is suffered of Lands in the Vill, and in the Deed to lead the Uses, the Parish is named, they make but one Conveyance, and the Lands in the Parish do pass. Mod. Rep. 250. the Case was thus, Viz. There was the Vill of Rippon, and the Parish of the same Name; and likewise the Vill of Kirkby, and the Parish of the same Name in the County of York. And Thomas Brathwaite being Tenant in Tail of the Lands in question, lying in the said Parishes of Rippon and Kirkby; did by Bargain and Sale convey the same, lying (as in truth they did) in the Parishes of Rippon and Kirkby, to the intent to make a Tenant to the Praecipe in order to suffer a Common Recovery, and thereby he did Covenant to suffer the same, which Recovery was afterwards suffered of Lands in Rippon and Kirkby, but doth not say (as he ought) in the Parishes of Rippon and Kirkby; and the Verdict in effect found, That he had no Lands in the Vills; but farther, that it was the intent of the Parties, that the Lands in the Parishes should pass; and whether they should or not was the Question? It was said for the Defendant, That by this Indenture and Common Recovery the Lands which lie in the said Parishes shall pass. 1. Supposing this to be in the Case of a Grant, there if the Vill is only named, yet the Lands in the Parish of the same Name shall pass, because the Grant of every Man shall be taken strongest against himself, Owen Rep. 61. So where part of the Lands lie in B. and the Grant is of all the Lands in D. all the Lands in the Parish of D. shall pass, because in that Case the Parish shall be intended; and if the Law be thus in a Grant a fortiori in the Case of a Common Recovery, Postea Barker and Keat. which is the Common Assurance of the Land. 2. The Verdict hath found that the Defendant had no Lands in the Vills of Rippon and Kirkby, and the Court will not intent that he had any there, if not found; so that nothing passes by the Recovery, if the Lands in the Parishes do not pass, which is contrary to the intention of the Parties, and to the Rules of Law in the like Cases; for if a Man deviseth all his Lands in Dale, and hath both freehold and Lease-hold there, by this Devise the Freehold only passes, but if no freehold the Leases shall pass, Cro. Car. 293. So adjudged in the Case of Rose and Bartlet, for otherwise the Will would be void. 3. The Parish and Vill shall be both intended to support a Trial already had; as where a Venire facias ought to issue from the Parish of Dale, and it was awarded from Dale generally, 'tis well enough, * 1 Roll. Rep. 21, 27, 293. Hob. 6. 2 Cro. 263. 1 Roll. Rep. 27. A fortiori to support a Common Recovery, which has always been favourably interpreted, and yet a new Trial will help in the one case, but a Man cannot command a new Recovery when he will; and therefore the judges usually give judgements to support and maintain Common Recoveries, that the Inheritances of the Subject might be preserved; for if there be Tenant in Tail, the Reversion in Fee, or if Baron and Feme suffer a Recovery, this is a bar of the Reversion, and the Dower, and yet the intended Recompense could not go to either, Pl. Com. 515. 2 Roll. Rep. 67. 5 Co. Dormer's Case. Antea. 4. The jury have found that the intention of the Parties was to pass the Lands in the Parishes, which Intention shall be equivalent to the Words Omitted: And for that there is a notable Case in 2 Roll. Rep. f. 245. where the intent of the Parties saved an Extinguishment of a Rent. The Case was, A. makes a Lease for years, rendering Rend, and then grants the Reversion for 40 years to B. and C. which he afterwards conveyed to them and their Heirs by Bargain and Sale, and covenanted to levy a Fine accordingly, to make them Tenants to the Praecipe, to suffer a Common Recovery to another Use; the Bargain, Fine, and Recovery were all executed, and it was adjudged that they made all but one Conveyance, and that the Reversion was not destroyed, and by consequence the Rent not extinguished, for though the Bargainor might intent to destroy the Reversion, by making this Grant to them and their Heirs, yet the Bargainees could never have such Intention, and though they were now seized to another Use, yet by the Statute of Wills, their former Right is saved which they had to their proper Use; and their intention being only to make a Tenant to the Praecipe, the Statute shall be so construed that the intent of the Parties shall stand. 5. The Lands in the Parishes pass, 1 Anders. 83. because the Deed and Common Recovery make but one Conveyance and Assurance in the Law; and therefore as a Construction is not to be made upon part, but upon the whole Deed, so not upon the Deed or Recovery alone, but upon both together, 2 Co. 75. Lord Cromwel's Case. 6. Antea. 'Tis the Agreement of the Parties which governs Fines and Recoveries, and Lands shall pass by such Names as are agreed between them, though such Names are not proper; and therefore a Fine of a lieu conus is good, though neither Vill or Parish is named therein, Poph. 22. 1 Cro. 270, 276, 693. 2 Cro. 574. So if a Fine be levied of a Common of Pasture in Dale, Cro. Car. 308. Winch 122. Sid. 190, 191. Antea. 'tis good, though Dale be neither Vill or Hamlet, or lieu conus out of a Vill 2 Roll. Abr. f. 19 So in Sir George Symonds his Case, Lands as parcel of a Manor were adjudged to pass, though in truth they were used with the Manor but two years; and the reason of all these Cases is because it was the Agreement of the Parties that they should pass. Object. If it be objected, That all these Authorities are in Cases of Fines, but the Case at Bar is in a Common Recovery, which makes a great difference. Answ. The proceed in both are amicable, and not adversary, and therefore as to this purpose there is no difference between them, and for an Authority in the point, the Case of Lever and Hosier was cited, which was adjudged in this Court, Trin. 27 Car. 2 Where the Question was, Antea. whether upon a Common Recovery suffered of Lands in the Town of Sale or the Liberty thereof, Lands lying in Dale, being a distinct Vill, in the Parish of Sale should pass or not; and after divers Arguments it was allowed to be well enough, being in the Case of a Common Recovery: And so was the Case, Pasch. 16 Car. 2. in B. R. In a special Verdict the Case was, That Sir Thomas Thinn being seized of the Manor of Buckland in Tail, and of twenty Acres of Land, called and known by a particular name, which twenty Acres of Land were in Ed. the 6th's time reputed parcel of the said Manor, and always used with it; Sid. 190. sold the said Manor and all the Lands reputed parcel thereof, with the Appurtenances, of which he did suffer a Common Recovery; and it was adjudged upon great consideration, that though the Recovery did not mention the twenty Acres particularly, yet it did dock the Entail thereof, because the Indenture which leads the uses of the Recovery was of the Lands reputed parcel thereof, or enjoyed with it, and that the shortness in the Recovery was well supplied by the Deed; in which Case the Court were guided by the resolution in Sir George Symond's Case. Vide 6 Co. Sir Moyle Finch's Case. The Authorities against this Opinion are two. Antea, Lever and Hosie● 1. That of Stock versus Fox, Cro. Jac. 120. There were two Vills, Walton and Street in the Parish of Street, and a Fine was levied of Lands in Street; it was adjudged that the Lands in Walton did not pass by this Fine. But there is another Report of this very Case, by my Lord Chief justice Roll in his Abr. tit. Grants 54. where 'tis said, if there be in the County of Somerset the Vill of Street, and the Vill of Waltham within the Parish of Street, and a Man being seized of Lands in the Vill of Street, and of other Lands in the Vill of Waltham, all within the Parish of Street; and he Bargains and Sells all his Lands in Street, and having Covenanted to levy a Fine, doth accordingly levy it of Lands in Street, and doth not mention either in the Indenture or in the Fine any Lands in Waltham, the Lands lying there shall not pass; from which Report there may be a fair Inference made, That it was the Lord Rolls his Opinion, that if Waltham had been named in the Indenture, though not in the Fine, the Lands would have passed; and in this Case the Parishes are named in the Indenture of Bargain and Sale; but besides in that Case the Party had Lands both in Street and Waltham, and so the Conveyances were not in vain, as they must be here if the Lands in the Parishes do not pass. Antea. 2. The other Case is that of Baker and Johnson in Hutton 106. But this Case is quite different from that, because there was neither Vill or Parish named in the Indenture; but here the Indenture was right, for the Lands are mentioned therein to lie in the Parishes, etc. And for these Reason's judgement was prayed for the Defendant. This Case was afterwards argued in Michaelmas-Term following, by Sergeant Pemberton and Maynard for the Plaintiff, who said, Ex parte Quer. That the Government of this Nation was Ecclesiastical and Civil; the Ecclesiastical runs by Parishes, and the Civil by Vills; That a Parish is constituted by the Ecclesiastical Power, and may be altered by the King and Ordinary of the place, that the Parson was superintendent of the Parish, and the Constable of the Vill, which was also constituted by the Civil Magistrate; and from hence it is, that in real Actions which are adversary, Lands ought not to be demanded as lying in a Parish, but within a Vill, that being the place known to the Civil jurisdiction; and if a Trespass which is local be laid at Dale generally, there being both the Parish and Vill of Dale, the proof of the Trespass done in the Parish is not good, for it must be at the Villandras They agreed, that in conveying of Lands a Fine or Common Recovery of Lands in a Parish or Lieu conus was good, 2 Cro. 574. But if there be both a Vill and a Parish of the same Name and severally bounded, if the Vill be only named without the Parish, nothing doth pass, but what is in the Vill, because where a place is alleged in Pleading it must be of a Vill, Moor 710. 1 Inst. 125. b. 2 Cro. 121. And this was the ancient way of demanding Lands in a Praecipe quod reddat, because of the Notoriety of Vills from whence Visnes do arise; and because the Vill is more particular and of more certainty than a Parish, and therefore 'tis requisite that the Demandant should be very particular in his Demand, that the Tenant may know how to make his defence, and the Sheriff of what to deliver possession. Besides a Vill is more ancient than a Parish, and Lands have been demanded within them time out of mind, so that the Demand (when 'tis doubtful of what 'tis made) shall be supposed of that which is most ancient; and such Construction is most conformable to the like Cases, for Additio probat Minoritatem; and therefore if Father and Son are both of one Name, and mention is made of one without an addition of Junior the Law intends the Father; so the Vill being more ancient than the Parish, that shall be intended if the Parish is not named. In 2 Anderson 124. Hartwel, Rode and Ashen were several Vills in the Parish of Rode, the King granted all his Tithes in Rode and Ashen in tenura Richardi Wake, and at the time of the Grant the Tithes of Hartwel were in the Tenure of Wake; it was adjudged in the King's Bench that the Tithes in Hartwel did pass, but that judgement was reversed in the Exchequer Chamber, because Rode could not be * In a Praecipe it must be intended a Vill if a Parish be not named, because Vills are known at the Common Law, but not Parishes, those were constituted by the Council of Lions, but 'tis otherwise in Grants. Owen 61. intended a Parish and so to comprehend Hartwel, but must be intended a Vill distinct from a Parish; and so the Tithes of Hartwel being also a Vill could not pass by the Grant of them in Rode; this also was the Opinion of Popham, Owen 60. But Gawdy and Fenner were of another Opinion. As to the finding of the jury, that doth not help if the Recovery be not full, for they may expound, but they cannot enlarge each other; In a Formedon, nient comprise in the Record and not what is comprised in the Deed is the Plea. Things upon a Record are open to the View of all People, but a Deed is a Pocket Record, and the persons whom it concerneth cannot come at the sight of it; so Fines are open and to be seen by all, and are to be proclaimed, but according to this Interpretation Deeds should be also proclaimed. And there is a manifest difference between things contained in a Fine and in a Deed; for a Fine of a Tenement is not good, but a Deed of a Tenement is well enough, but will not help the Fine; and therefore Men should not go out of the Rules of the Law to help a Mistake: For which Reasons they prayed judgement for the Plaintiff. But the whole Court were of Opinion that the Lands in the Parishes did well pass; for as Fines and Recoveries did grow in use, and are now become Common Assurances, they are to be favoured in the Law: And it hath been a Rule, that even in doubtful things Constructions shall be made to support a Deed if possible, Ut res magis valeat quam pereat, Co. Lit. 183. By Rippon generally the Vill shall be intended, but stabitur praesumptio donec probetur in contrarium, and that is proved by the Deed which shows where the Lands lie. Indenture by an Infant to declare Uses of a Fine or Recovery, make but one Conveyance, otherwise he might avoid it as he may a Deed by Infancy. Hob. f. 6. 2 Cro. 676 Both the Indenture and Recovery being one Conveyance, must be expounded so that every part may stand; besides 'tis apparent by the intent of the Parties (which the jury have also found) that the Lands in the Parishes should pass. In the Case of Brock and Spencer a Trespass was laid in Hursly, and it was not said whether Vill or Parish; the Defendant pleaded that the Lands were held of the Manor of Marden in the Parish of Hursley, etc. and the Venire Facias was the Vicineto only, and not the Vicineto Parochiae Hursley, and it was adjudged good, for the Vill and the Parish shall be understood to be the same. And as to this purpose they were all of Opinion that there was no difference between a Fine and Recovery; 'tis true, the Law originally took notice of a Vill only, because the division of a County into Parishes was of Ecclesiastical distribution; but now by process of time that distinction is taken notice of in in Civil Affairs; and the Law hath great regard to the Usage and Practice of the People, the Law itself being nothing else but common Usage, with which it complies, and altars with the exigency of Affairs; it was but lately that the Cursitors would put the Word Parish into a Writ; for if a Note was delivered to them of Lands in the Parish of Dale, they used always to make it of Lands in Dale, till the Court ordered them to do otherwise; so that though the Common Usage was so formerly 'tis now otherwise, and the Reason of things changing the things themselves also change. And if this Recovery should not be construed to pass the Lands, the intention of the Parties would fail; 'tis true there is no Authority express in the point to guide this judgement, nor is there any against it; but if such should be, the Opinion of the Court is not to be bound against apparent Right; and 'tis for the honour of the Law that Men should enjoy their Bargains according as they intended; for which Reasons judgement was given for the Defendant. Goffe. versus Elkin. THE Condition of a Bond was, Affirmative Plea where it ought to be particular, where not. That if the Plaintiff shall seal to the Defendant a good and sufficient Conveyance in the Law of his Lands in Jamaica, with usual Covenants in such manner as by the Defendants Council shall be advised; then if the Defendant should thereupon pay unto the Plaintiff such a Sum of Money, etc. the Condition should be void: In Debt brought upon this Bond, the Defendant (after Dyer of the Condition) pleads that Mr. Wade a Councillor at Law, did advise a Deed of Bargain and Sale from the Plaintiff to the Defendant with the usual Covenants, of all his Lands in Jamaica, and tendered the Conveyance to the Plaintiff, who refused to seal the same, and so would discharge himself of the Condition, the Money being not to be paid unless the Assurance made. To this Plea the Plaintiff demurred by Sergeant George Strode. 1. Because the Defendant hath not showed the Conveyance, and an affirmative Plea ought to be particular, and not so general as this; for to plead generally quod exoneravit is not good, but it must be showed how; and so it was adjudged in the Case of * 2 Cro. 165, 359, 363, 503, 634. Sid. 106. 2 Co. 4. a. Cro. Car. 383, 384. 2 Leon. 214. Horseman and Obbius, where the Condition was to indemnify Lands from the yearly Rent of 20 l. during the Demise; the Defendant pleaded quod à tempore confectionis scripti obligatorii hucusque exoneravit, etc. And upon Demurrer as here, it was held no good Plea. 2. The Matter of the Condition consists both of Law and Fact, and both aught to be set out; the preparing of the Deed is Matter of Fact, and the Reasonableness and Validity thereof is Matter of Law, and therefore they ought to be set forth that the Court may judge thereof. * Hob. 107. In 22 E. 4.40. The Condition of a Bond was, that the Defendant should show the Plaintiff a sufficient discharge of an Annuity, who pleaded that he tendered a good and sufficient discharge in general without setting it forth; it was not good. Mod. Rep. 67. 3. The Plea is, that the Indenture had the usual Covenants, but doth not set them forth, and for that cause 'tis also too general. In 26 H. 8. 1. The Condition was for the performance of Covenants, one whereof was, that he should make such an Estate to the Plaintiff as his Council should advise: The Defendant pleaded that he did make such Conveyance as the Council of the Plaintiff did advise, and the Plea was held ill and too general, because he shown not the Nature of the Conveyance, and yet performance was pleaded according to the Covenant. But notwithstanding these Exceptions the whole Court were of Opinion that this Plea was good; for if the Defendant had set forth the whole Deed verbatim, yet because the Lands are in Jamaica, and the Covenants are intended such as are usual there, the Court cannot judge of them, but they must be tried by the Iury. He hath set forth that the Conveyance was by a Deed of Bargain and Sale, which is well enough; and so it had been if by Grant, because the Lands lying in Jamaica pass by Grant, and no Livery and Seisin is necessary; if any Covenants were unreasonable and not usual they are to be showed on the other side: And so judgement was given for the Defendant. Spring versus Eve. Verdict cures the misrecital of the time of the Session of Parliament. DEBT upon the Statute of 29 Eliz. cap 4. by the Sheriff for his Fees for serving of an Execution: After Verdict for the Plaintiff, it was moved in an arrest of judgement by Sergeant Pemberton, because the time of holding the Parliament was misrecited, being mistaken in both the Statute Books of Poulton and Keble as it appeared by the Parliament Roll, whereupon judgement was stayed till this Term; and the Court had Copies out of the Rolls of the time when the Parliament was held, and they were all clear of Opinion that the time was mistaken in the Declaration, and so are all the Precedents; for the Plaintiff here declared, that this Statute was made at a Session of Parliament by Prorogation held at Westminster, 15 Febr. 29 Eliz. and there continued till the dissolution of the same; whereas in truth the Parliament began 29 Octob. and not on the 15th of February; for it was adjourned from that time to the 15th of February, and then continued till it was dissolved. My Lord Coke in his 4th Institutes fol. 7. takes notice of this mistake in the printed Books. But the Court were all of Opinion, Curia. that though it was mistaken and aught to have been otherwise, yet being after * Dyer 95. Yelvert. 127. 2 Cro. 111. pl. 9 Br. Abr. tit. Parl. 87. Verdict 'tis well enough, and the rather because this is a particular Act of Parliament, and so they are not bound to take notice of it; and therefore if it be mistaken the Defendant ought to have pleaded Nul tiel Record; but since he hath admitted it by Pleading they will intent that there is such a Statute as the Plaintiff hath alleged, and they could not judicially take notice of the contrary. The Sergeant perceiving the Opinion of the Court desired time to speak to it being a new Point, and told the Court that they ought to take notice of the Commencement of private Acts, which the whole Court denied. And the Chief justice said, that they were not bound to take notice of the Commencement of a general Act, for the Court was only to expound it; and though this had not been in the Case of a particular Act (where 'tis clear the Defendant ought to plead Nul tiel record) yet being after Verdict 'tis well enough, because the Party took no benefit of it upon the Demurrer, and because of the multiplicity of Precedents which run that way. So in the Case upon the Statute of Tithes, though it be mistaken, yet it hath often been held good; as if an Action be brought upon that Statute for not setting out of Tithes, declaring quod cum quarto die Novembris anno secundo Edw. 6. It was Enacted, etc. and the Parliament began 1 Ed. 6. and was continued by Prorogation until 4 Novembris, yet this hath often been held good, and Multitudo errantium tollit peccatum. And though in this Case the Parliament was adjourned, but in that upon the Statute of Ed. 6. it was prorogued, yet the Chief justice said, that as to this purpose there was but little difference between an Adjournment and a Prorogation; for an Adjournment is properly where the House adjourn themselves, and a Prorogation is when the King adjourns them. But justice Atkins doubted whether the Court ought not to take notice of the Commencement of a general Act, and could have wished that there had been no such resolution as there was in the Case of Partridge and Strange in Pl. Commentaries; for that he was satisfied with the Argument of Sergeant Morgan in that Case, who argued against that judgement, and held that he, who vouched a Record and varies either in the Year or Term hath failed of his Record: But since there had been so many Authoritis since in confirmation of that Case he would say nothing against it. But he held that there was a manifest difference between an Adjournment and a Prorogation; for an Adjournment makes a Session continue; but after a Prorogation all must begin de novo; and that an Adjournment is not always made by themselves, for the Chancellor hath adjourned the House of Péers ex mandato Domini Regis; and Queen Elizabeth adjourned the House of Commons by Commission under the Great Seal. 4 Iust. 7 Mires versus Solebay. Servant shall not be charged in Trover for taking Goods by the Command of his Master. IN a Special Verdict in Trover and Conversion, the Case was this, viz. H. being possessed of several Sheep sells them in a Market to Alston, but did not deliver them to the Vendée, and afterwards in that very Market they discharge each other of this Contract, and a new Agreément was made between them, which was, that Alston should drive the Sheep home and depasture them till such a time, and that during that time H. would pay him so much every Week for their Pasture; and if at the end of that time (then agreed between them) Alston would pay H. so much for his Sheep (being a price then also agreed on) that then Alston should have them. Before the time was expired H. sells the Sheep to the Plaintiff Mires, and afterwards Alston sells them to one Marwood, who brought a Replevin against the Plaintiff for taking of the Sheep; and the Officers together with Solebay the Defendant (who was Servant to Marwood) did by his Order, and in assistance of the Officers drive the Sheep to Marwood's Grounds where they left them. The Plaintiff demands the Sheep of Solebay, and upon his refusal to deliver them, brings this Action against the Servant, and whether it would lie or not was the Question. It was urged at the Bar, that the Action would not lie against the Defendant, because he had not the possession of the Goods at the time of the Action brought; for he presently put them into his Master's Ground: And it was said, if A. find Goods and S. takes them away before the Action brought Trover will not lie against A. but 'tis otherwise, if he sell them. In this Case it would have been a Breach of Trust in the Servant to have delivered the Goods belonging to his Master, to another: 'Tis true, if there be a Conversion, though the possession be removed before the Action brought, yet the Action will lie, but that is because of the Conversion. Many Cases were put where the Servant is not liable to an Action for a thing done by the Command of his Master; and where a Bailiff, who is but a Servant to the Sheriff, shall not be charged in a false Return made by his Master, Cro. Eliz. 181. 1 Roll. Abr. 94, 95. So if a Smith's Man prick an Horse, the Action lies against the Master and not against the Servant. The Court before they delivered any judgement in this Case premised these two things: viz. 1. That 'tis necessary in Trover to prove a Property in the Plaintiff, and a Trover and Conversion in the Defendant: And it was said by justice Atkins (but denied by the Chief justice) that though Goods are sold in a Market, yet the property is not changed till the delivery, for which he cited Keilway 59, 77. But the Court held clearly in this Case, that the first Sale to Alston was defeated by the Agreement of the Parties afterwards; for when a Bargain is made, and all the Parties consent to dissolve it, and other Conditions are proposed, the new Agreement destroys the former Bargain. And the Chief justice said, that if an Horse was bought in a Market, for which the Vendeé is to pay 10 l. if the ready Money be not paid the property is not altered, but the Party may sell him to another. 2. This new Agreement to have the Sheep, if Alston would pay such a Sum of Money at a future day, will not amount to a Sale, and the new property is changed, and consequently the Sale by H. to the Plaintiff before the day is good, and so the property of the Sheep is in him. But by the Opinion of the whole Court the Action would not lie against the Defendant. 1. The Defendant could be guilty of no Conversion, unless the driving the Cattle by virtue of the Replevin would make him guilty; but at that time the Sheep were in custodia Legis, and the Law did then preserve them so that no property can be changed, and if so, then there could be no Conversion. 2. The Action will not lie against the Servant, for it being in Obedience to his Master's Command, though he had no Title, yet he shall be excused: And this Rule justice Scroggs said would extend to all Cases where the Master's Command was not to do an apparent Wrong; for if the Master's Case depended upon a Title, be it true or not, 'tis enough to excuse the Servant; for otherwise it would be a mischievous thing, if the Servant upon all occasions must be satisfied with his Master's Title and Right before he obey his Commands; and 'tis very requisite that he should be satisfied if an Action should lie against him for what he doth in Obedience to his Master: But it was said, the * Wine and Rider, antea. Servant cannot plead the Command of his Master in Bar of a Trespass; and it was likewise said, that in this Case the driving of the Cattle by the Servant to the Grounds of his Master, or a Strangers helping to drive them without being requested, is justifiable. 3. Because what was done by the Defendant was done in Execution of the Process of the Law, and he might as well justify as the Officer; for if he forbidden the Defendant to have assisted him, yet his assisting him afterwards would not have made him guilty, because done in Execution of the Law. 4. Because 'tis not found that the Servant did convert the Sheep to his own use; for the special Verdict only finds the Demand and the Refusal, which is no Conversion; and though 'tis an Evidence of it to a jury, yet 'tis not Matter upon which the Court can give judgement of a Conversion, 10 Co. 57 And therefore the jury should have found the Conversion as well as the Demand and Refusal, 2 Bulstr. 313. 1 Roll. Abr. 5. like the Case in 2 Roll. Abr. 693. In an Assize of Rent seek, upon Nul tort pleaded the jury found a Demand and Refusal, & sic disseisivit; it was held to be no good Verdict, for the Demand aught to have been found on the Land, and shall not be so intended unless found. The Plaintiff here hath set forth in his Declaration a Request to deliver; then a Refusal and Conversion too, which shows that they ought to be found, because distinct things; and the finding of the Demand and Refusal was only a presumptive, not a conclusive proof of the conversion; and if the jury themselves know that there was no conversion, yet the Plaintiff hath failed in his Action; as if a Trover be brought for cutting Trees and carrying of them away, and the jury know that though the Defendant cut them down, yet they still lay in the Plaintiffs Close, this is no conversion. And though it hath been strongly insisted at the Bar, that the Court shall intent a conversion unless the contrary appeared, and are to direct a jury to find the demand and refusal to be a conversion, and the Opinion of Dodridge and Croke, in 1 Roll. Rep. 60. was much relied on, where Adam's recovered against Lewis 40 l. in the Court of Exon, and three Butts of Sack were taken in Execution, and the Plaintiff deposited 22 l in the Hands of the Defendant to prevent the Sale of the Sack, which was to be a pledge to return it upon request, if the Defendant was not paid before the next Court day; the jury found the Debt was not paid, and that no request was made to return the Sack, but that the Plaintiff requested the Defendant to return the Money: Yet it was held by those two justices, That the Law would supply the proof of a * Bulstr. 308. Cro. Eliz. 495. gold's. 152. Moor 460. Styles 361. conversion though it was not found, for it shall be presumed that the Money was denied to the Plaintiff, and that the Defendant might use it himself; and because no other proof could be made, that very denial shall be a conversion in Law; so a denial of a Rent Seck after demand is a disseisin, Pl. Com. 92. b. much more in personal Actions where the substance is found, 'tis well enough, 1 Inst. 282. a. But the Court said, That notwithstanding this Authority, they would not intent a Conversion, unless the jury had found it, especially in this Case, because they ought to have found it to make the Servant liable, for if the conversion was to the use of his Master, there is no colour for this Action to be brought against the Defendant, but it ought to be brought against the Master. Whereupon a Ve. fa. de novo was prayed to help the Insufficiency of the Verdict, the conversion not being found; but the Court said it was to no purpose to grant a new Trial, unless the Plaintiff had a new Case; and so judgement was given for the Defendant. Bill versus Nchol. Variance between the Record pleaded and the Record itself. IN an Action brought in the Court of Exchequer, the Defendant pleaded another Action depending against him for the same matter in the Common Pleas, and upon nul tiel Record replied by the Paintiff, a Day was given to bring in the Record, and when it was brought in it appeared that there was a variance between the Record in the Common Pleas, as mentioned in the Defendants Plea, and the Record itself; for the Defendant in his Plea had alleged one Gerrard to be Attorney instead of Gardener, who was Attorney upon Record, and whether this was a failure or not of the Record, was the question. It was said on the Defendants side, that it was such a variance, that it made it quite another Action; and on the Plaintiffs side it was said, that an immaterial variance will not prejudice where the substance is found, 7 H. 4. 1. Bro. Failure, pl. 2. 15. Curia advisare vult. Forest qui tam, etc. versus Wire. Action lies in the Courts at Westminster, upon the Statute of 5 Eliz. but not an Information. 3 Cro. 316. DEBT upon the Statute of 5 Eliz. cap. 4. for using the Trade of a Silk Weaver in London, not having been an Apprentice seven years; the Action was brought in this Court, and laid in London, and tried by Nisi prius, and a Verdict for the Defendant; and now the Plaintiff to prevent the payment of Costs, moved by Mr. Ward against his own Action, and said, that it will not lie upon this Statute in any of the Courts of Westminster; for 'tis not only to be laid (as here) in the proper County, but 'tis to be brought before the justices in their Sessions, and this is by force of the Statute made 31 Eliz. cap. 4. and 21 Jac. cap. 4. Which Enacts, That all Informations upon Penal Statutes must be brought before the Justices of the Peace, in the County where the Fact was committed. But the Court were clear of 2 Cro. 178. Styles 383. By the Opinion of Rolls, Cro. Car. 112. Opinion, That the Action may be brought in any of the Courts of Westminster, who have a concurring jurisdiction with the justices, and so they said it hath been often resolved. Attorney General versus Alston. AN Inquisition upon an Account stated went out to inquire what Lands one haver's had in the twentieth year of this King, or at any time since, Where the King's Title is not precedent to that of the Tertenant, the Lands of his Receiver shall not be liable by the Statute of the 13th Eliz. he being the Receiver General in the Counties of Norfolk and Huntingdon. The jury found that he was seized of such Lands, etc. whereupon an Extent goes out to seize them into the King's Hands, for payment of 1100 l. which he owed to the King. Alston the Tertenant pleads that haver's was indebted to him, and that he was seized of those Lands in 20 Car. 1. which was before the Debt contracted with him, and that he became a Bankrupt likewise before he was indebted to the King, and thereupon these Lands were conveyed to the Defendant by assignment from the Commissioners of Bankrupcy, for the Debt due to him from haver's, absque hoc that he was seized of these Lands at the time he became indebted to the King. The Attorney General replies, That he was seized of these Lands before the Commisson of Bankrupcy issued, and before he became a Bankrupt, and that at the time of his Seisin he was Receiver, and accountable for the receipt to the King, and being so seized in the 20the year of this present King, he was found in Arrear 1100 l. for the payment whereof he was chargeable by the Statute of the 13 Eliz. cap. 4. Which subjects all the Lands of a Receiver which he hath or shall have in him during the time he remains accountable, and so prays that the King's Hands may not be amoved: To this the Defendant demurred. And Sawyer for him held, that the Replication was ill both in form and Substance. 1. It doth not appear that the Defendant continued Receiver from the time he was first made, as it ought to be, or else that he was Receiver during his Life; for if a Man is Receiver to the King, and is not indebted but is clear, and sells his Land and ceases to be Receiver, and afterwards is appointed to be Receiver again, and then a Debt is contracted with the King, the former Sale is good. 2. The Replication is a departure from the Inquisition, which is the King's Title, for the Lands of which Inquiry was to be made, were such which haver's had 20 Car. 2. And the Defendant shows that haver's was not then seized thereof, but makes a good Title to himself, by Indenture of Bargain and Sale made to him by the Commissioners of Bankrupcy, and so the Attorney General cannot come again to set up a Title precedent to the Defendant, for that is a departure; 'tis enough for the Defendant that he hath avoided the King's Title, as alleged; and though Mr. Attorney is not bound to take Issue upon the Traverse, yet he cannot avoid waveing both the Title of the Defendant and the King, by insisting upon a new matter. It was agreed, That the King had two Titles, and might either have brought his Inquisition grounded upon the Debt stated, or upon the Statute of the 13th of Eliz. upon haver's his becoming Receiver; but when he hath determined his Election, by grounding it upon the Debt stated, he cannot afterwards have recourse to the other matter, and bring him to be liable from the time of his being Receiver; as if an Inquisition goes to inquire what Lands the Debtor of the King had such a day when he entered into a Bond, if there be an answer given to that, Mr. Attorney cannot afterwards set up a precedent Bond, because 'tis a departure, and the Statute itself vests no Estate in the King, but makes the Receivers Lands liable as if he had entered intred into a Statute Staple. The Inquisition therefore should have been grounded upon the Statute, and then the Defendant might have pleaded the Act of Indemnity, of which he might have the benefit, but if not he may be let into the Equity of the Statute of the 33 H. 8. cap. 39 which gives liberty to Purchasers to have contribution, and to plead sufficient matter if they have any in discharge of the Debt. Ex parte Quer. But on the other side it was said that the Replication was good, for if the Sale was after his being Receiver, though before he became indebted, yet by the Statute of the 13 Eliz. the Lands are subject to a Debt contracted afterwards, because it hath a Retrospect to the time he was first Receiver. Pl. Com. 321. Dyer 160. By the Common Law both the Body and Lands of the King's Debtor were liable from the time he became indebted; but because such Debtors oftentimes sold those Lands which they had whilst they were Officers, and so the King was defeated, therefore was this Statute made to supply that defect of the Common Law, by which Statute all the Lands he had at any time during his continuance in the Office were made liable. And though it may be objected, That because of this Inquisition the King is limited to a time, Viz. that inquiry should be made what Lands haver's had in the 20th year of the King, yet it was said the Inquiry may be general. The Elegit anciently left out the time, because the Law doth determine from what time the party doth become liable; so that the question is about the King's Title, which if it appear to precede that of the Tertenant, than the King's Hands are not to be amoved; and thereupon judgement was prayed for him, Bro. Prerogative 59 Curia adversare vult. Barker versus Keat. IN a Special Verdict in Ejectione firmae, Reservation of a Pepper Corn a good consideration to raise an use to make a Tenant to the Praecipe. Mod. Rep. 262 the jury made a special Conclusion by referring to the Court, whether there was a good Tenant to the Praecipe or not, which was made by a Bargain and Sale, but no Money paid, nor any Rent reserved but that of a Pepper Corn, to be paid at the end of six Months, upon demand, and the Release and Grant of the Reversion thereupon was only for divers good Considerations. The Question was if this Lease upon which no Rent was reserved, but that of a Pepper Corn, be executed by the Statue of Uses or not, if it be, Cro. Jac. 604. Jones 7. 1 Cro. 110. 5 Rep. 124. b. than there is no need of the Entry of the Lessee, for the Statute will put him in actual possession, and then the Inheritance by the Release or Grant of the Reversion will pass. But if this Lease be not within the Statute, because no Use can be raised for want of a Consideration, than it must be a Conveyance at the Common Law, Lit. Sect. 465. Co. Lit. 46. b. and so the Lessee ought to make an actual Entry as was always usual before the making of the Statute. Sergeant Waller and Maynard argued that here was no Consideration to raise an Use, for the reservation of a Pepper-Corn is no profit to the Lessor, 'tis not a real and good Rent; For so small and trivial a matter is no Consideration, for that which must be a good Consideration ought to be Money, or some other valuable thing. Then this Conveyance is not executed by the Statute of uses, and if so 'tis not good at the Common Law, it being only a Lease for years, and no Entry, without which there can be no possession, and if not then there can be no Reversion upon which the Release may operate, 'tis only an interresse termini, and so was the Opinion of my Lord Coke since the Co. Lit. 270. making of this Statute. 1 Leon. 194, 195. And that no Use was raised here, the Case of my Lord Paget was cited, to which this was compared; My Lord being seized in Fee, Covenanted to stand seized to the Use of Trentham and others, in consideration of payment of his Debts out of the Profits of his own Estate, this was adjudged a void Use, because there was no consideration on Trentham's part to raise it, the Money appointed to be paid, being to be raised out of the Profits of my Lord's Estate. The Words of the Lease are Demise, Grant, etc. which are Words at the Common Law, Co. Lit. 45. b. and 'tis not possible that a future executory Consideration should raise a present Use, for the Pepper Corn is not to be paid till the end of six Months; and as this Consideration is executory, so it is contingent too, for the Lessor might have released before the expiration of the six Months. If the Case of * Cro. Jac. 604. pl. 32. Lutwitch and Mitton be objected, where it was resolved by the two Chief justices and Chief Baron, that upon a Deed of Bargain and Sale of Lands, where the Bargainee never entered, and the Bargainor reciting the Lease, did grant the Reversion expectant upon it; Cro. Car. 110, 400. that this was a good grant of the Reversion, from which the Possession was immediately divided, and was executed and vested in the Bargainee, by virtue of the Statute of uses. This is no Objection to the purpose, because in that Case the Bargainor was himself in actual possession. So that if there be no good Tenant to the praecipe in this Case, though all that join in it are Estopped to say so, yet the Tenant in Tail who comes in above, is not barred, 5 H. 5. 9 But on the oath side it was said, that the Lessee was in possession by the Statute, for the Word Grant being in the Lease, and the reservation being a Pepper Corn, that will amount to a Bargain and Sale, though it hath not those precise words in it, 8 Co. 94. Pl. Com. 308. Dyer 146. b. contra. But if it should not, yet another Use may be averred than what is in this Lease, like Bedel's Case, 7 Co. 40. b. Where a Man in consideration of Fatherly Love to his eldest Son, did covenant to stand seized to the Use of him in Tail, and afterwards to the use of his second Son; there, though the consideration respected his eldest Son only in Words, yet a consideration which is not repugnant to it, may be averred; and though an Entry is not found, yet it shall not be intended, since the jury have not found the contrary. North Chief justice, At first when this sort of Conveyance was used, the Lessee upon the Lease for a year, did always make an actual Entry, and then came the Release to convey the Reversion; but that being found troublesome, the constant Practice was to make the Lease for a year, by the Deed of Bargain and Sale, for the consideration of five shillings or some other small sum, and this was held and is so still to be good without any actual Entry, 2 Cro. 604. and the Bargaineé thereby is capable of a Release (though he cannot bring an Action of Trespass without Entry) for when Money is the Consideration of making the Bargain and Sale, 'tis executed by the Statute of uses, and so the Release upon it is good; but if the Deed be not executed, 'tis otherwise. But this being to support a Common Recovery, Antea Addison and Otway. was to be favoured; and therefore the Court took time to consider till the next Term; and then The Chief justice said, That if a real Action be brought against A. who is not Tenant to the Praecipe, and a Recovery be had against him, the Sheriff can turn him out who is in possession; but if he who is not in possession comes in by Vourcher, he is estopped to say afterwards that he was not party to the Writ, so that he who is bound must be Tenant or Vouchee, or claim under them. Conveyances have been altered, not so much by the Knowledge of the Learned, as by the Ignorance of Unskilful Men in their Profession. The usual Conveyance at Common Law, was by Feoffment, to which Livery and Seisin were necessary, the Possession being given thereby to the Feoffee; Antea Lord Salisburies' Case. but if there was a Tenant in Possession and so Livery could not be made, than the Reversion was granted, and the particular Tenant always attorned, and upon the same reason it was that afterwards a Lease and Release was held a good Conveyance to pass an Estate, but at that time it was made no question but that the Lessee was to be in actual Possession before the Release. Afterwards uses came to be frequent, and Settlements to uses were very common, by reason whereof many inconveniencies were introduced, to prevent which the Statute of the 27th of H. 8. was made, by which the Use was united to the Possession; for before that Statute uses were to be executed according to the Rules of Equity, but now they are reduced to the Common Law, and are of more certainty, and therefore are to be construed according to the Rules of Law. At the Common Law when an Estate did not pass by Feffoment, the Lessor or Vendor made a Lease for years, and the Lessee actually entered, and then the Lessor granted the Reversion to another, and the Lessee attorned, and this was good. Afterwards when an Inheritance was to be granted, then also was a Lease for years usually made, and the Lessee entered as before, and then the Lessor released to him, and this was good. But after the Statute of uses, it became an Opinion, That if a Lease for years was made upon a valuable Consideration, a Release might operate upon that without an actual Entry of the Lessee, because the Statute did execute the Lease and raised an Use presently to the Lessee. Sir Francis Moor Sergeant at Law was the first who practised this way. Nota. But because there were some Opinions that where Conveyances may enure two ways, the Common Law shall be preferred, unless it appear that the party intended it should pass by the Statute, thereupon the usual course was to put the Words Bargain and Sale into the Lease for a Year, to bring it within the Statute, and to allege that the Lease was made to the intent and purpose that by the Statute of uses the Lessee might be capable of a Release; but notwithstanding this, Mr. Noy was of the Opinion, That this Conveyance by Lease and Release could never be maintained without the actual Entry of the Lessee. This Case goes farther than any that ever yet came into judgement, for Money is not mentioned here to be the Consideration, or any thing which may amount to it, unless the Pepper Corn, which he held to be a good Consideration. The Lease and Release are but in nature of one Deed, and then the intent of the Parties is apparent that it should pass by the Statute, and eo instanti that the Lease is executed, the Reservation is in force. The Case put by Littleton in Sect. 459. is put at the Common Law, and not upon the Statute; where he saith, That if a Lease be made for years, and the Lessor releaseth all his Right to the Lessee before Entry, such Release is void, because the Lessee had only a Right and not the Possession, which my Lord Coke in his Comment upon it, calls an interest termini, and that such Release shall not enure to enlarge the Estate without the Possession, which is very true at the Common Law, but not upon the Statute of uses. And therefore judgement was given by the whole Court, Judgement. that the Word Grant in the Lease will make the Land pass by way of Use; that the Reservation of a Pepper Corn was a good consideration to raise an Use to support a Common Recovery; that this Lease being within the Statute of uses, there was no need of an actual Entry to make the Lessee capable of the Release; for by virtue of the Statute he shall be adjudged to be in actual possession, and so a good Tenant to the Praecipe; and judgement was given accordingly in Michaelmas Term following. Kendrick versus Bartland. THE Plaintiff brought an Action on the Case for stopping the Water going to his Mill with a Continuando, etc. Continuando laid after a Nuisance abated, yet Damages shall be recovered for what was done before The Defendant pleads that the stopping was contra voluntatem, and that tali die, which was between the first and the last day laid in the Continuando, the Plaintiff himself had abated the Nuisance, and so he had no cause of Action. To this Plea the Plaintiff demurred, and Sergeant Baldwyn, who argued to maintain the Plea, did not rely upon that part of it where the Defendant saith, that the stopping of the Water was involuntary, because he doing the thing it could not be contra voluntatem; but the Question would be whether the Plaintiff had any cause of Action to recover damages after the Abatement of the Nuisance; and he said that he had abated it before the Action brought, and counted for damages after the Abatement, for which he had no Cause of Action, and this he had confessed by his Demurrer. But the Court were of Opinion, that it was not a good Plea, and took this difference between a Quod permittat, or an Assize for a Nuisance, and an Action on the Case for the same; for the end of a Quod permittat or an Assize was to abate the Nuisance, 2 Cro. 207, 618 but the end of an Action on the Case was to recover damages; therefore though the Nuisance was removed the Plaintiff is entitled to his damages that accrued before; and 'tis usual in Actions of this nature to lay the Sid. 319. Continuando for longer time than the Plaintiff can prove, but he shall have damages for what he can prove, and so here he shall recover the damages which he sustained before the Abatement: And thereupon judgement was given for the Plaintiff. Walwyn versus Awberry, and others. Tithes of a Rectory shall not be sequestered for Repairs of the Chancel. Mod. Rep. 258. TRespass for the taking and carrying away of four Loads of Wheat, and four Loads of Rye, etc. The Defendants justify, for that the Plaintiff is Rector of the Rectory impropriate of B. and that the Chancel was out of Repair, and that the Bishop of Hereford, after Monition first given to the Plaintiff, had granted a Sequestration of the Tithes of the Rectory for the repairing the Chancel; and that the Defendants were Churchwardens of the Parish; and that the particulars mentioned in the Declaration were Tithes belonging to the Plaintiff as Rector aforesaid; and that by virtue of the said Commission they took the same for repairing of the said Chancel, and that for these Tithes so taken they had accounted to the Bishop. To this the Plaintiff demurred. The Question was, whether an Impropriate Rectory be chargeable for the Repairs of the Chancel by the Sequestration of the Tithes by the Bishop; and those who argued in the negative for the Plaintiff could not deny, but that Church Reparations did belong to the Ecclesiastical Courts, and that as often as Prohibitions have been prayed to that jurisdiction, Consultations have been as often granted; notwithstanding in many Cases the Rates for such Reparations have been very unequally imposed, and the reason is because those Courts have original jurisdiction of the Matter. It was admitted also, that Parishioners are bound to repair the Church, and the Rector the Chapel, and in this respect of their Lands; and therefore if a Man hath Lands in one Town and dwell in another, he shall be contributory to the Reparation of that Church where his Lands are, and not where he inhabits. And that all this was by the common Custom of England long before the making of the Statute of 31 H. 8. cap. 13. by which Parsonages were made Lay Fees; but than it must be understood that this was no real Duty incumbent upon them, but was a personal burden for which every Parishioner was chargeable proportionably to the quantity of Land which he held in the Parish; in which Case if he refused to be contributory the Ordinary did never intermeddle with the possessions, but always proceeded by Ecclesiastical Censures, as Excommunication of the Party refusing, which is the proper remedy. But in case of an Appropriation in the Hands of an Ecclesiastical Corporation, as Dean and Chapter, etc. there if a Refusal be to contribute to the Repairs, the Ordinary may sequester; and the reason is because a Corporation cannot be excommunicated. The Ordinary may also sequester in things of Ecclesiastical Cognizance, as if the King do not present; so he may take the Profits within the six Months, that the Patron hath to present, and apply them to the Pastor of the Church by him recommended, because the Ordinary hath a provisional Superintendency of the Church; and there is a necessity that the Cure should be supplied until the Patron doth present, and this is a kind of Sequestration. But in some Cases the Ordinary could not sequester the Profits belonging to Spiritual Persons, though he was lawfully entitled to them for a particular time and purpose: For by the Statute of 13 Eliz. cap. 20. 'tis Enacted, That if a Parson make a Lease of his Living for a longer time than he is resident upon it, that such Lease shall be void, and he shall for the same lose one years' Profits of his Benefice, to be distributed by the Ordinary amongst the Poor of the Parish. Now he had no Remedy to recover the Years Profits, but in the Ecclesiastical Court; he could not sequester, and to give him Authority so to do a supplemental Statute was made five years afterwards in the 18th year of the Queen's Reign cap. 11. by which Power is given him to grant a Sequestration; so that if he could not sequester in a Case of which he had a jurisdiction by a precedent Statute, à fortiori he cannot in a Case exempted as this is from his jurisdiction. But admitting a Sequestration might go, than this inconveniency would follow, that if other Lands should be sequestered for the same purpose, the former Sequestration could not be pleaded to discharge them, because the interest is not bound thereby, no more than a Sequestration out of Chancery is pleadable to an Action of Trespass at the Common Law. This Case cannot be distinguished from that of Jefferies in 5 Co. and from what the Civilians testified to the Court there, viz. That the Churchwardens and greater part of the Parishioners upon a general warning given may make a Taxation by Law, but the same shall not charge the Land, but the person in respect of his Land; so that 'tis he that is chargeable and may be excommunicated in case of refusal to contribute, but his Lands cannot be sequestered, because 'tis not the business of the Ordinary to meddle with the temporal possessions of Laymen, but to proceed against them by Ecclesiastical Censures; and the Parishioners Lands may be as well sequestered for the Repairs of the Church, as the Lands of the Impropriator for the Repairs of the Chapel; for which Reasons it was held that a Sequestration would not lie. Ex parte Def. But on the other side it was said, that before the making of the Statute the Rector was to repair the Chancel under pain of Sequestration, which the Ordinary had power to grant in case of refusal; and that his Authority in many Cases was not abridged by the Statute: The Case of * 2 Cro. 518. Parry and Banks was cited, where in the 24th Year of H. 8. a Parsonage was appropriated to the Deanary of St. Asaph, and a Vicarage endowed, which the Bishop dissolved in the 24th Year of Queen Elizabeth, and Parry pretending that notwithstanding this Dissolution it was in the King's Hands by lapse obtained a Presentation; and it was resolved that after the Statute of Dissolutions, which made Parsonages Lay Fees, the Ordinary could not dissolve the Vicarage where the Parsonage was in a Temporal Hand, but being in that Case in the Hands of the Dean, he might. The Rector is to repair the Chancel, because of the Profits of the Glebe, which is therefore Onus reale impositum rebus & personis; and of that Opinion was Johannes de Atkin, who wrote 100 years before Lynwood, where in fol. 56. he saith, That if the Chancel was out of repair it affected the Glebe. And that the Constitution of the Canon Law is such will not be denied, Vaugh. 327. and if so Canons being allowed, are by use become parcel of the Common Law, and are as much the Law of the Kingdom as an Act of Parliament, for what is Law doth not suscipere magis aut minus. Several Cases were put where the Bishop doth intermeddle with the Profits of a Parsonage, as in the Case of a Sequestration upon a judgement obtained against a Spiritual Person, where a Fi. Fa. is directed to the Sheriff upon that judgement, and he returns Clericus beneficiatus non habens Laicum feodum; for which reason he cannot meddle with the Profits of the Glebe, but the Bishop doth it by a Sequestration to him directed. He may likewise retain for the supply of the Cure and pay only the residue, which hath been omitted on the other side. As the Ordinary might dissolve a Vicarage endowed where the Parsonage was in the Hands of a Dean, so he may sequester an Appropriation in any Spiritual Person; and there is no Statute which exempts an Impropriation from such a Sequestration, because 'tis onus real at the Common Law; and as the Lay Impropriator may sue for Tithes and receive them as before the making this Statute; 'tis as reasonable since he hath the same advantage that he should have the same Charge, and the rather because the saving in the Statute of 31 H. 8. cap. 13. doth still continue the same Authority the Bishop had before, though the possession was thereby given to the King. The Words of which are, viz. Saving to all and every person, etc. such Right which they might have had as if the Act had not been made, which must be the Right of the Ordinary and of no other person. An Impropriator pays Synodals and Procurations as well as an Appropriation in the Hands of Ecclesiastical Persons, and it would be very inconvenient if a Sequestration should not lie which would quicken them more than an Excommunication; and it was said, that in England there were above 1000 Appropriations belonging to Corporations aggregate, as Deans and Chapters, which could not be excommunicated; and if the Bishop could not sequester, than there was no remedy to repair the Chancel: For which Reasons judgement was prayed for the Defendant. But the whole Court, besides justice Atkins, held that the Lay Impropriation was not to be sequestered for the Repairs of the Chancel: And the Chief justice said, that the Repair of the Chancel was an Ecclesiastical Cause, but that the Rectory and Impropriator were Lay, and not to be sequestered as the possessions in the Hands of Ecclesiastical Corporations may, which he did agree could not be excommunicated, but the persons who made up such Corporation might. And as to the Sequestration upon a judgement it made nothing for the Matter to entitle the Ordinary to a Sequestration in this Case, because what he doth in that is in the nature of a temporal Officer; for the Sequestration is like the Fieri Facias, and being directed to the Bishop, he is in that Case (if he may be so called) an Ecclesiastical Sheriff, and by virtue thereof may do as the Sheriff doth in other Cases, that is, he may seize Ecclesiastical things and sell them, as the Sheriff doth Temporal things upon a Fieri Facias; but 'tis to be observed that he must return Fieri feci, and not Sequestrari feci upon this Writ. And as to the Saving in the Statute, that doth not alter the Case; for if any Right be thereby saved, 'tis that of the Parson, for the Parishioners have no right to sit there; indeed the Vicar may, because he comes in under the Parson. So that this Case is not to be put as at the Common Law, but upon the Statute of Dissolutions, by virtue whereof the Rectory being in the Hands of a Lay Person is become a Lay Fee, and so cannot be subject to a Sequestration; if it should, the next step would be that the Bishop would increase Vicaridges as well in the Case of an Impropriation as Appropriation, which would lessen the possessions of such as have purchased under the Act. But justice Atkins was of a contrary Opinion; he said that it was agreed by all that an Impropriator is chargeable with the Repairs of the Chancel; but the Charge was not personal but in regard of the profits of the Impropriation, which are originally the Debtor according to the first Donation. That the primary Rights of Rectories are the performance of Divine Service and the Repairs of the Chancel, and that the Profits, which are over and above, must then go to the Imprpriator, and are to be esteemed then a Lay Fee; but that those Duties are the first Rights, and therefore must be first discharged. That this Right, this duty of Repairing was certain, and therefore shall not be taken away by Implication, but by express Words in the Act, which if wanting shall remain still, and the Parties shall be compelled to repair under the same Penalties as before. But admitting it should be taken away, yet the saving in the Act extends to the Right of the Parishioners, which is not to sit in the Chancel, but to go thither when the Sacraments are administered, of which they are deprived, when 'tis out of Repair; nor can they have the use of the Church which properly belongs to them, because when the Chancel is out of Repair it not only defaces the Church, but makes it in a short time become ruinous. He denied that a Sequestration in Chancery cannot be pleaded to bar a Trespass at the Common Law; for if it be said that the Chancery have issued such Sequestrations it will be as binding as any other Process issuing according to the Rules of the Common Law. And he also denied the Case put by the Chief justice, that the Lands of the Parishioners might as well be sequestered for the repair of the Church as those of the Impropriator for repair of the Chancel, because the Profits of the Rectory might originally be sequestered, but the Lands of the Parishioner could not; and so the Cases are quite different. Judgement. But in Easter Term following judgement was given against the Defendant upon the point of Pleading, which the Court all agreed to be ill. 1. The Defendants should have averred that the Chancel was out of repair. 2. That no more was taken than what was sufficient for the repair thereof. 3. For that the Plaintiff had declared for the taking of several sorts of Grain; and the Defendant justifies the taking but of part, and saith nothing of the residue, and so 'tis a Discontinuance; and the general Words quoad residuum transgressionis will not help, because he goes to particulars afterwards and doth not ennumerate all; and thereupon judgement was given accordingly. Edward's versus Weeks. ASsumpsit. Parol discharge good before breach of Promise, but not afterwards. Mod. Rep. 262. The Plaintiff declared that the Defendant in consideration that the Plaintiff at his Request had exchanged Horses with him, promised to pay him 5 l. and he alleged a breach in the Non-performance. The Defendant pleads that the Plaintiff before any Action brought, discharged him of his Promise: And upon a Demurrer the Question was, whether after a breach of a Promise a parol discharge could be good? The Case of * Cro. Car. 383 Sid. 293. Langden and Stokes was an Authority that such a discharge had been good before the breach: viz. The Defendant promised to go a Voyage, the breach was alleged in Non-performance; and the Defendant pleaded that before any breach the Plaintiff exoneravit eum; and upon Demurrer it was held good before the breach. But here was no time agreed for the payment of this 5 l. and therefore it was due immediately upon Request, and not being paid, the Promise is broken, and the parol discharge cannot be pleaded; and of that Opinion was all the Court, and judgement for the Plaintiff, Nisi, etc. Quaere. If had pleaded such a discharge before any request of payment, wheher it had been good. Arris & Arris versus Stukely. In Scaccario. Indebitatus Assumpsit will lie for the receipt of the Profits of an Office, tho' no contract INdebitatus assumpsit for 200 l. in Money had and received to the use of the Plaintiffs: Upon Non assumpsit pleaded, the jury find a Special Verdict to this effect; viz. They find that King Charles the Second did on the 17th day of August in the 12th year of his Reign, by his Letters Patents under the great Seal, grant unto the Defendant and another the Office of comptroller of the Customs at the Port of Excester, durante bene placito; that the other person died; and that the King afterwards by other Letters Patents bearing date primo Maii in the 21st year of his Reign, did grant the said Office to the Plaintiffs, which was two years before this Action brought; and that the Defendant still and for seven years past had exercised the same upon pretence of a Right by Survivorship, and received the Profits thereof; but whether upon the whole Matter the Defendant made any such Promise as in the Declaration, they did not know, Et petunt advisamentum Curiae in praemissis; and if upon the Matter so found the Court shall be of Opinion that the Defendant made such Promise, than they say, that he did make such Promise and assess damages occasione praemissorum in narratione mentionat' add 100 l. and Costs to 53 s. and 4 d. etc. Winnington Solicitor argued, that the first Patent was determined by the death of one of the Patentées, and then the second Patent takes effect, and so the Plaintiffs have a good Title; for there shall be no Survivorship of an Office of Trust, no not if the Office had been granted to two for their Lives, if it be not said, to the Survivor of them, 11 Co. 34. Auditor Curls Case; and of that Opinion was the Court clearly. But Pollexfen for the Defendant said, that he agreed that Point, but that the Plaintiffs Patent was not good; for though there be a general Non obstante of all the Statutes in it, yet there ought to have been one in particular against the Statute of 14 R. 2. cap. 10. which Enacts, That no Customer or comptroller shall have any Office in the Customs for his Life, 31 H. 6. c. 5. but only during the pleasure of the King; which being made for the public Good, the King cannot by any Non obstante dispense with it. In many Cases the dispensation of the King by a Non obstante is good, as where a Statute prescribes the form of the King's Grant, where it doth not directly prohibit a thing, but only under pain of a Forfeiture; but if it be direct and pro bono publico, there a Non obstante is not good, and so is this Statute. He cannot dispense with the Statute of 31 Eliz. against Simony; for the Party being disabled by an * Hob. 57 1 Inst. 120. Act of Parliament cannot be enabled by a Non obstante; he cannot dispense with the Statute of Leases of * 5 Co. 15. Ecclesiastical Persons, nor with the jurisdiction of the * 13 R. 2. c. 3. 15 R. 2. c. 5. 2 H. 4 11. 4 Inst. 153. Admiralty encroaching upon the Common Law; for the foundation of a Non obstante is in the King's Prerogative, and is current in his Grants; but in those Statutes the Subject hath an interest. The Laws concerning Non obstantes are none of the * Davis Rep 69, 70, 71. Vaugh. 332. Thomas versus Sorrel. Hob. 146. Colt and Glover. Long 5 E. 4. 33, 34. ancient Laws of this Land, but brought in by the Pope. The Book of 2 H. 7. f. 6. b. and 7. did first give rise to this exorbitant power; yet it is not the Opinion of all, or indeed of any of the judges then, as 'tis affirmed to be, for Broke Pat. 45, 109. who abridged that Case, took no notice of any Opinion of the judges; yet some grounding themselves on that Book, affirm that the King may dispense with the Statute of the 23 H. 6. cap. 8. which Enacts, That no Man shall be Sheriff for above one Year; and that therefore a Patent granted by Ed. the 4th, to the Earl of Northumberland, to be Sheriff of the same County for Life, was held good, which is a plain mistake, for there never was any such Resolution, neither did the judges make any determination upon that Statute, it was only a discourse obiter by Radcliff (who was then one of the Barons of the Exchequer,) concerning the Statutes of the 14 E. 3. cap. 7. and of the 42 E. 3. cap. 9 which are only prohibitory, That no Sheriff shall continue in his Office above one year, but have not any such Clause in them as the Statute of 23 H. 6. hath, which saith, That all Patents made to any to be Sheriff for above a year shall be void, any Clause or word of Non obstante in any wise put in such Patent notwithstanding; this was the mistake of Baron Radcliff, Postea. who upon a sudden Discourse thought there might be such Clauses in those former Statutes of Ed. 3. and that notwithstanding which, there being a Non obstante in that Patent to those Statutes he held that to be a good dispensation of them; but 'tis plain there are no such Clauses in those Statutes, and therefore a Non obstante to them is good, and which was the true reason why that Patent in H. the 7th's time was held good. 2. Another reason might be, because the Office of Sheriff was grantable for Life, and so not within the reach of the Prohibition by those Statutes. 3. But it if was, yet the Proviso in the Aa of Resumption, of 1 H. 7. protected that Patent, by which the King resumed all Grants made by E. 4. but provides for the Earl's Grant. But admitting the Statute of R. 2. and of H. 6. may be dispensed withal in this Case, Dyer 352. a. 2 Roll. Abr. 193. Cro. Eliz. 513. yet it should be more particular than in this Patent to the Plaintiff; for Non obstante aliquo Statuto generally will not serve. 2. Point. A general indebitatus assumpsit will not lie here for want of * 2 H. 4. 12. Bro Account 24, 65, 89. privity, and because there is no contract, 'tis only a tort, a disseisin, and the Plaintiff might have brought an Assize for this Office, which lies at the Common Law; and so it hath been adjudged in Jehu Webb's Case, 1 Inst. 212. 8 Co. 4. Which is also given by the Statute of Westm. 2. cap. 25. for a profit apprender in alieno solo. The Plaintiff might have brought an Action on the Case against the Defendant, for disturbing of him in his Office, and that had been good, because it had been grounded on the wrong. In this Case the Defendant takes the Profits against the will of the Plaintiff, and so there is no Contract; but if he had received them by the consent of the Plaintiff, 6 H. 6.9. 1 Roll. Abr. 597 pl. 5. yet this Action would not lie for want of privity. 'Tis true, in the Case of the King where his Rents are wrongfully received, the party may be charged to give an account as Bailiff; so also may the Executors of his Accountant, because the Law createth a privity; but 'tis otherwise in the Case of a common person, 10 Co. 114. b. 11 Co. 90. b. Because in all Actions of Debt, there must be a Contract, or quasi ex contractu; and therefore where judgement was had and thereupon an Elegit, and the Sheriff returned that he had apprised the Goods, and extended such Lands, which he delivered to the Plaintiff, ubi revera he did not, per quod actio accrevit, which was an Action of Debt; but it was adjudged that it would not lie, because the Sheriff had not returned that he meddled with the Goods, or with the value of them, and therefore for want of certainty how much to charge him with this Action would not lie, but an Action on the Case for a false Return; but if he had returned the Goods sold for so much Money certain, Godb. 276. 2 Sand. 344. 2 Cro. 566. which he had delivered, than an Action of Debt would lie; for though 'tis not a Contract, 'tis quasi ex contractu, Hob. 206. 3. Point. The jury find that the Defendant received the Profits for seven years, and that the Plaintiff had his Patent but two years, and do not show what was received by the Defendant within those two years, and then the Court cannot apply it. But on the other side it was said by Sawyer, Ex parte Quer. That this Non obstante was good; for where an Act of Parliament comes to restrain the King's power and prerogative, it was always held so to be and he relied upon the judgement of 2 H. 7. f. 6. that the King might dispense with the Statute of 23 H. 6. Pl. Com. 502. b. Dyer. 303. which he affirmed to be the constant Usage ever since, and that therefore the Law is so taken to be at this day. As to the second Point both he and the Solicitor General Winnington said, That an indebitatus assumpsit would lie here, for where one receives my Rent, I may charge him as Bailiff or Receiver; or if any one receive my Money without my order, though 'tis a tort, yet an indebitatus will lie, because by the Receipt of the Money the Law creates a promise, and the Action is not grounded on the tort but on the receipt of the Profits in this Case. As to the Objection about the finding, they held that to be nugatory and idle; for it cannot be intended that the Damages given were for the time the Defendant received the Profits, before the Plaintiff had his Patent, neither is there any thing found in the Verdict to that purpose. In Michaelmas-Term following, Judgement. the Court gave judgement for the Plaintiffs. 1. They held that the King might dispense with this Statute, for the Subject had no interest, nor was in any wise concerned in the Prohibition; it was made only for the ease of the King; Hob. 146. and by the like reason he might dispense with the Statute of 4 H. 4. 24. That a Man shall hold the Office of Dyer 203. Aulnager, without a Bill from the Treasurer; and with the Statute of 31 H. 6. 5. That no Customer or controller shall have any Estate certain in his Office; because these and such like Statutes were made for the ease of the Sovereign, and not to abridge his Prerogative, and that the general Clause of Non obstante aliquo alio Statuto was sufficient. 2. 4 H. 7. 6. b. Moor 458 An Indebitatus Assumpsit will lie for Rent received by one who pretends a Title, for in such case an Account will lie; wherever the Plaintiff may have an Account, an Indebitatus will lie. As to the finding 'tis well enough, for the jury assess Damages occasione praemissorum in narratione mentionat, which must be for the time the Plaintiff had the Office, and that a Patent would make a Man an Officer before admittance. Steward Executor of Steward, versus Allen. Demand must be made where an Interest is to be determined. DEBT for a Rent reserved upon a Lease for years, in which there was a Proviso, That if the Rent be behind and unpaid by the space of a Month next after any or either of the Days of payment, than the Lease to be void. The Plea was, That the Rent was behind a Month after a day on which it was reserved to be paid, and so the Lease is void; to which Plea the Plaintiff demurred, because the Defendant did not say that the Plaintiff demanded the Rent; for though the Rent be due without demand, yet the Interest shall not be determined without it, which must be expressly laid in the Pleading; and of that Opinion was the Court, except justice Atkyns, who doubted. Searl versus Long. Quare Impedit, real mainpernors must be returned upon the Summons, Pone and Grand Cape. 2 Inst. 124. Mod. Rep. 248. IVdgment final was given in a Quare Impedit, according to the Statute of Marlebridge, cap. 12. Which Sergeant Pemberton moved to set aside. He said that at the Common Law the Process in a Quare Impedit was Summons, Pone, and Distress infinite, which being found mischievous in respect of a Lapse, it was therefore provided by this Statute, that if the disturbers do not appear upon the Summons, than they shall be Attached to appear at another day, etc. Now here upon the Attachment the Sheriff hath returned Attachiatus fuit by John Do and Richard Roe, who are feigned persons, and not mainpernors; for the Defendant hath made Oath, That he did not know any such persons, neither was he ever Attached, so that 'tis not only a matter of Form, for he ought to have that notice which the Law requires, it being so penal upon him. 'Tis probable this Mistake might arise from Mr. Dalton, who in his Book of the Office of Sheriffs, in the Returns of Writs there, hath put down these feigned Attachers for Examples sake, from whence the Sheriff in this Case might infer that they need not be real persons, as in truth they ought, both upon the Summons, Pone, and Distress; and he cited a Case lately adjudged, where the like Return was made upon the Grand Cape, and the judgement set aside; and of this Opinion was the whole Court, and said, Where the Process is so fatal, the Party ought to be duly served, and that the Sheriff ought to have gone to the Church and to have seized the Profits; and if there be nothing, to return a Nihil; and though the judgement was given before the Term, or long since, yet when 'tis Irregular 'tis to be set aside, and so it was now; and being moved again, the Court continued of their former Opinion. The like Case was moved in Michaelmas-Term following, between Fleming and Lee, where the Patron Defendant was thus summoned and never appeared, and the Incumbent did cast an Essoign; and a Case was cited between Vivian and the Bishop of London, Mich. 23 Car. 2. in C. B. where the like judgement was set aside. But on the other side it was objected, that leaving due notice upon the Summons was as much as was required, for the other Writs are only to give the Defendant time to plead, and therefore 'tis not necessary that notice should be given upon every one of the Writs, for if once served 'tis enough, 11 H. 6. 3, 4. 36 H. 6. 23. 8 H. 6. 8. Long 5 to E. 4. 26. 29 E. 3. 42, 43. Doctor and Stud. 125, 126. 21 H. 6. 56. But the Court were of Opinion that the Defendant having not appeared, nor cast an Essoign, and judgement final being given, Curia. it was reason that all the Process should be served really, of which there had been no occasion, if he had either appeared or essoined, and therefore the Process not being duly served judgement was set aside, Rast. Ent. 217. And they held that the Essoign of the other Defendant was no wise binding to the Patron Defendant, because they may sever in Pleading, and so that judgement was likewise set aside. DE Term. Sancti Mich. Anno 29 Car. II. in Communi Banco. Sir John Otway versus Holdips Executor, etc. Bond to pay 40 l. when an Account shall be stated, 'tis a Covenant and not a Solvendum. DEBT upon Bond brought by the Plaintiff against the Defendant as Executor, wherein the Testator did acknowledge himself to be indebted to the Plaintiff in 40 l. which he thereby did covenant to pay when such a Bill of Costs should be stated by two Attorneys indifferently to be chosen between them; and sets forth in his Declaration that he named one Attorney, and desired the now Defendant to name another, which he refused, and so entitles himself to this Action. The Defendant pleads Non detinet, to which the Plaintiff demurred. But the Plea was not offered to be maintained because the Executor cannot plead Non detinet, but where the Testator himself might plead Nil debet, which in this Case he could not do. But it was insisted, that the Declaration is not good, because the Money was to be paid upon an account stated, which not being done, by the Plaintiffs own showing 'tis not yet due; and this aught to be taken as penned, viz. Solvendum and not an express Covenant. But on the contrary it was held not to be a Solvendum, but a Covenant to pay the Money, the Debt and the Duty being in the first place ascertained; but if it be a Solvendum and repugnant to the Obligatory Clause 'tis void, 21 Ed. 4.36. As the Defendant would have it expounded, it would be in his power totally to defeat the Bond either way; for if he would never choose an Attorney there could be never any thing due. The whole Court were of Opinion that it was not a Solvendum, but a Covenant, which did not take away the Duty ascertained by the Obligation; and if it should not be a Covenant, but an entire Bond, than it would be in the Power of the Obligor whether ever it shall be payable; but be it either the one or the other, the Plaintiff having named an Attorney, aught to recover; and judgement was accordingly given for him. Dunning versus Lascomb. DEBT on a Bond, the Condition was to pay Money when a Ship should go from A. to C. and from thence to Bristol, and should arrive there or at any other Port of discharge in England; the Ship going from A. to C. took in Provisions at Bristol, but not to be discharged there, but proceeded in her Voyage to Cales and was cast away: And by the Opinion of the Court the Money was not payable; but if he had never intended to perform the Voyage it might have been otherwise, 1 Roll. Abr. 142. 39 H. 6.10. judgement for the Defendant nisi. Atkins versus bail. AN Information was exhibited against the Defendant, Outlary pleaded to an Information, good. being a justice of the Peace, for refusing to grant his Warrant to suppress a Conventicle. The Defendant pleads an Outlary in disability; and the Plaintiff demurred. 1. 3 Inst. 194. This Plea is not good because the King is interested qui tam, etc. and therefore where the Informer dies the Attorney General may proceed. 2. The Statute gives power to any person to inform, etc. by which general Words the Disability of this person is removed. But the Court held that there was no colour in either of these Objections. 3. 'Tis not pleaded sub pede sigilli, sed non allocatur, for it need not be so pleaded being in the same Court. 4. 'Tis not averred that the Plaintiff was the same person, who was outlawed; but it was answered that the praedictus makes that certain, and that though the King be interessed, yet the Informer only is Plaintiff and entitled to the benefit, and that though he was disabled yet he might sue for the King, Moor 541. Dyer 227. b. Cro. Eliz. 583. but not for himself; and therefore judgement was given that the Plea was good. Harwood & Bincks versus Hilliard, etc. Notice, where 'tis agreed to be in writing, must be so pleaded. BY an Agreement between the Plaintiffs and the Testator of the Defendant a parcel of Lands was to be sold for 400 l. but if it did not arise to so much, than they covenanted with each other to repay proportionable to the Abatement; and the Defendant's Testator covenanted for himself and his Executors to pay his proportion to the Plaintiffs, so as the Plaintiffs gave him notice in writing of the said Sale by the space of ten days, but doth not say, that such notice was to be given to his Executors or Administrators. And now the Plaintiffs averred, that they gave notice accordingly to the Defendant who was Executor, and the breach assigned was, that he hath not paid, etc. The Defendant demands Dyer of the Indenture wherein was a variance between the Covenant (which was for notice to be given to the Testator) and this Declaration (by which notice is averred to be given to the Executor;) and for this reason he demurred. And Sergeant Dolben Recorder of London argued for him, that this was in the Nature of a Condition precedent, and therefore they ought to have given the Testator notice, which according to the Agreement ought also to have been personal, which not being done, but only notice given to his Executor, did make a material and fatal difference between the Covenant and this Declaration, 14 H. 6. 1. 1 H. 6. 9 And that in this Case there was no Covenant by the Testator at all, for all agree to pay their proportions, and the Testator should pay his part, which is not a Covenant. Barrel Sergeant on the other side said, that the Executor doth represent the person of the Testator; and that though this Covenant was to give notice to the Testator, yet if the Declaration had been of a Covenant to give notice to him, his Executors and Administrators, etc. it had been no material variance so as to prejudice the Action of the Plaintiff, because 'tis no more than what the Law implies, Pl. Com. 192. And upon the first opening this Matter this Term the Chief justice and justice Atkins inclined that the notice ought to be personal, and that the variance was material: But afterwards in Hillary Term following mutata opinion, the whole Court agreed it to be otherwise, because the Covenant runs in Interest and Charge, and so the Executor is bound to pay; and therefore 'tis necessary that he should have notice, and that there was no material difference between the Declaration and the Covenant. And lastly, Antea. that the Testator being a Party to the Deed his Agreement to pay amounts to a Covenant, though the formal Words of Covenant, Grant, etc. were wanting. But then Sergeant Dolben perceiving the Opinion of the Court insisted, that the Declaration was naught for another reason, viz. they had not declared, that this notice was given in writing, which is expressly agreed in the Covenant; to which it was answered that the Defendant having pleaded that he gave notice secundum formam & effectum Conditionis, it was well enough. But he said that would not help the want of Substance, Dyer 243. b. and cited a Case where an Action of Debt was brought for the performance of an Award, so as the same was delivered in Writing, etc. The Defendant pleaded Non deliberavit in scriptis, &. The Plaintiff replied and set forth the Award in Writing, but did not directly answer the Plea of delivering it in Writing, only by way of Argument; and upon Demurrer there omnes Justiciarii contra Querentem; and so they were in this Case, that the notice must be pleaded in Writing, and that secundum formam Conditionis was not good; And so judgement was given for the Defendant. Frosdick versus Sterling. THE Plaintiff alone brought an Action on the Case against the Defendant, and sets forth, Baron and Feme where the Action, if it's not discharged, shall survive to her, they must both join. that he and his Wife in her Right were seized of a Message, Bakehouse and Cole-Yard, etc. and that the Defendant had erected two Houses of Office so near the said Bakehouse that the Walls thereof became foundrous, and the Air so unwholesome, that he lost his Custom; and that the Defendant had digged a Pit so near the said Cole-Yard that the Walls thereof were in danger of falling; and that he had built another Wall so near the said Message, that he had stopped an old Light therein: Upon Not-guilty pleaded there was a Verdict for the Plaintiff. And now Sergeant George Strode moved in Arrest of judgement, for that the Wife should have been joined in this Action, for where she may maintain an Action for a tort done in the Life-time of her Husband, if she survive, and where she may also recover Damages, in such Cases she must join; and it hath been adjudged that she ought to join with her Husband for stopping a way upon her Land, Cro. Car. 418. 1 Roll. Abr. 348. pl. 1. 20 H. 6. 1. ● Ed. 4. 15. Cro. El. 461. So also for cutting down Trees on the jointure of the Wife, made to her by a former Husband, by reason whereof the present Husband lost the Loppings, they both joined, for though the wrong was done to his Possession, and he might have Released, yet because there was also a wrong done to the Inheritance, they ought both to join, Cro. Car. 438. 3 Inst. 650. So it hath been adjudged, that the Husband and Wife in Right of the Wife jojned in an Action of Debt upon the Statute of 2 E. 6. cap. 13. for not setting out of Tithes, and held good, and where the Wife cured a wound, 2 Cro. 205, 399. 9 E. 4. 55. both joined in the Action, 11 H. 4. 16. 46. E. 3. 3. The Court held, That where the Action (if not discharged) shall survive to the Wife, they ought both to join, which if they had done here, it would have been hard to have maintained this Action, because entire Damages are given; and for losing the Custom to his Bakehouse, the Husband alone ought to have brought the Action. He may bring an Ejectment of the Lands of his Wife; but judgement was stayed, till moved on the other side. Barker versus Warren. Justification where 'tis not local, a Traverse of the place makes the Plea naught. AN Action was brought against a Carrier, and laid in London, for losing of Goods there which were delivered to him at Beverly in Yorkshire, to redeliver at London. The Defendant pleads, That he was rob of the said Goods at Lincoln, absqe hoc that he lost them in London. And the Plaintiff demurred. 1. For that Robbery is no excuse for a Common Carrier, so that the Plea is not good in substance. 2. This was no local justification, so that the Traverse was ill. But on the other side it was said by Sergeant Hopkins, that the Plea was good, and that the Defendant might Traverse the place: For in Trespass for the taking of Goods in Coventry, the Defendand pleaded that the Plaintiff did deliver the Goods to him at London, to deliver at Dale, by force whereof he took them at London and delivered them at Dale accordingly, absque hoc that he took them at Coventry, and held good, for by his Plea he hath confessed the delivery, and the taking both at one time and place; and he could not have pleaded the delivery at London, and justify the taking at Coventry, because the Possession is confessed by the first delivery at London, and therefore the justification of the taking at Coventry had been inconsistent, 24 H. 6. 5. But it had been otherwise, if the Defendant had justified, because the Plaintiff gave him the Goods at London, by force whereof he took them at London, absque hoc that he took them at Coventry, because by such Gift or Delivery, he might justify the taking any where as well as where the delivery was made. 2. That the Declaration was ill, for the Agreement was to deliver the Goods at London, and the breach was that he left them at London, and so but argumentative, Aston pl. Red. 62. Herns' Pleader 76. Brownl. Plead 139. But the Court were of Opinion that the Declaration was good, and the Plea was naught in substance; but if it had been good, the Traverse notwithstanding had been ill, because the justification was not local, 2 Cro. 45, 372 though justice Scroggs was of a contrary Opinion: And judgement was given for the Plaintiff. Nota, Visne altered, Propter necessiatem. The Plaintiff had leave given by the Court to alter the Visne from London to Middlesex, because all the Sittings in London were on a Saturday, and his Witness was a Jew, and would not appear that day. Mendyke versus Stint. PRohibition was prayed to the Sheriff's Court of London: Prohibition to the Sheriff's Court after Verdict and Judgement, comes too late. The Suggestion was, That the Plaintiff was sued in that Court in an Action on the Case, and sets forth the Proceed at large, that there was a Verdict against him there, and averred that the Contract upon which he was sued there revera was made in Middlesex, and so the cause of Action did not arise within their jurisdiction; and upon Demurrer to the Prohibition Serjeant Pemberton argued, 2 Inst. 229, 243, 601. West. 1. c. 35. F. N. B. 45. b. Hob. 106. 1. That a Prohibition doth lie to any Court, as well Temporal as Spiritual (where such Courts exceed their Bounds) for both those jurisdictions are united to the Imperial Crown; it may be granted to the Duchy Court, if they hold Plea of Lands not parcel of the Duchy. 2. Though the jury have here found that the Defendant assumpsit modo & forma, yet such finding as to time and place is not material; nor is it any Estoppel in a new Action laid in another County, to aver that it was for the same thing: 'Tis true, both time and place may be made material by pleading, and so it had been in this Case, if the jury had found the place precisely, for it would have been an Estoppel. The Verdict therefore is nothing, and all they have done is coram non Judice. The Case of * Antea, Squib and Holt. Squib and Hole he cited as an Authority in point, where it was adjudged no Escape in the Officer, to let a Man at Liberty, who was in Execution upon a Bond, sued in an Inferior Court, the Bond not being made within the jurisdiction thereof. Ex parte Def. But Maynard, Dolben, Goodfellow and Sympson Sergeants, contra. They agreed, that where it appears by the Plaintiffs Libel that the Court had no jurisdiction, there a Prohibition lies at any time; but if what is in the Declaration is laid infra jurisdictionem, there the Party must plead extra jurisdictionem, and if they refuse to plead to the Plea, a Prohibition will lie after Sentence. But here is an Action on the Case brought, of which the Sheriff's Court can hold Plea, and which is laid to be infra jurisdictionem, and not denied by the Plaintiff in his Plea, and therefore now, after Verdict and judgement, he comes too late for a Prohibition; and upon this difference Prohibitions have been usually either granted or denied to the Spiritual Courts. Though the Court hath not cognisance of the Cause, yet the Proceed are not coram non Judice; for if it be alleged to be within the jurisdiction, and the Defendant takes no exception to it, and then Sentence is given against him, he hath there. by admitted the jurisdiction. So where a Man sued for a Legacy in the Prerogative Court, where the Will was proved, Styles 45. by the Opinion of Rolls C. J. 2 Roll. Abr. 318. and Sentence given, and an Appeal to the Delegates, and Sentence affirmed, and then a Prohibition granted (but without notice) upon the Statute of 23 H. 8. cap. 9 for that the Parties lived in another Diocese; but the Plaintiff having allowed the jurisdiction in all the former proceed, though the Prohibition was granted, the Court would not compel the Party to appear and plead, but granted a Consultation, Cro. Car. 97. Smith versus the Executors of Pondrel. In Hillary-Term 1675. in B.R. between Spring and Vernon, and in Michaelmas-Term in 22 Car. 2. B. R. Buxton's Case, and in Hillary Term the 22 & 23 Car. 2. in the same Court, between Cox and St. Albon Prohibitions were denied after the jurisdiction adadmitted by Pleading. Mod. Rep. 81. The Chief justice, Wyndham and Atkyns, upon the first Argument inclined that a Prohibition ought to be granted, because the admittance of the Party cannot give a jurisdiction where originally there was none; but afterwards they were all of Opinion, That the Prohibition should not go, but said, that the Plaintiff in the Inferior Court ought to have been Nonsuited, if it appeared upon the Evidence that the Cause of Action did arise extra jurisdictionem. In this Case these things were agreed by the Court. 1. Sid. 151. That if any matter appears in the Declaration which showeth that the Cause of Action did not arise infra jurisdictionem, there a Prohibition may be granted at any time. 2. If the subject matter in the Declaration be not proper for the judgement and determination of such Court, there also a Prohibition may be granted at any time. 3. If the Defendant, who intended to plead to the jurisdiction, is prevented by any Artifice, as by giving a short day, or by the Attorney's refusing to plead it, etc. or if his Plea be not accepted or is overruled; in all these Cases a Prohibition likewise will lie at any time. And the Chief justice and Wyndham justices were of Opinion that after the Defendant had admitted the jurisdiction by pleading to the Action, especially if Verdict and judgement pass, the Court will not examine whether the Cause of Action did arise out of the jurisdiction or not. But Atkyns and Scroggs justices said nothing to this last point, but that many times an advantage given by the Law was lost by coming too late, and instanced that a Visne may be changed in time, but not if the Party come too late; so if the time of the promise be laid above six years from the time of the Action brought, if the Statute of Limitations be not pleaded, the Defendant cannot take afterwards advantage of it. Whereupon a Prohibition was denied, and judgement was given for the Defendant. Birch versus Wilson. Plea, tho' it amount to a general Issue, if it doth disclose matter of Law besides, it shall not be demurred unto. IN an Action on the Case, the Plaintiff declared that he was seized of a Mesuage and several Lands in the Parish of Dale, and that he and all those whose Estate he hath, have used to have right of Common, for all Commonable Cattle, Levant and Couchant upon the Premises, in a certain Meadow there, called Darpmore Meadow, and in a certain place called Cannock Wood That the Defendant praemissorum non ignarus, had enclosed the said places in which the Plaintiff had right of Common, and likewise put in his Cattle, as Horses, Cows, Hogs, Geese, etc. so that he could not in tam amplo & beneficiali modo enjoy the same. The Defendant as to the Enclosure and putting in of his Hogs and Geese pleaded Not Guilty: And as to the residue, That the Lord Paget was seized of a Mesuage, 300 Acres of Land, 40 Acres of Meadow, and 100 Acres of Pasture, and likewise of Darpmore Meadow and Cannock Wood; and being so seized did by Deed of Bargain and Sale enroled, in consideration of 2000 l. convey the said Mesuage, 300 Acres of Land, 40 Acres of Meadow, and 100 Acres of Pasture, to the Defendant and his Heirs, and by the same Deed, did Grant unto him all Ways, Commons, and Emoluments whatsoever, to the said Mesuage and Premises belonging, or therewithal used, occupied or enjoyed, or taken as part, parcel or member thereof, virtute cujus the Defendant became seized of the Premises; and that the same were leased and demised for years by the said Lord Paget, and all those whose Estate he had a tempore cujus contrarii memoria hominum non existit; and that the Tenants or Occupiers thereof a tempore cujus, etc. used to have Common in Darpmore Meadow, and Cannock Wood, for all commonable Cattle Levant and Couchant upon the Premises, and used to put in their Cattle into the said places, in which, etc. virtute cujus the Defendant having Right, did put in his said Cattle into the said Places, to take Common there, and averred, That there was Common sufficient both for the Plaintiff and himself. To this Plea the Plaintiff Demurred. This Case was argued by Sergeant Pemberton for the Plaintiff, and by Sergeant Weston for the Defendant; Ex parte Quer. and for the Plaintiff it was said, That it was no good Plea, but rather a design to introduce a new way of Common. The Reasons offered why the Plea was not good, were 1. Cro. Car. 419. That the Defendant could not prescribe because of the Unity of Possession, for the Lord Paget had the Premises in and to which, etc. and therefore he hath prescribed by a collateral matter, Viz. by alleging that the Land was usually let to Tenants for years, but doth not say whether they were Tenants by Copy of Court Roll or not, neither doth he make out any Title in them. In some Cases where a Man is not privy to the Title, he may say generally that the Owners and Occupiers used to do such a thing, etc. and this way of Pleading may be good; but here the Defendant claiming under them, aught to set forth their Title, or else he can have no Right to the Common. 2. By this Plea he intended that the Lord Paget had made a New Grant of this Common; for he sets forth, That he granted the Premises, and all Commons used with the same, and so would entitle himself to a Right of Common in those two places, as if Common had been expressly granted to him there, which if it should, 'tis but argumentative, and no direct affirmance of a Grant, upon which the Plaintiff might have replied non concessit, for no Issue can be joined upon it. 3. He ought to have set forth, That the Tenants lawfully enjoyed the Common there; but he lays only an usage to have Common, which may be tortuous. 4. He doth not say, That there is sufficient Common for all the Commoners, but only for the Plaintiff and himself: 'Tis true, the Owner of the Soil may feed with his Tenant, who hath a Right of Common, but he cannot derogate from the first, by straightening the Common by a second Grant, and so leave not sufficint for the Tenant. 5. This Plea amounts to the General Issue, Cro. Car. 157. and the Plaintiff hath specially assigned that for a Cause of Demurrer; for he saith, That the Defendant, without any Title, put in his Cattle, by which the Plaintiff had not sufficient Common; and the Defendant pleads he put in his Cattle rightfully, and the Plaintiff had Common enough, which if it signify any thing, must amount to Not Guilty. Ex parte Def. But on the other side, the last Objection was endeavoured to be answered first, because if that hold, yet if the Plea be never so good in Substance, the Plaintiff would have judgement. It was agreed that this Plea doth amount to a General Issue, and no more, but that every Plea that doth so, is not therefore bad; for if it otherwise contain reasonable matter of Law, which is put upon the Court for their judgement, rather than referred to the jury, there is is no cause of Demurrer, for it is the same thing to have the doubt or question in Law before the judges in Pleading, as to have it before them upon a Special Verdict. In 2 R. 2. 18. A Retainer was pleaded specially by an Administrator, which is no more than Plene Administravit, yet no Demurrer; but the Book saith that the Court ought to be moved. 2. The Plea is good as to the matter of it; for the Defendant claims the same Common by his Grant which had been used time immemorial, and alleges it to be of all Common used with the Premises, and this was a Common so used. In Trespass the Defendant justified that Godfrey was seized in Fee of a House, and of 20 Acres of Land, and that he and all those, etc. had Common in the place where, etc. to the said Message belonging; and that he made a Feoffment to Bradshaw of the same, who made a Lease thereof to the Defendant, with all Profits and Commodities thereunto belonging, vel occupat vel usitat cum praedicto Mesuagio: It was adjudged that though the Common was gone and extinct in the Hands of the Feoffor by the unity of the Possession, yet those Words were a good Grant of a New Common for the time granted in the Lease, and that it was quasi a Common in the Hands of Godfrey the Feoffor, Cro. Eliz. 570. Godfrey versus Eyre. And though it hath been objected, That this Plea is not formally pleaded, because it ought to have been direct in alleging a Grant; whereas it was only argumentative, and brought in by a side Wind, he said, That as bad as it was, 'twas drawn by that Sergeant who argued against him, and who did very well know that the Averment of sufficiency of Common was needless. Curia. The Court were all of Opinion, That though the Plea did amount to the general Issue, yet for that reason alone the Plaintiff had no cause of Demurrer; for the Defendant may well disclose the matter of Law in Pleading, which is a much cheaper way than to have a Special Verdict, and that this is on the same reason of giving of colour; but if the matter by which the Defendant justifies, be all matter of Fact and proper for the Trial of a jury, than the Dfendant ought to plead the General Issue. And as to the Matter of the Plea, the Chief justice and Wyndham justice held it to be good; for the Common which was pleaded was a Common by Grant and not argumentatively pleaded; for if the Defendant had pleaded an express Grant of Common in those two places, and the Plaintiff had demanded Oyer of the Deed, it would have appeared that there was no such Deed, and this had been a good cause of Demurrer. If this Plea should not be good it would be very mischievous to the Defendant; for there being a perpetual Unity, as to the Freehold there can be no Prescription to the Common; but there being a constant enjoyment thereof by the Tenants, and so a perpetual Usage and a Grant made referring to that Usage, 'tis well enough: And since, whilst the Lands were in possession of the Lord, the Commoners could not complain of a Surcharge; why should they, if he grant the Premises, the Granteé being in loco, etc. In the Case of the King a Grant of tot & talia Libertates & Privilegia quot & qualia the Abbot lately had, 9 Co. 23. Abbot de Strata Marcelia. was held good by such general Words: Here the Lord Paget granted to the Defendant that which the Lessées had before, viz. that Common which the Tenants had time out of mind; and it cannot be conceived, but that the Tenants had a Right; for as a Tort cannot be presumed to be from time immemorial, so neither shall it be intended that the Lord gave only a Licence, and permitted his Tenants to enjoy this Common. But justice Atkins was of Opinion that the Plea was not good; he said, he knew not by what Name to call this Common; for it was no more than a Permission from the Lord, that the Tenants might put their Cattle into his Freehold, or a Connivance at them for so doing; and if it be taken as a new Grant, than nothing can pass, but the Surplus; for the Lord cannot derogate from his former Grant, and the new Grantee shall not put in an equal proportion with him who hath the Prescription; for if he may, than such Prescription would be quite destroyed by such puisne Grant; for as the Lord might grant to one, so he might to twenty, and then there would not be sufficient Common left for him, who prescribes to the Right: So that he conceived that the Defendant had no Right of Common, or if he had any, it would not be till after the Right of the Plaintiff was served; and he said that Usage shall not intent a Right, but it may be an Evidence of it upon a Trial. But if there had been an Usage 'tis now lost by the Unity of the Possession, and shall not be revived by the new Grant, like the Case of Massam and Hunter; Yelv. 189. there was a Copyholder of a Message and two Acres in Feé, which the Lord afterwards granted and confirmed to him in Fee cum pertinentiis, it was adjudged that though the Tenant by Usage had a Right to have Common in the Lord's Waste, yet by this new Grant and Confirmation that Right was gone (the Copyhold being thereby extinguished;) for the Common being by Usage and now lost, these Words cum pertinentiis in the new Grant will not revive it. But notwithstanding judgement by the Opinion, of the other three justices, was given for the Defendant. Week's Case. A Prohibition was prayed to the Ecclesiastical Court at Bristol; the Suggestion was that he was excommunicated for refusing to answer upon Oath to a Matter by which he might accuse himself, viz. to be a Witness against another; that he himself was present such a day, and saw the other at a Conventicle, which if he confessed, they would have recorded his Confession of being present at a Meeting, and so have proceeded against him. The Court granted a Prohibition, but ordered him to appear in the Ecclesiastical Court to be examined as to the other persons being there. Anonymus. A Man wins 100 l. of another at play; Gaming not within the Statute, where the Security is given to a third person. the Winner owed Sharp 100 l. who demanded his Debt; the Winner brought him to the other, of whom he won the Money at Play, who aknowledged the Debt, and gave Sharp a Bond for the payment of the 100 l. who not being privy to the Matter, or knowing that it was won at Play, accepted the said Bond, and for default of payment puts it in Suit; the Obligor pleads the Statute of Gaming. The Plaintiff in his Replication discloseth the Matter aforesaid and saith, that he had a just Debt due and owing to him form the Winner, and that he was not privy to the moneys being won at Play, etc. and that he accepted of the said Bond as a Security for his Debt; and the Defendant demurred. And the Court were all of Opinion, Hill and Pheasant, Antea. that this Case was not within the Statute; the Plaintiff not knowing of the Play, and though it be pleaded that the Bond was taken pro Securitate, and not for satisfaction of a just Debt, it was held well enough, like the Case of Warns and Ellis, Yelv. 47. Warns owed Alder 100 l. upon an usurious Contract, and Alder owed the Plaintiff Ellis 100 l. for which they were both bound; and in an Action of Debt brought upon this Bond Warns pleads the Statute of Usury between him and Alder; and Ellis replied as the Plaintiff here; and upon a Demurrer it was adjudged for the Plaintiff by three judges, because the Plaintiff had a real Debt owing him and was not privy to the Usury: And upon this Case the Court relied, and said, the Reason of it governed this Case at the Bar; whereupon judgement was given for the Plaintiff. Tissard versus Warcup. INdebitatus Assumpsit for 750 l. laid out by the Plaintiff for the use of the Defendant: Upon Non assumpsit pleaded, there was a Trial at the Bar; and the Evidence was, that the Defendant and another, now deceased, farmed the Excise; that the Money was laid out by the Plaintiff on the behalf of the Defendant and his Partner; and that the Defendant promised to repay the Money out of the first Profits he received. Curia. And by the Opinion of the whole Court this Action would not lie. 1. Two Partners being concerned the Action cannot be brought against one alone; he ought in this Case to have set out the death of the other: But if judgement be had against one, the Goods in Partnership may be taken in Execution. 1 Cro. 239. Hob. 180. Rol. Rep. 233. 2. The Promise here was not to pay the Money absolutely, but sub modo; so that the Evidence did not maintain the Action; and the Plaintiff was Nonsuited. Nichols versus Ramsel. Release of all Demands usque 26 Apr. a Bond dated that day is not released. TRespass done 24 Martii 26 Car. 2. usque 26 Augusti 28 Car. 2. diversis diebus & vicibus, etc. The Defendant pleaded that on the 24th day of April in the 26th year of King Charles the Second he paid the Plaintiff 6 d. which he received in full satisfaction of all Trespasses usque ad the said 24th day of April, absque hoc that he was guilty ad aliquod aliud tempus praeter praedictum 24 Aprilis anno 26 Car. 2. aut aliquo tempore postea, but leaveth out the 24th day of April; and for that Reason the Plaintiff demurred, because the Defendant had not answered that day, for the Word usque excludes it. So where Debt was brought upon a Bond dated 9 Julii, the Defendant pleaded a Release of all Actions, Owen' 50. 2 Rol. Abr. 521. etc. the same day usque diem dati ejusdem scripti, the Bond was not discharged, because the Release excludes the 9th day, on which it was made. But Sergeant Weston contra. Though generally in pleading the Word usque is exclusive; yet in the Case of Contracts, because of the intent of the Parties, 'tis inclusive; and therefore in one Nichol's Case, 20 Car. 2. in B. R. Rot. 21. (the Term was not named) a Lease was made Habendum from Lady-day usque Festum Sancti Michaelis, 1665. paying the Rent reserved at Michaelmas during the Term; the Rent shall be paid on Michaelmas-day, 1665. and so the day shall not be excluded. So where a Man prescribes to put Cattle from and immediately after Lady-day, where they are to stay till Michaelmas-day; the putting them in on Lady-day and driving them away on Michaelmas-day is not justifiable in strictness, yet it hath been allowed good. So in a Devise the Question was, whether the Testator was of Age or not; and the Evidence was, that he was born the first day of January in the Afternoon of that day, and died in the Morning on the last day of December: And it was held by all the judges that he was of full Age, for there shall be no fraction of a day. North Chief justice said, that prima fancy this is to be intended good; for a day is but Punctum temporis, and so of no great consideration. But the other three justices were of Opinion, that the Word Usque was exclusive; and that the Plaintiff should not be put to show that there was a Trespass done on the 24th of April; and said that in a Release of all Demands till the 26th of April, a Bond dated that day is not released; wherefore judgement was given for the Plaintiff. Trevil versus Ingram. COvenant to pay an Herriot post mortem J. S. or 40 s. at the election of the Plaintiff; Release of all Demands doth not bar a future Duty. Mod. Rep. 216. and sets forth the death of J. S. and that afterwards he chose to have the 40 s. for which he brought this Action, and assigns the Breach for Non payment. The Defendant pleaded that the Plaintiff released to him all Actions and Demands, etc. But this Release was made in the Life time of J. S. and there was an Exception in it of Herriots. The Plaintiff demurred, and Sergeant George Strode argued that this Action was not discharged by that Release, and cited Hoes Case, 5 Co 70. where it was held, that a Duty incertain at first, which upon a Condition precedent was to be made certain afterwards, was but a possibility which could not be released; that the Duty in this Case was incertain, because the Plaintiff could not make his Election till after the death of J. S. A Covenant to repair, 2 Cro. 170. Roll. Abr. 407. But a Release of all Covenants in such an Indenture had been a Bar, 5 Co. 71. a. and a Release pleaded to it within three days after the date of the Indenture: And upon a Demurrer it was held, that it being a future Covenant, and not in demand at the time of the Release, although it was of all Demands, yet that Covenant was not thereby released. So here neither the Herriot nor the 40 s. were either of them in demand at the time of the Release given, and it plainly appears by the Exception in the Release that it was the intention of the Parties not to release the Herriots; 2 Cro. 623. and of that Opinion was the whole Court; whereupon judgement was given for the Plaintiff. North Chief justice: It is the Opinion of * Sect. 508, 510. 2 Roll. Abr. 408. Sid. 141. Littleton, That a Release of all Demands doth Release a Rent: And of that Opinion was justice Twisden in the Argument of Hen and Hanson 's Case, though it was resolved there, that a Release of all Demands did not discharge a Rent reserved upon a Lease for years, because such Rent is executory, and incident to the Reversion, 2 Cro. 486. and grows every year out of the Land; but when it is severed from the Reversion, as by assigning over the whole Term, than it becomes a Sum in gross, and is due upon the Contract, and in that Case a Release of all Demands discharges a Rent afterwards due. DE Term. Sancti Hill. Annis 29 & 30 Car. II. in Communi Banco. Shambrok versus Fettiplace. PRohibition. Prescription to have an Isle in a Church because of repairing, no good cause for a Prohibition. Hob. 69. The Question was whether a Prescription be good to an Isle in a Church which he and all those, etc. used to repair, as belonging to a Manor, where he had no Dwelling House but only Land; and Sergeant Geo. Croak argued that it was good, and cited the Case of Boothby and Bayly, where such a Prescription as this was held to be a good ground for a Prohibition, Vide Moor Rep. 878. contra. The Court inclined that it was not good, but ordered the Prohibition to go, and the Defendant to plead, that it might come judicially before them to be argued. Dashwood versus Cooper & alios, in Cammera Scaccarii. ERror of a judgement in Trespass, In a Negative Plea, viz. That three did not such a thing, it must be said nec eorum aliquis. wherein Cooper and others brought an Action of Trespass against Dashwood for entering into a Brewhouse and keeping of possession, and taking away of 50 s. The Defendant pleaded, That the Plaintiffs had committed an Offence against the Statute of 12 Car. 2. cap. 23. by which it is Enacted, That all Offences thereby prohibited (except in London) shall be heard by two or more of the next Justices of Peace, and in case of their neglect or refusal by the space of 14 days after complaint made, than the Sub-Commissioners of the Excise are to determine the same, from whom no Appeal doth lie to the Justices of the Peace at their next Sessions, which Commissioners of Excise, Justices of the Peace and Sub-Commissioners amongst other things are enabled by the said Act, to Issue out Warrants under their Hands, etc. to levy the Forfeitures, and so justified the Entry under a Warrant from the Sub-Commissioners, three justices having refused to hear and determine this Offence. To this Plea the Plaintiffs demurred, and had judgement in the Court of Kings-Bench, and a Writ of Inquiry of Damages was Executed, and 750 l. Damages given; and it was alleged that the Defendant could not move to set aside the judgement in that Term it was given, because the Writ of Inquiry was executed the last day of the Term, and the Court did immediately rise; and that he could not move the next Term, because the judgement was given the Term before the Writ of Error was brought. The Attorney General therefore said that this was a hard Case, and desired a Note of the Exceptions to the Plea, which he would endeavour to maintain, which Mr. Pollexfen gave him, and then he desired time to answer them. The Exception to the Plea upon which the judgement was given was this; Viz. The Act giveth no power to the Sub-Commissioners to hear and determine the Offences, and so to issue out Warrants for the Forfeitures, but where the justices or any two of them refuse: And though it was said by the Defendant that three refused, yet it was not said that two did refuse; for there is a great difference between the allegation of a thing in the Affirmative and in the Negative; for if I affirm that A. B. C. did such a thing, that affirmation goes to all of them, but negatively it will not hold; for if I say A. B. C. did not such a thing, there I must add nec eorum aliquis. So if an Action be brought against several Men, and a Nolle prosequi is entered as to one, and a Writ of Enquiry awarded against the rest, which recites, That the Plaintiff did by Bill implead (naming those only against whom the Inquiry was awarded, and leaves out him who got the Nolle prosequi) this is a variance, for it should have been brought against them all. 'Tis true, where a judgement is recited 'tis enough to mention those only against whom it is had, but the Declaration must be against all; so in a Writ of Error if one is dead he must be named; and so the justices ought all to be named in this Case, viz. that the three next justices did not hear and determine this Offence, nec eorum aliquis. Wells versus Wright. In Communi Banco. DEBT upon Bond conditioned, Bond with an insensible Condition, good. that if the Obligée shall pay 20 l. in manner and form following, that is to say, 5 l. upon four several days therein named; but if default shall be made in any of the Payments, than the said Obligation shall be void, or otherwise to stand in full force and virtue. The Defendant pleads that tali die, etc. non solvit 5 l. etc. and upon this the Plaintiff demurred. Barrel Sergeant. The first part of the Condition is good, which is to pay the Money, and the other is surplusage void and insensible; but if it be not void it may be good by transsposing thus, viz. If he do pay, than the Obligation shall be void; if default shall be made in Payment then it shall be good; and for Authority in the Point the Case of Vernon and Alsop was cited, Sid. 105. 1 Sand. 66. 2 Sand. 79. Hill. 14 Car. 2. Rot. 1786. in B. R. Where the Condition was, that if the Obligée pay 2 s. per Week, until the Sum of 7 l. 10 s. be paid (viz. on every Saturday) and if he fail in Payment at any one day that the Bond shall be void; and upon the like Plea and Demurrer as here, it was adjudged that the Obligation was single, and the Condition repugnant. The Court were all of Opinion, that judgement should be given for the Plaintiff; and the Chief justice said, that he doubted whether the Case of 39 H. 6. 9, 10. was Law. Brittam versus Charnock. Where the the Heir takes by the Will with a Charge, he is a Purchaser, and the Lands shall not be Assets. DEBT upon Bond against the Defendant as Heir: Upon Riens per descent pleaded, the jury found a Special Verdict, in which the Case was: viz. The Father was seized of a Message and three Acres of Land in Fee, and devised the same to his eldest Son, (the Defendant) and his Heirs within four years after his decease, provided the Son pay 20 l. to the Executrix towards the Payment of the Testators Debts, and then he deviseth his other Lands to be sold for payment of Debts, etc. The Father dies, the Son pays the 20 l. and if this Message etc. was Assets in the Hands of the Defendant, was the Question. Cro. Car. 161. Cro. Eliz. 431. 833. Vaugh. 271. That it was not Assets (it was said) because the Heir shall not take by descent, but by Purchase; for the Word Paying is no Condition, if it should, the Heir is to enter for the breach, and that is the Defendant himself; and for that reason it shall be a Limitation. Southcot and Stowel, Antea, 'Tis true, where there is no alteration of the Estate the Heir must take by descent; but in this Case there is an alteration of the Estate from what is directed by the Law, viz. the manner how he shall come by the Estate, for no Fee passeth to him during the four years. But this was denied by Sergeant Pemberton, for he said, if a Devise be of Land to one and his Heirs within four years, it is a present Devise, and if such be made to the Heir 'tis a descent in the mean time, and those Words (within four years) are void; so that the Question will be, whether the Word Paying will make the Heir a Purchaser; and he held it would not: He agreed, that it was usual to make that a Word of Limitation, and not a Condition when the Devise is to the Heir; and therefore in a Devise to the Heir at Law in Fee he shall take by descent, Styles Rep. 148. But if this be neither a Condition or Limitation, 'tis a Charge upon the Land, and such a Charge as the Heir cannot avoid in Equity. North Chief justice and Atkins. Where the Heir takes by a Will with a Charge, as in this Case, he doth not take by Descent, but by Purchase, and therefore this is no Assets. Moor versus Pit. SPecial Verdict in Ejectment; The Case was this, Surrender of a Copyhold to a Disseisor, whether good to extinguish the Right. viz. A Copyholder for Life, the Remainder for Life, he in Remainder for Life surrenders the Copyhold to the Lord pro tempore (who was a Disseisor only of the Manor) ut inde faciat voluntatem suam; the Disseisor grants it to a Stranger for Life, the Disseiseé enters, the Stranger dies, and whether the Disseisor or he in the Remainder for Life, who made the Surrender, had the better Title, was the Question. So that the Point was, Cro. Car. 205. 2 Sid. 151. 1 Roll. Abr. 540. whether this Surrender by a Copyholder in Remainder into the Hands of the Disseisor be good, and shall so extinguish the Right to the Copyhold, that it shall not be revived by the Entry of the Disseisee into the said Manor. It was said that in some Cases a Surrender into the Hands of a Disseisor was good, that is, when the Surrender is made to him to the use of another and his Heirs, and he admits him, there the person admitted claims not under the Lord, but under the Copyholder, who made the Surrender; 1 Inst. 59 b. for nothing passes to the Lord, but only to serve the Limitation of the Use, 1 Rol. Abr. 503. litt. Q. pl. 1. 4 Co. 24. But in this Case the Grantée must claim from the Lord himself, and not from the Copyholder, because he had but an Estate for his own Life, with which he wholly departed when he made the Surrender to the use of the Disseisor himself. In Trinity-Term following this Case was argued by Sergeant Maynard on the other side. There are two sorts of Surrenders of a Copyhold. 1. Proper. 2. Formal and Ceremonious. If a Surrender be to the Lord to the use of another, this is no proper Surrender; for no Estate passeth to the Lord he being only the Instrument to convey it to the Surrendree, and this is but nominal. But here the Surrender was to the use of the Lord himself, which is a proper Surrender, and in such Case 'tis necessary that the Lord have a Reversion, for one Estate is to be turned into the other, and there must be a continuing of Estates. But Dominus pro tempore, who is a Disseisor hath no such Estate: Executor de son tort shall sue, but he cannot retain. If therefore he is not capable to take a Surrender to himself, unless he hath such an Estate, than here is no Disseisin of the Copyhold, 'tis only of the Manor; and then no greater Interest passeth to the Disseisor than to a Stranger, whilst the true Lord had been in possession, for so he is quoad this Copyhold if he was not disseised of it; for if the Copyholder had the possession there could be then no Disseisin; if he was out of possession than he had nothing but a Right, and that cannot be surrendered, for it must be an Estate; as if a Lessee for years keep possession, 'tis the possession of the Lord, and the Law is the same in case of a Copyhold, 2 Co. Bettisworth's Case. Piggot and Lord Salisbury's Case, Ant The true Owner makes a Feoffment in Fee, if Lessee for years continue in possession no Fréehold passeth. If Tenant at Will of parcel of the Manor be in possession that prevents a Disseisin of the Freehold, much more in Case of a Copyhold. Lessee for years, the Remainder to B. for Life, the Remainder to C. in Fee; C. by Deed makes a Feoffment to B. and Livery, etc. 'tis a void Conveyance, because the possession of Lessee for years is the possession of him in the Remainder for Life, and as long as the Lessee for years is in the possession, the Owner of the Inheritance cannot be out, Lit. 324. cap. Attornment. North Chief justice and Wyndham inclined that the Surrender was not good; for it was a material distinction where the Surrender was made to the use of a Stranger, and where it terminates in the Lord; that a Surrender made by a Copyholder for Life could not transfer, but extinguish his Right; for he could not give a greater Estate than he had; that there must be a Reversion in the Lord to make a Surrender to him to be good; and that if a Copyholder keeps in possession there could be no Disseisin. But justice Atkins contra. That this Surrender must have operation to extinguish his Right; for though a Copyholder for Life cannot surrender for longer time than his own Life; yet if a Surrender be made of such a Copyhold to an Use 'tis good, and works by way of Extinguishment of his Right though the Use be void; and if a Copyholder of Inheritance surrender to a Disseisor, ut faciat voluntatem, who regrants to the said Copyholder an Estate in Tail according to the Surrender, this shall bind the Disseisee, 1 Roll. Abridg. 503. pl. 3. Tamen quaere. The Copyholder in this Case might have sold his Estate to the Disseisor, and it had been good; and though the Acts of a Disseisor shall not prejudice the Disseisee, yet he could see no reason why the Copyholder, who had parted with his Estate, should have it again. Taylor versus Biddal. SPecial Verdict in Ejectment: The Case was thus; Devise till he be of Age, then to him in Fee, he died within Age, yet a Fee vested in him presently. Richard Ben was seized in Fee of the Lands in question, and had a Sister named Elizabeth, formerly married to one Smith, by whom she had Issue Augustine Smith, now Lessor of the Plaintiff, and she afterwards married one Robert Wharton, by whom she had Issue a Son called Benjamin, and a Daughter called Mary, the now Defendant. Richard Ben devised these Lands to Elizabeth his Sister and Heir, for so long time, and until her Son Benjamin Wharton should attain his full Age of 21 years; and after he shall have attained his said Age, then to the said Benjamin and his Heirs for ever; and if he die before his Age of 21 years, then to the Heirs of the Body of Robert Wharton and to their Heirs for ever as they should attain their respective Ages of 21 years. Richard the Testator dies, Benjamin died before he came to the Age of 21 years, living Roberr Wharton his Father, afterwards Robert died. And the Question was, Whether the Lessor of the Plaintiff as Heir to Elizabeth, or Mary either as Heir to her Brother Benjamin, or as Heir of the Body of Robert should have this Land? This Case was argued by Sergeant Pemberton this Term, Ex parte Quer. and by Sergeant Maynard in Easter-Term following for the Plaintiff, and they held that Augustine Smith, the Lessor of the Plaintiff, should have this Land, because no Estate vested in Benjamin Wharton, he dying before he had attained his Age of 21 years, and the Testator had declared, that his Sister should have it till that time, and then and not before he was to have it; so that if he never attained that Age (as in this Case he did not) the Land shall descend to the Heir of the Testator; that Elizabeth had only an Estate for years, and so having no Freehold the Contingent Remainder could not be supported; that Mary could not take by way of Executory Devise, because Robert was living when his Son Benjamin died within Age; that therefore 'tis quasi a Condition precedent, Grant's Case, 10 Co. cited in Lampet's Case. 1 Leon. 101. There is a difference between Boraston's Case and this at the Bar; for that was a Devise to Executors till Hugh shall attain his Age of 21 years, and the mean Profits in the mean time to be applied by them for payment of the Testators Debts; and because he might have computed how long it would be before his Debts could be paid; therefore it was adjudged that after the death of Hugh within Age, the Executors should continue in possession till Hugh might have attained his full Age had he lived, and so a present Devise to them. But here the Devise is generally till Benjamin Wharton shall attain his Age of 21 years, so that nothing vested in him until that time, and he dying before, than the Estate shall descend to the general Heir, who is the Plaintiff. 2. Admitting this should be taken as an executory Devise, there must be some person capable to take when the Contingency happens, and there was no such person in this Case; for Robert was alive when Benjamin died, and Mary could not then take as Heir of his Body, for Nemo est haeres viventis; like the Case of 2 Cro. 590. Vaugh. 272. Pell and Brown, viz. Brown had Issue William and Thomas, he devices Land to his youngest Son Thomas and his Heirs, and if he die (living William) then to William and his Heirs; Thomas did die without Issue living William, and it was adjudged that if those Words (Living William) had been left out of the Will, Thomas would have a Fee Tail, which he might have docked by a Common Recovery; but by reason of those Words he had only a limited Fee, because the Words (viz. If he died without Issue) are not indefinite to create a Tail, but are restrained to his dying without Issue (Living William) which is a limited Fee; and his Estate being determined, William then had a Fee; but if he had died before the Contingency happened, viz. in the Life time of Thomas, and then Thomas had died without Issue the Heirs of William would not have an Estate in Fee for the Reason's aforesaid. If therefore nothing vested in Benjamin Wharton, nor in Mary his Sister, than the Land descends to Augustine Smith as Heir at Law to Elizabeth, who was Heir to the Testator, and so the Plaintiff hath a good Title. Ex parte Def. Newdigate Serjeant contra. Here is only an Estate for years in the Sister of the Testator, and an Estate in Fee presently vested in Benjamin Wharton; and he relied upon Boraston's Case, where the Father having Issue, Humphrey and Henry, devised to his Executors till Hugh his Grandson, the Son of Henry should be of Age, and then to him in Fee; it was there adjudged that the Executors had a Term till Hugh might have attained his full Age, and that though he died at the Age of nine years, yet the Remainder did immediately vest in him in possession upon the death of his Grandfather, and that by his dying without Issue the Lands did descend to his Brother. So here the Fee descends to Benjamin Wharton in possession, and he dying without Issue and within Age, the Land shall then descend to his Sister and Heir. The like judgement was given in the Case of Taylor and Wharton about 12 years since; and in Dyer 124. a. A Devise to his Wife till his Son shall be of the Age of 24 years, then to the Son in Fee; and if he die before 24 years without Issue, then to the Wife for Life, the Remainder to A. etc. The Testator died, 2 Leon. 11. pl. 16. Dyer 354. a. it was adjudged that the Son had a Fee simple presently, for an Estate tail he could not have till he was 24 years old; and after the death of his Father there was no particular Estate to support that Estate in the Remainder till he should come to the Age of 24 years, so that he took by descent immediately. So here a Feé vested in Benjamin presently, and he being dead within Age Mary may take as Heir; however when she is of Age she shall take as Heir of the Body of Robert by way of executory Devise arising out of the Estate of the Devisor, Styles 240. Owen 148. which needs no particular Estate to support it, as in case of a Contingent Remainder; for before Mary was of Age Robert her Father was dead, and so she might well take, Trin. 19 Car. 2. in B. R. Snow versus Cutler, Rot. 1704. North Chief justice. Curia. Favourable distinctions have been always admitted to supply the meaning of Men in their last Wills; and therefore a Devise to A. till he be of Age, then to B. and his Heirs, this is an Estate for years in A. with a Remainder in Feé to B And if such a Devise to A. who is also made Executor or for payment of Debts, it shall be for a certain Term of years, viz. for so long as according to computation he might have attained that Age had he lived. Contingent Remainders are at the Common Law and arise upon Conveyances as well as Wills; one may limit an Estate to A. the Remainder to another; and so it may be by Devise, if the intent of the Parties will have it so. But as at the Common Law all Contingent Remainders shall not be good, so in Wills no such latitude is given, as if none could be bad; they are subject to the same Fate in Wills as in Conveyances. In this Case Elizabeth had a Term till Benjamin Wharton be of Age, for she is Executrix; she was likewise Heir at Law to the Devisor, and this Land had gone to her, had it not been for this Will; so that 'tis plain the Testator never intended that a Fee-simple should vest in her, but somewhere else; for he could never intent the Descent of the Inheritance to that person to whom he had devised the Term. It has been argued, that Mary is Heir at Law to Benjamin as well as Heir of the Body of Robert, and so if she can take either way 'tis good; but to make her Heir to Benjamin 'tis necessary that the Estate vest in him before he comes to 21 years; and for that Boraston's Case was much relied on, which was also said not to differ from this at the Bar; that an Estate passes to Benjamin Wharton in praesenti, and that there was no Incapacity for Mary to take by way of Executory Devise, as was urged on the other side, and therefore why should she not take by way of Executory Devise as Heir of the Body of her Father, or at least, as Heir of Benjamin her Brother? An Executory Devise needs no particular Estate to support it, for it shall descend to the Heir till the Contingency happen; 'tis not like a Remainder at the Common Law, which must vest eo instanti that the particular Estate determines; but the Learning of Exeecutory Devises stands upon the Reasons of the old Law, wherein the intent of the Devisor is to be observed: For when it appears by the Will that he intends not the Devisee to take but in futuro, and no disposition being made thereof in the mean time, it shall then descend to the Heir till the Contingency happen; but if the intent be that he shall take in praesenti, and there is no incapacity in him to do it, he shall not take in futuro by an executory Devise. Sid. 153. pl. 2. A Devise to an Infant in ventre sa mere is good, and it shall descend to the Heir in the mean time; for the Testator could not intent he should take presently; he must first be in rerum natura. 3 Co. 20. a. 1 Inst. 378. a. If an Estate be given to A. for Life, the Remainder to the right Heirs of B. this is a contingent Remainder, and shall be governed by the Rules of the Law; for if B. die during the Life of A. 'tis good; but if he survive 'tis void, because no Body can be his right Heir whilst he is living; and there shall be no descent to the Heir of the Donor in the mean time to support this contingent Remainder, that so when B. dies his right Heirs may take. In this Case a Fee did vest in Benjamin presently, and therefore after his death without Issue the Defendant is his Heir, and hath a good Title, if not as Heir at Law, yet she may take by way of Executory Devise as Heir of the Body of her Father, which though it could not be whilst he was living, (because nemo est haeres viventis,) yet after his death she was Heir of his Body, and was then of Age, at which time, and not before, she was to take by the Will. That Elizabeth the general Heir had only an Estate for years till Benjamin should or might be of Age: And so by the Opinion of the whole Court judgement was given for the Defendant. Evered versus Hone. SPecial Verdict in Ejectment; wherein the Case was thus, viz. A Man hath Issue two Sons, Thomas his eldest and Richard his youngest Son. Thomas hath Issue John. Richard hath Issue Mary. The Father devised Lands to his Son Thomas for Life, Constructi-of Words in a Devise. and afterwards to his Grandson John, and the Heirs Males of his Body; and if he die without Issue Male, then to his Grandaughter Mary in Tail, and charged it with some Payments, in which Will there was this Proviso; viz. Provided if my Son Richard should have a Son by his now Wife Margaret, than all his Lands should go to such first Son and his Heirs, he paying as Mary should have done. Afterwards a Son was born, and the Question was, whether the Estate limited to Thomas, the eldest Son was thereby defeated: And the Court were all clear of Opinion, that this Proviso did only extend to the Case of Mary's being entitled, and had no influence upon the first Estate limited to the eldest Son. Anonymus. IN the Exchequer Chamber before the Lord Chancellor, Executor of an Executor de son tort not liable at Law. the Lord Treasurer and two Chief justices, the Case was thus: viz. The Plaintiff had declared against the Defendant as Executor of Edward Nichols, who was Executor of the Debtor. The Defendant pleads that the Debtor died intestate, and Administration of his Goods was granted to a Stranger, absque hoc that Edward Nichols was ever Executor, but doth not say, or ever administered as Executor, for in truth he was Executor de son tort. The Plaintiff replies, that before the Administration granted to the Stranger, Edward Nichols possessed, himself of divers Goods of the said Debtor, and made the Defendant Executor, and died; and the Defendant demurred; and judgement was given for the Plaintiff, but reversed here; for an Executor of an Executor de son tort is not liable at Law, though the Lord Chancellor said he would help the Plaintiff in Equity. But here Administration of the Goods of the Debtor was granted before the death of the Executor de son tort, so his Executorship vanished and nothing shall survive. The Lady Wyndham's Case. IF Flotsam come to land, and is taken by him who hath no Title, the Action shall not be brought at the Common Law, and no Proceed shall be thereon in the Court of Admiralty; for there is no need of Condemnation thereof as there is of Prizes: By the Opinion of the whole Court of Common Pleas. Rose versus Standen. Action where misconceived by the Plaintiff, and Verdict against him no Bar to a new Action. IN Account for Sugar and Indigoe; the Defendant pleaded, that the Plaintiff brought an Indebitatus Assumpsit, a quantum meruit, and an insimul computasset for 100 l. due to him for Wares sold; to which he pleaded Non assumpsit, and that there was a Verdict against him, and then averrs that the Wares mentioned in that Action are the same with those mentioned here in the Action of Account: The Plaintiff demurred, and it was said for him, that he had brought his former Action on the Case too soon; for if no Account be stated the Action on the Case on the Insimul computasset will not lie, and so the former Verdict might be given against him for that Reason. Ex parte Def. But on the contrary, the Defendant shall not be twice troubled for the same thing; and if the Verdict had been for the Plaintiff, that might have been pleaded in Bar to him in a new Action. Curia. 2 Cro. 284. But the Court were of another Opinion, that this Plea was not good, and that if the Plaintiff had recovered it could not have been pleaded in Bar to him; for if he misconceives his Action and a Verdict is against him, and then brings a proper Action; the Defendant cannot plead that he was barred to bring such Action by a former Verdict, Antea. Put and Roster, Postea. Rosal and Lamper, Ante. because where 'tis insufficient it shall not be pleaded in Bar; as in Debt upon Bond the Defendant pleaded another Action upon the same Bond, and the jury found Non est factum; the Entry of the Verdict was that the Defendant should recover damages, & eat inde sine die, but not quod Querens nil capiat per Breve, so no judgement to bar him, 2 Cro. 284. But pending one Action another cannot be brought, for they cannot both be true. If no Account be stated the Action on the Case upon an Insimul computasset would not lie; the Insimul computasset implies an Account; and upon Non assumpsit pleaded, the Defendant might have given payment in Evidence, and for that reason the jury might find for him. 'Tis true, he might have pleaded Plene computavit, which is the general Plea: But it may as well be presumed that the Verdict was against the Plaintiff, because the Action would not lie; and the Matter being in dubio the Court will intent it against the Pleader, he not having averred to the contrary, and so they held the Plea to be ill. DE Termino Paschae Anno 30 Car. II. in Communi Banco. Osborn versus Wright. ACtion on the Case for words, Viz. The Plaintiff declares that she was unmarried, but about to marry one J. S. and that the Defendant, to hinder her Marriage, spoke these Words of her, Viz. She is a Whore, a Common Whore, and N's Whore, per quod maritagium amisit. The jury found the Defendant guilty of speaking the Words, but that she did not lose her Marriage thereby; and it was moved in arrest of judgement that these Words are not actionable, being only Scolding; and of that Opinion was all the Court, and judgement was arrested. Hambleton versus Justice Scroggs & alios, In Camera Scaccarii. Sergeant at Law, whether Privilege to be Sued only in the Common-Pleas. AN Assault and Battery was brought against the Defendants in the Kings-Bench, to which one of them pleaded that he was a Sergeant at Law, and so ought to have his Privilege to be sued by Bill in the Common Pleas, and in no other Court: To this Plea the Plaintiff demurred; and judgement was given in my Lord Chief justice Hales' time by the Opinion of him and the whole Court of Kings-Bench, That a Sergeant at Law might be sued there, and was not suable in the Court of Common-Pleas only. 2. That in this Action the Defendant should not have his Privilege, because it was brought against him and another. And afterwards a Writ of Error was brought upon this judgement, returnable before the Lord Chancellor, and Chief justices of the Kings-Bench and Common-Pleas, and the Errors were argued before the two Chief justices at Serjeants-Inn in Chancery Lane. Mr. Holt for the Plaintiff in the Writ of Error, Ex parte Quer. That a Sergeant at Law is to be sued only in the Court of Common-Pleas, and not elsewhere, because there is an absolute necessity of his Attendance there: He is sworn, and no other person can plead at that Bar, and therefore if he should be sued in any other Court, Vaugh. 155. it would be an Impediment to the Business of that Court, where not only the Officers but their Servants have Privilege. In the 11th of E. 4. 2. There was some discourse about the Privilege of Sergeants at Law, where it was held that he is not to be sued in that Court by Bill, but by Original; but either way he is to have his Privilege. So the Servant of an Officer is not to be sued by Bill, Cro. Car. 84. but he is still to have the Privilege of the Court, and so had Sergeant Hedley's Clerk in the Reign of King Charles the first. The Sergeants receive a kind of Induction to the Bar, and have a place assigned them; and that they ought to have Privilege, the very Words of the Writ are observable, Viz. (mentioning a Sergeant at Law) ex officio incumbit in Curia illa. And though it hath been said and given as an answer to that Case in Cro. Car. That where the Sergeants Clerk was Arrested in an Inferior Court (as in that Case he was) there he shall have Privilege, but not against the other great Courts in Westminster-Hall; this is a difference never yet taken notice of in any Book, nor doth the Writ warrant this distinction. 2. He shall have his Privilege though he be joined with another, because the Action is joint and several; and the one may be found guilty and the other acquitted, and it would be an easy way to oust a Man of his Privilege, if it might be done by joining him with another who hath none, 14 H. 4. 21. But the Person with whom the Sergeant is joined may be sued in the Common-Pleas likewise, so that he shall not hinder him from having Privilege who of right aught to have it, 10 E. 4. 15. Offley contra. As to the first point, Ex parte Def. the Court of Kings-Bench agreed, that a Sergeant at Law shall always have the Privilege of the Court of Common-Pleas against all Inferior Courts, but not against the other Courts in Westminster Hall, for he may be sued in any of them. A Sergeant is not like the Common Officers of the Court, for they are to be attendant there and no where else; but a Sergeant at Law is not confined to that Court alone, he may be assigned of Council in any other Court, and doth usually put his hand to Pleas, both in the Kings-Bench and the Exchequer; but a Philazer or Attorney of that Court cannot practise in his own Name in any other. All Cases of Privilege ought to be taken strictly: And that which was cited concerning the Privilege of a Sergeants Clerk is not like this, because the Arrest was in an Inferior Court. In the 11 E. 4. 2. b. The Chief justice of the Kings-Bench came to the Common-Pleas Bar, and told a Sergeant who he had assigned for a Pauper, That if he would not come into that Court and plead for his Client, he would forejudge him; so that if he could be fetched out of the Common Pleas and carried to the Kings-Bench, he is not confined to that Court alone. In the 5 H. 5. nu. 10. Complaint was made that the Subjects of the King were not well served in his Courts, the Parliament thereupon Ordered, that one Martin and others should take upon them the Dignity of Sergeants at Law, so that it appears that their Business lies in other Courts as well as in that of the Common-Pleas. 2. As to the second Point: Here is a joint Action, for any thing that appears to the contrary, 2 Rol. Abr. 275. pl. 4. and the Plaintiff may proceed against one in the Kings-Bench, and therefore the other shall be ousted of his Privilege (if he have any) in the Common-Pleas, Moor 556. 20 H. 6. 32. North Chief justice said, That he always took it to be an uncontroverted point, That a Sergeant at Law should be sued only in the Court of Common-Pleas by Bill; he is bound by Oath to be there, and when he brings a Writ of Privilege 'tis always out of that Court, and no other: Curia advisare vult. The Attorney General versus Sir John Read, In Scaccario. INformation. A special Verdict was found: Disability by a Statute ought to be removed by the Party to enable himself to execute an Office. The Case was thus: Viz. Sir John Read 1 Apr. 24 Car. 2. was by Sentence in the Spiritual Court divorced a Mensa & Thoro, and for Non payment of Alimony was excommunicated. Afterwards it was Enacted by the Statute of 25 Car. 2. cap. 2. That all and every person or persons who shall have any Office, Civil or Military, shall take the Oaths of Supremacy and Allegiance, and receive the Sacrament (within the time limited by the said Act) or otherwise shall be adjudged ipso facto, incapable and disabled by Law, or if he execute any Office after his neglect or refusal to qualify himself within the time therein appointed (viz. three Months,) than he shall be disabled to sue in any Court, and shall forfeit the Sum of 500 l. Sir John Read was made High Sheriff of Hartfordshire, 12 Novemb. 25 Car. 2. and being still under the Sentence of Excommunication, he took upon him the Office and executed it for 3 Months, viz. to the 12th day of February afterwards, and then refused to serve any longer; the judges came soon after to keep the Assizes for that County, but there was no Sheriff there to attend them, and the reason was, because if he had executed the Office without taking the Oaths (the time being now expired, wherein he ought to have taken the same,) than he had subjected himself to the forfeiture of 500 l. and he could not receive the Sacrament because he was Excommunicated, and therefore supposed that after the 3 Months he was ipso facto discharged by the aforesaid Statute; and whether upon all this matter the Defendant be guilty was the Question. Ward and Sir William Jones the Attorney General argued that the Defendant was Guilty. 1. The Oath and Sacrament are necessary qualifications for all Sheriffs, because the Act appoints these things to be done, and the Penalty therein extends to those who execute any Office after the three Months, without doing the same, but not to such who neglect to qualify themselves. And though it may be objected, that the Act gives no Penalty for not taking of the Oath, it only enjoins it to be done, and subjects the person to the forfeiture of 500 l. for executing an Office after three Months, that being not done; so that this is not to be punished by Information, it being no Offence at the Common Law; yet if an Act appoints a thing to be done, the transgressing of the Law is an Offence at the Common Law, and aught thus to be punished, and so it was adjudged in Castle's Case, 2 Cro. 643. 1 Roll. Abr. ●51, 455. Suppose the Defendant had given Bond to perform a thing, a discharge by the Act of God, or by the Obligee had been good, but the Obligor should never disable himself; and if it be so in private Contracts, much more in the Case of the King, because our Duty to him is of the highest nature. 2. Therefore the Excommunication can be no excuse to the Defendant, for though he might have been excused if he had been under a legal disability, which he could in no wise prevent; yet here he was able and had time enough, and it was in his power to have discharged himself from this Excommunication, and being bound by his Duty and Allegiance to the King to perform the Office, he ought to qualify himself for the performance, and either to remove the disability or show he had not power to do it. 'Tis his obstinacy that disables him, and 'tis absurd to think that this Excommunication which was designed as a punishment should now be an ease to him to excuse him from executing this Office, Moor 121. Lacie's Case. 3. That the Defendant is punishable for this neglect, otherwise the King would lose the effect of his Subjects Service, if it should be in their power to discharge themselves at pleasure; an Act of Parliament cannot, and much less the Defendant himself by his own act take away his Duty and Service which he oweth to the King: And therefore, though 'tis Enacted, That a Sheriff shall be only for one year, yet it has been adjudged that the King by a Non obstante may dispense with that Statute, Antea. because otherwise he would be deprived of the Service of his Subjects. If a Sheriff when he is first admitted into his Office refuses to take the Oath of his Office, he is finable, and so he ought here; if any alteration be made by the King of that Oath, his disobedience afterwards is punishable, Cro. Car. 26. though a form of the Oath is prescribed by the Act of Parliament, and there is no other way to punish the Defendant in this Case but by Information, for after the three Months (in case he execute the Office not being qualified) the Act gives the Penalty to the Informer; and if he should not execute it the inconvenience would be great, because 'tis and Office which concerneth the Administration of justice, and necessary for the management and collection of the King's Revenue. The Statute extends to Offices of Trust as well as of Profit, and enjoins the thing to be done, the transgression whereof is an Offence, as well at the Common Law as against the Statute, and so punishable by Information, and therefore they prayed judgement against the Defendant. Sawyer and Levins contra. Viz. They agreed if the Subject be qualified he ought to accept the Office, Ex parte Def. but the Defendant was not so qualified, and therefore to be excused. But before they entered upon the debate whether this was an Offence or not, they took an Exception to the form of the Information. Viz. That it was not good, because it did not conclude contra formam Statuti; for if the Offence be at the Common Law, and a new Penalty is given by the Statute, the Proceed ought to be either at the Common Law by way of Fine, or upon the Statute for the Penalty; but if the Offence be by the Statute, than it must be laid to be contra formam Statuti. Now if this was any Offence in the Defendant, it was because he did not receive the Sacrament and take the Oath, which is an Offence against the Statute, and therefore aught to conclude contra formam Statuti, which is essential. Then as to the Substance; 1. The Information is insufficient, for there is no Offence at all of which the Common Law doth take notice; and though the Consequences of the thing done may be bad, yet no Man shall be punished for that, because those only aggravate the Offence, if any; neither is this Information true, for it saith he refused absque rationabili causa, but here was a reasonable cause: And though it may be objected, that it was only impotentia voluntatis; and that every Subject being disabled, is to remove that disability to serve the King, this was denied; for a Man who is a Prisoner for Debt is not bound or compellable to be Sheriff, neither is a Man bound to purchase Lands to qualify himself to be either a Coroner or justice of the Peace. By the Statute of 3 Jac. every Recusant is disabled; he may conform, but he is not bound to it, for if he submits to the Pemalty, 'tis as much as is required by Law: 'Tis true, a Subject is bound to serve the King in such capacity as he is in at the time of the Service commanded, but he is not obliged to qualify himself to serve in every capacity: Neither doth it appear in this Case, that the Defendant was able to remove this Incapacity, and that should have been shown on the other side, and all judges are to judge upon the Record. The intent of the Statute is, That if persons will not qualify themselves, they shall not execute any Office, and it was made to keep Roman Catholics out of Places, but not to force them to accept of Offices of Trust in the Government; and it designs no punishment for quitting, but for executing of a place contrary to the Law; but if this be an Offence, this Information will not lie; and for that 2. It was argued, That if a thing be either commanded or forbidden by a Statute, the transgression in either Case is an Offence punishable by Information; 25 H 6. pl. 9 b. 7 H. 4. 5. but when an Act doth not generally command a thing, but only sub modo, the party offending is punishable no otherwise than designed by that Law; as where the Statute of 18 H. 6. cap. 11. prohibits any Man from being a justice of the Peace, unless he have 40 l. ꝑ Ann.. and the Statute of 5 & 6 E. 6. cap. 16. which makes such Bargains as are therein mentioned about buying of Offices void, if such Office be forfeitable, than an Information will lie; but when 'tis ipso facto void, as in both the former Cases, then 'tis otherwise, because the punishment is executed by the Statute itself; and therefore where the avoidance is made by the Act, there is no need of an Information. And the Objection of impotentia voluntatis is not material to this purpose, because Simony, buying of Offices, not subscribing the 39 Articles, according to the Statute of the Queen; these are all voluntary Acts, yet no Information lies against such Offenders, because the Statutes execute the punishment. The intent of the Parliament is here declared, the disability of the person makes the Office void; void to all intents, for the Right of Infants or Men in Prison is not saved; so that admitting it to be an Offence, if the Duty be not performed; yet if such a qualification be requisite to make a Man to act in such an Office, or perform such a Duty, if that qualification be wanting, the Party is only punishable by the loss of the Office. The Act doth not distinguish between Offices of Trust and Profit: And as to the other Objection, viz. That 'tis in the power of the Defendant to qualify himself, the same might as well be objected against all the Popish Recusants, upon the Statute of 3 Jac. and if a Statute doth disable persons or abridge the King of their Services, there is no injury done, because the King himself is party to the Act; but if mischiefs were never so great, since they are introduced by a Law, they cannot be avoided till that Law is changed. 3. But admitting the Information to be good, and that this is an Offence for which it will lie, yet the Excommunication is a sufficient excuse; it appears by the Verdict that the Defendant was absolutely disabled to be Sheriff, for if he is to take the Oath and receive the Sacrament in order to it, if he cannot be admitted to the Sacrament, as being under the Sentence of Excommunication, that is an excuse. The Defendant is only argued into a Gild, for the jury have not found any; they do not say, that it was in his power to yield Obedience, or that he might have enabled himself; they only find his incapacity, and though it was a voluntary Act, which was the cause of his disability, yet in such Cases the Law doth not look to Causes so remote. If a Man be in Prison for Debt it is his own Act for contracting it and not paying, but yet an Outlary against him whilst in Prison shall be reversed, because the immediate Cause, viz. the Imprisonment; and the judgement was in invitum, and the Law looks no farther; and so judgement was prayed for the Defendant. But the Court were all of Opinion, that this Information would lie, and that the Defendant was punishable for not removing the disability, it being in his power to get himself absolved from the Excommunication: And so judgement was given against him, and a Writ of Error brought, etc. Godfrey versus Godfrey. In Communi Banco. Intrat' Hill. ult. Rot. 321. DEBT upon a Bond for performance of an Award, Award of a lesser Sum in satisfaction of a greater, and good. in which the Arbitrators had taken notice of 72 l. in controversy, and had awarded 50 l. in satisfaction: The Defendant pleads Nullum fecerunt Arbitrium; the Plaintiff replies an Award, and sets it forth and assigns a Breach, to which the Defendant demurred, because it appeared by the Award that 72 l. was in controversy for Rent due, and that 50 l. was awarded in full satisfaction of 72 l. and general Releases to be given; but it did not appear that any other Matter was in Controversy between the Parties though the Submission was general; and Arbitrators may reduce incertain things to a certainty, but they cannot make a Debt certain to be less, except there were other differences for which likewise this Release was to be given, 10 H. 7. 4. But the whole Court were of Opinion that the Award was good, Curia. for that the Arbitrators might consider other Matters between the Parties; neither did it appear by the Award that the 72 l. was due, but in demand only; and 'tis unreasonable for him to find fault with his own case; for he alleges that he ought to pay 72 l. and complains, because the other Party is contented with 50 l. and demands no more. judgement for the Plaintiff. Wright versus Bull. Condition where 'tis disjunctive 'tis in the Election of the Party to have either. DEBT upon a Bond for payment of 40 l. The Condition whereof was, That if the Defendant should work out the said 40 l. at the usual Prices in packing, when the Plaintiff should have occasion for himself or his Friends to employ him therein, or otherwise shall pay the 40 l. then the Bond to be void. The Defendant pleads, that he was always ready to have wrought out the 40 l. but that the Plaintiff did never employ him; and upon Demurrer the Plea was held ill, because the Defendant did not aver, that the Plaintiff had any occasion to make use of him; and for that it was at his Election either to have Work or Money, Basket and Basket, Antea. and not having employed him, but brought his Action, that is a request in Law; and so he hath determined his Election to have the Money; and judgement was accordingly given for the Plaintiff. Blackbourn versus Conset. Place, where it shall be intended tho' not laid in the Pleading. IN Replevin, the Avowant pleads an Execution taken out, and that a Term for years was extended, and an Assignment thereof made by the Sheriff, but alleges no place where the Assignment was made: But upon Demurrer it was held good, for it shall be intended to be assigned where the Land doth lie. Hall versus Carter. Bond to render himself a Prisoner, good. IN an Action of Debt upon a Bond, the Defendant craves Oyer of the Condition, which was, That if another person (who was arrested at the Suit of the Plaintiff, (and for whom the Defendant was now bound) should give such Security as the Plaintiff should approve of for the payment of 90 l. to him, Sid. 132. pl. 4. or should render his Body to Prison at the return of the Writ, than the Obligation to be void. The Defendant pleads the Statute of 23. H. 6. cap. 10. That this Bond was given pro easimento & favore; And this Case coming to be argued upon a Demurrer, the question was, whether such Bond be within the Statute or not: And the Court were of Opinion that it was not. If the Sheriff takes Bond in another Man's name, to elude the Statute, such Bond is void; but the Plaintiff may give directions to the Officer to take such Bond as this to himself; 'tis only an expedient to prevent a new Arrest, and the Agreement of the Plaintiff makes it good. If a Capias be taken out against the Defendant, and a third person gives the Plaintiff a Bond, that the Defendant shall pay the Money, or render himself at the Return of the Writ; 'tis a good Bond, and not within the Statute, because 'tis not by the direction of the Officer, but by the agreement of the Plaintiff; and there is no Law that makes the Agreement of the Parties void; and if the Bond was not taken by such Agreement, it might have been traversed. But justice Atkyns doubted, because a Bond to render himself a Prisoner is void, Bewfages' Case, 10 Co. But if it had been to pay the Money, or appear at the Return of the Writ, it had been good: But notwithstanding judgement was given for the Plaintiff. Shaxton versus Shaxton. THE Condition of a Bond was, Non damnificatus not a good Plea, where the person and Lands are to be indemnified Antea. That the Defendant should save harmless Thomas Shaxton, and the Mortgaged Premises, and should pay the Interest for the prinicipal Sum. The Defendant pleads, that Thomas Shaxton non fuit damnificatus, for that the Defendant had paid the 120 l. principal money, with all the arrears of Interest due at such a day: And upon a Demurrer this was held no good Plea; because the first matter non damnificatus goes to the Person and not to the Premises: And so judgement was given for the Plaintiff. Anonymus. After acquittal for a Common Trespass, an Action on the Case will not lie. Sid. 465, 466. Antea. THE Defendant was Indicted for a Common Trespass, and Acquitted; and now was Plaintiff in an Action on the Case against the Prosecutor: And by the Opinion of the Chief justice the Action will lie for the Charges and Expenses in defending the prosecution, which the acquittal proves to be false, and the Indicting him proves to be malicious; for if he had intended any thing for his own benefit or recompense, he might have brought a civil Action, and then if he had been found Not Guilty, he would have had his Costs allowed. Though the prosecution be for a Trespass, for which there is a probable cause, yet after Acquittal it shall be accounted malicious; the Difference only is where the Indictment is for a Criminal matter, but where 'tis for such a thing for which a Civil Action will lie, the Party can have no reason to prosecute an Indictment, it is only to put the Defendant to charges, and make to him pay Fees to the Clerk of the Assizes. Penrice and Wynn's Case. Habeas Corpus may be granted in Civil matters. Sergeant Maynard moved for a Habeas Corpus for them, being committed to the Poultry Compter by the Commissioners of Bankrupts, for refusing to be examined and sworn touching their Knowledge of the Bankrups Estate: The Process against them in this Court, was an Attachment of Privilege, which was a Civil Plea, and of which the Court had jurisdiction, and therefore the Habeas Corpus must be granted. And the Chief justice said, that it might be without motion, because all the Habeas Corpus' in that Court were ad faciendum & recipiend and they issue of course; Antea. but in the Kings-Bench they are ad subjiciendum which are in Criminal Causes, and not to be granted without motion. Then the Sergeant moved that the Sheriff might Return his Writ, which was done, and being filled, he took Exceptions to the Return, by which the ground of the Commitment appeared to be by virtue of a Warrant under the Hands and Seals of the Commissioners, etc. which he said was ill for want of an Averment of their refusal to come and be sworn; for it did not appear that they did refuse, and they ought not to be committed without refusing, so that should have been positively averred, viz. That they did refuse and still do; for if they are willing at any time, they ought to be discharged, and so they were, but were ordered to put in Bail upon the Attachment. Abbot versus Rugeley. THE Plaintiff declared in an Action of Assault and Battery, to which the Defendant pleaded none cull, Plea puis darrein continuance must be certified as part of the Record of Nisi prius. and at the Assizes a Plea was put in puis darrein continuance, and a Demurrer thereunto. The Court were clear of Opinion, That if the Plea had been issuable, it could not have been then tried, neither could the Demurrer be there argued, but must be certified up hither by the judge of Assize, as part of the Record of Nisi prius, Yelv. 180. Hawkins versus Moor. Ballard versus Oddey. It was ruled in this Case, The Contract itself must be Usurious to make it void. 1 Sand. 295. Mod. Rep. 69. That to avoid a Security by reason of Usury, the Contract itself must be usurious, for if the Party takes afterwards more than is allowed, that will not make it so; so that if the Agreement of the Parties be honest, but made otherwise by the mistake of a Scrivener; yet 'tis not Usury: As if a Mortgage be for 100 l. with a Proviso to be void on payment of 106 l. at the end of one year, and no Covenant for the Mortgagor to take the Profits till default be made in payment; so that in strictness the Mortgagee is entitled both to the Interest and the Profits, yet if this was not expressed, the Agreement is not Usury. DE Term. Sanctae Trin. Anno 30 Car. II. in Communi Banco. The Case of one Randal and his Wife, an Administrator, etc. Judgement may be avoided without a Writ of Error by a Plea, where the Party is a Stranger to it. DEBT upon a Bond against the Defendant as Administrator: They plead a judgement recovered against the Intestate in Hillary Term 26 & 27 Car. 2. and that they had not Assets ultra. The Plaintiff replies that there was an Action against the Intestate, but that he died before judgement, and that after his death judgement was obtained, and kept on foot per fraudem. The Defendant traversed the Fraud, but did not answer the death of the Intestate; and upon a Demurrer it was said for the Plaintiff, that the judgement was ill, and that he being a Stranger to it could neither bring a Writ of Error or Deceit, and had no other way to avoid it, but by Plea; and that 'tis put as a Rule, That where judgement may be reversed by a Writ of Error, the Party shall not be admitted to do it by Plea; but a Stranger to it must avoid it by Plea, because he is no Party to the judgement; as if a Scire Facias be brought against the Bail 'tis a good Plea for them to say, that the Principal was dead before judgement given by way of excusing themselves to bring in the Body; but 'tis not good to avoid the judgement, because 'tis against the Record, Cro. Eliz. 199. which must be avoided by Writ of Error, 1 Roll. Abr. 449, 742. The Court were of Opinion, that the Plaintiff might avoid the judgement without a Writ of Error, especially in this Case, where 'tis not only erroneous, but void. Hill versus Thorn. IN an Arbitrament it was held by the Court, Rules in an Award. that if two things be awarded, the one within, and the other not within the Submission; the later is void, and the breach must be assigned only upon the first. 2. If there be a Submission of a particular difference, and there are other things in Controversy, if in such Case a general Release is awarded 'tis ill, and it must be showed on the other side to avoid the Award for that cause. 3. If the Submission be of all differences till the 10th day of May, 1 Sand. 33. and a Release awarded to be given of all differences till the 20th day of May, if there be no differences between those two days the Award is good; if any, it must be showed in Pleading, 1 Roll. Abr. 257. otherwise the Court will never intent it. 4. Smith and Shelbury, Antea. That reciprocal Covenants cannot be pleaded in bar of another, and that in the assigning of a Breach of Covenant 'tis not necessary to aver performance on the Plaintiffs side. Staples versus Alden. DEBT upon a Bond conditioned to deliver forty pair of Shoes within a Month at Holborn-Bridge to Henry Knight a Common Carrier to G. for the use of the Obligee. Tender of Goods to the Man shall be a Tender to the Master. The Defendant pleaded, that in all that space of a Month Henry Knight did not come to London, but that such a day at Holborn-Bridge he delivered forty pair of Shoes to A. G. the Carrier's Porter: To this Plea the Plaintiff demurred; for that the Condition being to do something to a Stranger, the Defendant at his peril ought to perform it; 33 H. 6. 13. 4 H. 7. 4. like the Case where the Action of Debt was brought upon a Bond conditioned, that the Defendant should give such a Release as the judge of the Prerogative Court should think fit; the Defendant pleaded that the judge did not appoint any Release, and it was adjudged no good Plea, because the Obligation is on his part, and he ought to tender a Release to the judge, Cro. Eliz. 716. But on the other side it was said, that a delivery to the Servant is a delivery to the Master himself; and if parcels of Goods are delivered to the Porter and lost, an Action lies against the Master. Curia. The Court (absent North Chief justice) held the Plea to be good, and that such a Construction was to be made as was according to the intent of the Parties, and that a delivery to the Man was a delivery to the Master; whereupon judgement was given for the Defendant. Gillmore versus Executor of Shooter. In Banco Regis. A new Act shall not take away an Action to which the Plaintiff was entitled at the Commencement of the Act. INdebitatus Assumpsit. There was a Treaty of Marriage between the Plaintiff, who was of kin to the Testator, and the Daughter of one Harris, with whom he afterwards had 2000 l. as the Marriage Portion; and Mr. Shooter in his Life time promised to give the Plaintiff as much, or to leave him worth so much by his Will. This Promise was made before the 24th day of June, before this Action brought; the Marriage took effect, Harris paid the 2000 l. and Shooter died in September following, having made no payment of the Money, or any Provision for the Plaintiff by his Will. This Action was commenced after Shooter's death, and upon the Trial a Special Verdict was found upon the Act of Frauds and Perjuries, 29 Car. 2. c. 29 Car. 2. which Enacts, That from and after the 24th day of June in the year 1677. no Action shall be brought to charge any person upon any Agreement made in consideration of Marriage, etc. unless such Agreement be in Writing, etc. And that this was a bare Promise without Writing. And by Wyld and Jones (absent Twisden) judgement was given for the Plaintiff; for it could not be presumed that the Act had a retrospect to take away an Action to which the Plaintiff was then entitled: For if a Will had been made before the 24th day of June, and the Testator had died afterwards, yet the Will had been good though it had not been in pursuance of the Statute. Aster versus Mazeen. In C. B. IN Covenant, Breach assigned did relate to three Covenants, the Declaration concludes & sic fregit Conventionem, and good. the Plaintiff declared upon an Indenture in which the Defendant had covenanted that he was seized in Fee, etc. and would free the Premises from all Encumbrances, in which there was also another Covenant for quiet Enjoyment; and the Breach assigned was upon an Entry, and Eviction by another, and concludes & sic Coventionem suam praedictam fregit, in the singular Number. And upon a Demurrer to the Declaration Maynard Serjeant said, That the Breach did relate to all the three Covenants, and therefore the Conclusion was ill, because he did not show what Covenant in particular, and if he should obtain a judgement upon such a Declaration, the Recovery could not be pleaed in Bar to another Action brought upon one of the other Covenants. But Conyers for the Plaintiff said, that Conventio is Nomen collectivum, and if twenty Breaches had been assigned he still counts de placito quod teneat ei Conventionem inter eos fact': And of that Opinion was the Court; and that the Breach being of all three Covenants, the Recovery in one would be a good Bar in any Action afterwards to be brought upon either of those Covenants. Parrington versus Lee. INdebitatus Assumpsit, Limitation of personal Actions only extends to account between Merchants. Mod. Rep. 268. 2 Sand. 125, 127. Pl. Com. 54. for Money had and received to the use of the Plaintiff, a quantum meruit for Wares sold, and an Insimul computasset, etc. The Defendant pleads the Statute of Limitations (viz.) non assumpsit infra sex annos: The Plaintiff replied, that this Action was grounded on the Trade of Merchants, and brought against the Defendant as his Factor, etc. The Defendant rejoins that this was not an Action of Account; and the Plaintiff demurred, for that this Statute was made in restraint of the Common Law, and therefore is not to be favoured or extended by Equity, but to be taken strictly; and that if a Man hath a double remedy he may take which he pleaseth; and here the Plaintiff might have brought an Action of Account, or an Action on the Case grounded on an Account. But Baldwyn Serjeant insisted that the Declaration was not full enough, for the Plaintiff ought to set forth, that the Action did concern Merchants Accounts, and that the Replication did not help it. The Court were of another Opinion; for that it need not be so set forth in the Declaration, because he could not tell what the Defendant would plead, so that supposing him to be within the Saving of the Act his Replication is good; and 'tis the usual way of Pleading, and no departure, because the Plea of the Defendant gives him occasion thus to reply. But the Saving extends only to Accounts between Merchants their Factors and Servants; and an Action on the Case will not lie against a Bailiff or Factor where Allowances and Deductions are to be made, unless the Account be adjusted and stated, as it was resolved in Sir Paul Neals Case against his Bailiff. Where the Account is once stated, as it was here, the Plaintiff must bring his Action within six years; but if it be adjusted and a following Account is added, in such case the Plaintiff shall not be barred by the Statute, Mod. Rep. 71. because 'tis a running Account; but if he should not be barred here, than the Exception would extend to all Actions between Merchants and their Factors, as well as to Actions of Account which was never intended, and therefore this Plea is good, and the Saving extends only to Actions of Account; whereupon judgement was given for the Defendant. Astry versus Ballard. In Banco Regis. Principals in Execution the Bail are liable. 1 Ventris 315 THE Defendant became Bail for six persons, against whom the Plaintiff got a judgement, and two were put in Execution; the Plaintiff afterwards brought a Scire Facias against the Bail, who pleaded that two of the Principals were taken in Execution before the Scire Facias brought, and whether the Bail was not discharged thereby was now the Question? It was agreed, that if five had surrendered themselves after judgement, 2 Cro. 320. 1 Roll. 897. yet the Bail had been liable; but are not so if the Plaintiff (as in this Case) hath once made his Election by suing out Execution against the Principals, and thereupon two are taken and in Custody. Before the Return of the second Scire Facias they have Liberty by the Law to bring in the Principals; but the Plaintiff having taken out Execution he hath made it now impossible for the Bail to bring them in to render themselves. But Sypmson argued that the Bail was not discharged; for he ought to bring in the other four or else he hath not performed his Recognizance; and so it was adjudged by the Court, Sid. 107. for the Law expects a complete satisfaction: The like Resolution was in this Court between Orlibear and Norris. Steed versus Perryer. IN a Special Verdict in Ejectment the Case was this, Republication makes it a new Will. viz. Robert Perryer being seized in Fee of the Lands in question, had Issue two Sons, William his eldest, and Robert his youngest Son, and being so seized he devices these Lands to his youngest Son Robert and his Heirs. Robert the Devisee dies in the Life time of his Father, Jones 135. 1 Ventris 341 Mod. Rep. 267. and leaves Issue a Son named Robert, who had a Legacy devised to him by the same Will. The Grandfather afterwards annexed a Codicil to his Will, (which was agreed to be a Republication) and then he expressly publishes the Will de novo, and declared that his Grandson Robert should have the Land as his Son Robert should have enjoyed it had he lived. And whether the Grandson, or the Heir at Law, had the better Title was the Question? Pemberton and Maynard Sergeants argued for the Title of the Plaintiff (who was Heir at Law) That if a Devise be to S. and his Heirs, if S. die living the Devisor, the Heir shall take nothing, because no Estate vested in his Ancestor; so if a Devise be to the Heirs of S. after his decease, the Heir shall take by Purchase, for he cannot take as Heir for the Reason aforesaid. By the death of Robert the Son, the Devise to him and his Heirs was void, and the annexing a Codicile and Republication of the Will cannot make that good which was void before; if it cannot make it good, than the Heir cannot take by Purchase, and by descent he cannot take, for his Ancestor had no Estate, and therefore he shall have none. Besides, this is not a good Will within the Statute, which requires it to be in Writing: Now the Devise by the written Will was to the Son, and the Republication to the Grandson was by Words and not in Writing; so that if he cannot take by the Words of the Will he is remediless, and that he cannot take as Heir, because his Ancestor died in the Life time of the Testator, Moor 353. Cro. Eliz. 243. Cro. Eliz. 422. Moor 353, 404. Skipwith and Barrel on the other side, That the new Publication makes it good, for it makes a new Will in Writing, and it shall take according to the Publication which makes it have the effect of a new Will. 'Tis true, Deeds shall not be extended father than the intent and meaning of the Parties at the time of the Delivery, but Wills are to be expounded by another Rule; therefore though by the death of the Son the Will was void, yet by the Republication it hath a new Life, 1 Roll. Abr. 618. 5 Co. 68 8 Co. 125. The Chief Justice, Wyndham and Atkins justices were of Opinion for the Grandson against the Heir at Law, viz. That the Republication made it a new Will, and the Grandson should take by the Name of Son: And justice Atkins relied on the Case of Brett and Rigden in the Commentaries, where new purchased Lands passed by a Republication; but a Writ of Error being brought upon this judgement in the King's Bench, it was reversed. Anonymus. In Banco Regis. MR. Sanders moved for a Prohibition to the Spiritual Court in the Case of the Children of one Collet and Mary his Wife, to stay Proceed there upon a Libel against them; that the said Collet had married Anne, the Sister of the said Mary. They both appear and confess the Matter, upon which a Sentence of Divorce was to pass, whereas in truth Collet was never married to Ann, but it was a contrivance between him and his Wife to get themselves divorced, and the Marriage declared void ab initio to defeat their Children of an Estate settled upon them in Marriage with Remainders over, by bastardising them after they had been married and lived together 16 years. The Reason why a Prohibition was prayed was, because Marriage or no Marriage was to be tried in pais, for that the Inheritance and Freehold of Land were concerned in this Case. The Court directed that they should suggest this Matter, Curia. and that it was a Contrivance to obtain a Sentence of Divorce to defeat them of their Estate entailed on them, and then to move for a Prohibition. Smallwood versus Brickhouse. THE Suggestion was, Spiritual Courts are proper to determine where a person is capable of making a Will. Godolph. 276. that B. being under the Age of sixteen years had made a Will, and that the Prerogative Court proceeded to the proof of it; whereas by the Common Law a person is not capable till 17 years; and therefore a Prohibition was prayed. And that the Common Law hath determined the time my Lord Coke's Comment upon Littleton was cited, 1 Inst. 89. b. where 'tis said, That at 18 years of Age he may make his Testament and constitute Executors; and the Age of a person is triable also in pais. But the Court said, Curia. that the Proof of Wills and the Validity of them doth belong to the Ecclesiastical Court; and if they adjudge a person capable, the Court will not intermeddle, for 'tis within their jurisdiction to adjudge when a person is of Age to make a Will; and sometimes they allow Wills made by persons of 14 years of Age, and the Common Law hath appointed no time, it depends wholly on the Spiritual Law; and therefore a Prohibition was denied Joan Bailies Case. NOTA. One Joan Bayly being in Execution, Administration was committed to the Debtor in Execution. the Plaintiff died intestate, and the Right of Administration came to her, and a Motion was made for a Habeas Corpus to bring her from the Compter into this Court; for that having administered to her Creditor she might be discharged; but it was denied, for she could not be thus discharged, because non constat de persona; neither can she give a Warrant of Attorney to acknowledge satisfaction, therefore let her renounce the Administration and get it granted to another, and then she may be discharged by a Letter of Attorney from such Administrator. Anonymus. Mandamus. MAndamus to swear one who was elected to be one of the Eight Men of Ashburn Court; it was denied, because it is incertain; for it ought specially to be inserted what the Office is, and what is the place of one of the Eight Men of Ashburn Court, that it may appear to the Court to be such a place for which a Mandamus doth lie; and though such a Writ hath been granted for one of the approved Men of Guildford, yet it was specially set forth what his Office was. Birch versus Lingen. Trin. 34 Car. 2. in B. R. Discontinuance where amendable. JVdgment was obtained upon a Bond 25 years since, and in one of the Continuances from one Term to another there was a blank. The Executors of the Defendant now brought a Writ of Error; and the Plaintiff in the Action got a Rule to amend and insert the Continuance, suggesting to the Court, that it was a judgement of a few Terms, and so aided by the Statute of 16 & 17 Car. 2. cap. 8. Hugh's Abr. tit. Costs 480. 2 Sand. 289. Moor 710. Cro. Eliz. 320, 489, 553, 619. Cro. Jac. 211, 353, 528. Upon this Rule the Plaintiff fills up the Blank, and the Record was certified so filled up into the Exchequer-Chamber. And Mr. Pollexfen moved for the Defendant, that the Record might stand as it did at first, and that the Rule was got by a trick and on a false Suggestion, it being a judgement before the Restoration of this King, and a Discontinuance not amendable, for 'tis the Act of the Court; and for an Authority in the Point the Case of Friend and Baker was cited, where after a Record certified, Styles 339. a Motion was made to amend it, because day was given over to the Parties from Easter to Michaelmas-Term, and so Trinity-Term left out, where by the Opinion of Roll Chief justice, that the giving of a day more than is necessary is no Discontinuance; but where a day is wanting, 'tis otherwise. But Sanders for the Plaintiff said, that this was only a Misprision of the Clerk and no Discontinuance, but amendable: The Clerks commonly leave Blanks in the Venires, and if they neglect to fill them up 'tis only a Misprision and amendable by the Court; and the Record being now filled up by the Rule of the Court, ought not to be razed to make an Error. The Chief justice was of Opinion, That this was not a discontinuance, but an insufficient continuance, and an omission of the Clerk only, who if he had filled up this Blank himself without Rule, it could not afterwards be set aside. But justice Jones was of another Opinion, That it was such a misprision of the Clerk, as was not amendable by the Statute of H. 6. since it was not the same Term, and all the Proceed being in the Breast of the Court only during the Term, it ought not to be altered, but left in Blank as it was; for where judgement is entered for the Plaintiff, the Court may upon just cause alter it the same Term for the Defendant, but not of another Term, the whole Term being but one day in Law: And though the Writ of Error be returned into the Exchequer, that will make no alteration, for the Record itself remains still here, and 'tis only a Transcript that is removed thither. Sed Adjornatur. Anonymus. TRespass for breaking of his Close. The Defendants plead, Power where 'tis coupled with an Interest is assignable. That the place where were, etc. the Lands of one Martin, who made a Lease thereof to the Plaintiff, and did thereby except the Trees growing on the same: In which Lease the Plaintiff did Covenant with the said Martin, his Heirs and Assigns, that he and they from time to time, during the said Lease, should have liberty and full power to Fell the said Trees, and root them up, repairing the Hedges where they did grow. That the said Martin granted some of the Trees to the Defendant, by virtue whereof he and the rest of his Servants did cut them down, which is the same breaking of the Close of which the Plaintiff complains: To which Plea Mr. Pollexfen did demur for the Insufficiency, because the Defendant did not show, that upon cutting down the Trees he did repair the Hedges, as by the Agreement ought to have been done; for this being a limited and qualified power ought to be set forth at large; and that it was a power only annexed to the Reversion and not assignable to any one else, and so the Defendant hath wholly failed in his Plea; he might have justified under Martin, but not in any of their own Rights. But the Court were of Opinion, That an Action doth lie in this Case, both against the Lessor and his Assignee, acting under his Power; and they agreed that a bare power was not assignable; but where 'tis coupled with an Interest, it may be assigned, and here was an Interest annexed to the power; for the Lessor might sever the Trees from the Reversion. Whereupon judgement was given for the Defendant. Scoble versus Skelton. Presciption must be alleged with a Seisin in Fee. THE Plaintiff declared, That he was seized of a Tenement called East, and the Defendant of another Tenement called West Travallock; and that he and all those whose Estate he had, did use to fetch Pot Water from the Defendants Close, etc. Issue was taken upon this Prescription, and a Verdict for the Plaintiff; and Mr. Pollexfen moved in Arrest of judgement, That the Declaration did set forth generally that he was seized, and it did not appear it was in Fee; for if it be for Life only, than the Action doth not lie, because a Prescription cannot be annexed to an Estate for Life. Tremain insisted, that the Declaration was sufficient, and certain enough, for when the Plaintiff doth allege that he was seized generally, it shall be intended a seisin in Fee; especially after Verdict. But the Court held the Declaration to be defective in Substance, because a Prescription cannot be annexed to any thing but an Estate in Fee, and therefore 'tis not helped after Verdict. The judgement was reversed. Put versus Roster. A Recovery in Trespass, good Plea in bar to an Action of Trover. TRespass for taking of his Cattle: The Defendant justifies for a Herriot, and upon a Demurrer had judgement. The Plaintiff did afterwards bring an Action of Trover and Conversion for the same Cattle, and the Defendant pleaded the former judgement in Trespass, in bar to this Action of Trover, and the Plaintiff demurred. Sergeant Maynard argued, That the Plea was not good, because Trespass and Trover are distinct Actions, and one may be where the other is not; as, if an Infant give Goods to one, an Action of Trover doth lie to recover them, but Trespass will not: So if Goods be delivered to another, and he refuse to deliver them upon demand, Trover, but not Trespass will lie; and therefore these being different Actions, a Recovery in one shall be no bar to the other. A Formedon brought in the Descender, and judgement thereon, is not pleadable in bar to a Formedon in Remainder. There is a great difference between a bar to the Action, 5 Co. 33.6 Co. 37. a. Cro. El. 667. Eo. Entr. 38. b. 2 Cro. 15. pl. 20. Antea. and to the Right; as where an Administrator sues, not knowing that he was made Executor, and judgement against him; and he afterwards proved the Will, and brought an Action as Executor; the former judgement had against him as Administrator shall not be a bar to this new Action, because 'tis not a bar to the Right, for by misconceiving his Action the former abated. But Mr. Holt argued, That these were Actions of the same nature, and therefore a judgement in one was a good Plea in bar to the other; Trespass or Trover lies for taking or carrying away the Goods of another, and when he hath made his Election which to bring, a Recovery there shall be a perpetual bar to the other. In an Appeal of Mayhem, 4 Co. 39 the Defendant pleaded a former Recovery in an Action of Assault and Battery, and held good; though one is of a higher nature than the other. But the Court were of Opinion, Curia. Rose and Standen, Antea. That an Action of Trover doth lie where a Trespass doth not, and if the Plaintiff hath mistaken his Action, that shall be no bar to him. As to the Case put of the Mayhem, Rozal and Lampen, Antea. that doth not agree with this, because there can be no Mayhem without an Assault, but there may by a Trover without a Trespass; and though the Appeal of Mayhem be of a higher nature than the Assault, because it doth suppose quod felonice Mayhemiavit, yet the Plaintiff can only recover damages in both. If a Man bring Trespass for the taking of a Horse, and is barred in that Action, yet if he can get the Horse in his possession, the Defendant in the Trespass can have no Remedy, because notwithstanding such Recovery the Property is still in the Plaintiff. The Defendant in this Case hath justified the taking of the Cattle for a Herriot, and by the Demurrer the justification is confessed to be true in fact; now by the taking for a Herriot, the property of the Goods was altered; and wherever the Property is determined in Trespass, an Action of Trover will never lie for the same, but 'tis a good Plea in bar; and so it was adjudged here. James versus Trollop. Prescription for a Modus good. ERror of a judgement in the Common-Pleas on an Action upon a Prohibition, where the Plaintiff did suggest, That William late Prior of Norbury in Staffordshire, was seized of the said Manor and of the Tithes thereof simul & semel, as of a portion of Tithes, etc. That the said Prior 25 H. 1. granted the said Manor and Tithes to William Fitzherbert and his Heirs, rendering Rent: That the said Fitzherbert did Enter and was seized, and held it discharged of Tithes; that his Heirs afterwards granted two Hides of Land, part of the said Manor, to S. with the Tithes, at 5 s. Rent; and so draws down a Title by Descent for 300 years to F. who being seized devised the same to Dorothy James, (under whom the Plaintiff in the Prohibition claimed) and then concludes, That Fitzherbert and all those whose Estate, etc. did pay the said Rent to the said Prior, which since the Dissolution was paid to the King and his Assigns, in discharge of all Tithes, etc. The Defendant having craved Oyer of the Deed demurred to the Suggestion; and judgement was given for the Plaintiff in the Common-Pleas. And it was now said for the Plaintiff in the Errors, That it doth not appear by the Plead whether the Plaintiff in the Prohibition would discharge himself by a Praescription in non decimando, or in modo decimandi; for the Grant from the Prior being the foundation of his Title, he could not thereby be discharged, because a Deed before Memory cannot be pleaded, unless it hath been allowed in a Court of Eyre, or some Court of Record since Memory; and this Deed being dated in the Reign of King Henry the I. which was 65 years before the time of Memory by the Common Law, that beginning in the Reign of Richard the I. whatever is before that time cannot be tried by Law; if it had been allowed in Eyre, or in some of the Courts of Record, it may be pleaded, but no usage in pais can confirm it. But supposing the Deed to be good, the Plaintiff hath alleged a Grant of a portion of Tithes which he cannot have; for at the Common Law a Layman was not capable of Tithes in prender, for no one had capacity to take or receive them, Jones 369. 2 Co. 49. save only spiritual persons, for which Reasons a Layman could not prescribe in non decimando, but in modo decimandi he might, because there is still an annual recompense in satisfaction thereof. 2. 'Tis not alleged, that the place where, etc. was parcel of the Demesus of the Manor, therefore for what appears it might have been always in Tenancy; and though a Prescription to a modus by the Lord, for himself and all his Tenants is good, Cro. Eliz. 599. because it might have a lawful beginning, for the Lands at first might be all in his Hands before it was a Manor, and so much paid for the Tithes thereof, yet such a Prescription by a Tenant is not good. 3. He hath alleged payment to the Prior, and afterwards to the King, and so would infer a Modus, to which he hath not positively prescribed, but by an old Deed upon payment of 5 s. to all those whose Estates, etc. And this will not do, for unless the Modus doth go to the person who by Law ought to have Tithes, or unless it be for his benefit, 'tis not good; as where it was alleged that he ought to be discharged, because time out of memory he employed all the profits of the Land for the Repairs of the Body of the Church, and to find necessaries, etc. this was not a good Modus, 1 Roll. Abr. 649 placito 8. because 'tis no recompense for the Parson. But it was said by Saunders for the Plaintiff in the Prohibition, That by the Suggestion there was a good Title alleged to be discharged of Tithes; for 'tis set forth that the Prior had a portion of Tithes, and the Lands simul & semel, and being a Corporation they might prescribe for Tithes in prender, and the Tithes being well in them, they may well grant it to Fitzherbert paying 5 s. and constant payment being alleged ever since, 'tis a good Title. As to the Deed, 'tis true, 'tis dated before the time of Memory; but yet 'tis pleadable because 'tis a private Deed, and so need not be allowed in Eyre or in Courts of Record; for such as are not to be pleaded unless allowed there, are only Grants of Franchises and Liberties from the King, but the confession of the Deed to be beyond Memory, and the constant payment of 5 s. is a sufficient title to the Plaintiff if the Deed is not pleadable, and if it is, then 'tis a good discharge that way. And as to the Objection, that the Modus is payable to a wrong person; there are many such which are not paid to the Parson of the Parish, but to Laymen: But in this Case it doth appear that there was a Modus in the Prior, which being received till it came to the Crown, 'tis good although now paid to others; so that for that reason the Spiritual Court ought to be prohibited, and of that Opinion was all the Court; for if a Modus be payable to him, who hath the Right of the Tithes, though it be not to the Parson of the Parish, 'tis well enough, especially where the Plaintiff (as here) allegeth it to be Portio Decimarum belonging to the Prior, so that it cannot be said that the Parson hath not quid pro quo; for he had nothing at first. This Composition was made with the Prior, and the Plaintiff is only to show payment to him, and to those who have his Right. And as to the date of the Deed, 'tis pleadable though time out of memory, because 'tis a private Deed; but Grants of Franchises and Liberties must be allowed in Eyre; and so is my Lord Rolls to be understood in his Abridgement; Whereupon judgement was affirmed. FINIS. A TABLE of the Principal Matters contained in these REPORTS. A. Abatement. WHERE it shall be taken in Bar, 64, 65 Action on the Case. Where two matters are laid in two Counties, the Action may be brought in either by Pleading, 23 Process is directed to six Coroners, one of them commits a Tort, the Action lies against all of them, 23, 24 It lies for an Acquittal upon an Indictment for a Trespass, 52, 306 It lies for these Words, viz. I dealt not so unkindly with you, when you stole my Corn, 58 It doth not lie against the Sheriff for returning a Cepi Corpus & paratum habeo, though the Party doth not appear, 85, 86 Action. Misconceived by the Plaintiff, and a Verdict against him no bar to a new Action, 294 Accord. Where 'tis pleaded it must be averred to be executed in all points, 44 Account. After 'tis stated an Insimul computasset, and not Indebitatus Assumpsit, doth lie, 44 Acquittal. After an Acquittal for a Trespass an Action on the Case will lie, 306 Act. Who is to do the first Act, 76, 203 Act of God, of the Party, and of a Stranger, where it excuses the Obligee, 204 Act of Parliament. Affirmative words therein, where they shall have the force of a negative, 40 Where it restores the Common Law 'tis to be taken favourably, 73 Private Acts must be taken strictly, 57, 71 Administration Of a Chose en Action of a Feme Covert whether grantable to the Husband, or to be distributed amongst the Kindred, 20 Pleaded without saying loci istius Ordinarius, and held good, 65 Where an Executrix dies before Probate, it shall be committed to the next of Kin of the Testator, 101 It cannot be granted where there is an Executor, 149 Where 'tis committed to the Debtee in Execution how she shall be discharged, 315 Administrator sells the Term, an Executor appears, who refuses, yet the Vendee of the Term hath no Title, 148, 149 Amerciament. Must be made upon the Sheriff, if Defendant doth not appear at the Return of the Writ, 84 Amendment. Not allowed after Issue joined, 144 Arrest. In the Palace Yard, sitting the Court, the Officer was committed and the Party discharged upon Common Bail, 181 Assignee. Of a Devisee is not an Assignee to take where Rent is reserved to a Man and his Assigns, 93 Audita Querela. Upon the Act of Indemnity and Judgement for the Plaintiff, 37 Where it lieth, 49 Assumpsit. Where there are mutual Promises and where not, 33, 34 Where one Promise may be pleaded in discharge of another, 44 Promise before a Breach may be discharged by Parol, ibid. Assurance. Condition to pay Money upon making such assurance, Payment is pleaded, but doth not say when assurance made, not good, 33 Avowry. For taking of a Herriot (tempore quo) being left out, and yet good, 4, 5 Averment Vide Consideration. Where it need not be of a sufficiency of a Common in the Plea, 276 Avoidance. Grant thereof by a Chapter doth not bind the Successor, 56 Where there is an Agreement between three for a Presentation by turns, a Grant of the next Avoidance by one, though the Church be full, is good, 97 Authority. Where to be pursued, 79 How it differs from an Interest, ibid. Where 'tis coupled with an Interest 'tis assignable, 318 Acts done by one in reputed Authority are favoured by Law, 194 Award. Pleaded under Hand, and not under Seal, not good, 77, 78 An Umpire was chosen after the day in the Submission who made an Award, and good, 169, 170 That all Suits shall cease, it amounts to a Release, 227, 228 One may submit for another, and good, 228 Of a lesser Sum in satisfaction of a greater, good, 303, 304 A thing awarded not in the Submismission 'tis void, and the Award good, 309 Submission of a particular difference and a general Release awarded, if no other Controversy, 'tis good, 309 Of all differences till such a day, and a Release awarded to be given of all ten days after, if no more Controversies do appear within that time, 'tis good, ibid. B. Bail Vide fol. 28. ARE liable though the Principal is in Execution, 312 Action on the Case lieth against the Sheriff for refusing of Bail, 31, 32 It is not to be allowed in a Scandalum Magnatum, 215 Barr. Where the Plaintiff misconceived his Action, it shall be no bar to a new one, 294, 319 Baron and Feme. Where they shall join in an Action of Assault, 66 How she may make a Will with her Husband's assent, 170 Where the Agreement of her Husband is good before Marriage, 172 How he must show his disassent after her death, ibid. If he once assent he cannot afterwards disagree, ibid. What Acts amount to testify his Consent, and what his Disagreement, 172, 173 Where he shall bring the Action alone upon a Covenant made to both, 217 When the Action, if not discharged, shall survive to her, they must both join, 269, 270 Whether he shall make distribution of the Estate of his Wife dying intestate, 20, 21, 22 He makes a Will and his Wife Executrix, she dies before Probate, Administration shall be to the next of the Kin of the Husband, 101 Bond. Where one may be given in discharge of another, 136, 137 With an insensible Condition the Bond is good, and the Condition void, 285 To render himself a Prisoner, or pay the Money in behalf of a third person, good, 304, 305 Breach. Where 'tis assigned according to the words of the Covenant, and good, 139 Cannot be assigned upon a Proviso, but upon an express Covenant, 37 C. Carrier. JUstification for that he was rob, the Plea is ill in Substance, 270, 271 Church. Prescription to have an Isle therein, no good Cause for a Prohibition, 283 Bishop cannot appoint Commissioners to rate a Parish for repair of a Church, 8 How a Rate shall be made for the the building thereof, 222 Common and Commoner. Where a Licence from the Lord is pleaded to a Surcharge, you must allege that there is sufficient Common besides, 6, 7 May abate Hedges made upon his Commom, 65, 66 Where it must be for Cattle Levant and Couchant, 185 Where he justified by a Plea amounting to the general Issue, and held good, 274, 275 Tenants in Common. Need not join in an Action of Waste, 61 Must join in the personalty, 62 Common Pleas Court. Cannot grant a Habeas Corpus in criminal Causes, 198 Cannot take Sureties for the good Behaviour, ibid. Condition. Precedent, what words will amount to it, 33, 34 Paying and performing make not a Condition, 34, 35 Where the Acceptance of a collateral thing by the Obligee shall be a good performance of the Condition, 137 Disjunctive Condition, the power of election is in the Obligee 200, 303 Where 'tis with a Penalty the power of election is in the Obligor, 200 All Conditions with a Penalty are made in favour of the Obligor, ibid. Where 'tis dispensed withal by the Act of God and of the Party, 201 Where the Obligee had dispensed with one part of the Condition, the other is discharged, 202 To make such a Conveyance as the Council of the Obligee shall direct, if he refuse the Obligor may procure the Conveyance to be made, 203, 204 Of a Bond where 'tis not performed by the return of a Ship 267 To do a thing to a Stranger, where it ought to be performed, 309 What words make a Condition and not a Covenant, and e contra, 35, 75, 76 Continuando. A Trespass longer than he can prove, Damages shall be recovered for what he can prove before, 253 Consideration. In a Grant not repugnant to a former may be averred, 250 Conveyance. At Common Law there must be an actual Entry to make it good, otherwise upon the Statute of Uses, 251 Where several things make but one Conveyance, 233 Construction. Shall not be made to work a wrong, 116 Copyhold. A Covenant that he shall enjoy it for one year, & sic de anno in annum amounts to a Lease to make a Forfeiture, 81 If he refuse to pay the Fine, having probable cause so to do, the Lord cannot bring his Ejectment for a Forfeiture, 229 Costs. Allowed for disturbing the Plaintiff in his Common, though it be in the nature of a Trespass, 141, 142 Covenant. Where it lies in the personalty tho' the Grant be executed by the Statute of Uses, which makes a distress the proper Remedy, 138, 139 The words paying and performing make a Covenant and not a Condition, 35, 91, 92 Where a Breach shall be assigned upon it, but not on a Proviso, 36, 37 Where they are mutual, and where not, 74, 75, 76 The words povisum & agreatum est make a Covenant, 77 Where the word Covenant shall amount to an Agreement and where to a Lease, 80 It is intended to levy a Fine, whether this is a Covenant or not, 89, 90 What Agreement under Hand and Seal will amount to a Covenant, 89 Assignee, Covenant lies against him after assignment 139, Covenant to stand seized, how it differs from a Feoffment to Uses, 208, 209 Habens legale jus & titulum, need not show what Title the disturber had after Verdict, 213 In a Bond to pay 40 l. when an Account is stated by two Attorneys to be chosen between the Parties, 'tis a Covenant and not a solvendum, 266 Breach is assigned relating to three Covenants, and concludes sic Conventionem fregit, 'tis good, 311 Where an Agreement to pay will amount to a Covenant, 269 Covenants reciprocal cannot be pleaded in bar to each other, 34, 75, 76, 309 Breach where assigned and not necessary to aver performance on the part of the Plaintiff, 309 Court. Inferior, the cause of Action must arise within the Jurisdiction, 30 Judgement therein arrested, because the Damages were laid to 30 l. 101, 102 For not saying that the Jurors were electi ad triand ', 102 Taliter processum fuit, and the proceed not set forth at large, well enough in a Plea, but not in a Writ of Error, 102, 195 Vi & armis & contra pacem, whether good or not, 102 Cannot hold Plea for work done without the Jurisdiction, though the Promise be made within, 141 Cause of Action must appear to be within the Jurisdiction to oust the Courts above, 197 Where it doth not appear that the Court was held either by Grant or Prescription, good, 197, 198 If the cause of Action doth not appear to be within the Jurisdiction, though there is a Judgement recovered below, yet an Action of Trespass will lie, and false Imprisonment upon the taking out of that Judgement, 197 If upon Evidence it appear that the cause of Action did arise extra Jurisdictionem, the Plaintiff must be nonsuit, 273 If Jurisdiction be admitted in pleading, and Verdict and Judgement thereon, 'tis too late for a Prohibition, Ibid. Court Ecclesiastical. In what Case a Bishop shall administer an Oath in Temporal Matters, 118 Custom. One cannot be pleaded in bar to another, 105 In pleading it must be strictly alleged, 41 Where 'tis a reasonable Custom for the Lord to have derelict Lands 107 D. Day, Vide Plea. WHere 'tis excluded (being alleged in the Declaration) it makes the Plea ill, 146 'Tis but punctum temporis and of no consideration in the Law, 281 Release of all demands usque 26 April, a Bond dated that day is not released, 281 Debt. Upon the Sheriff's Bond will be good, though the Statute be not pleaded, 36 Will lie upon the Contract, where the whole Term is assigned, 174, 175, 176 Whether it will lie for a Fine set by a Steward, for 'tis ex quasi contractu, 230 It must be upon the Contract, or ex quasi contractu, 262 Deed. Where 'tis lost the Party must make Oath of it to entitle himself to a Bill in Equity to have it performed in Specie, 173 Demand. Must be made where an Interest is to be determined, 264 Devise. To a Man and his Heirs, if the Devisee die in the Life time of the Devisor, his Heir takes nothing, 313 Republication makes it a new Will, ibid. To the Heir at Law makes a Limitation, and not a Condition, 7 To an Infant in ventre sa mere, if there is a sufficient description of him 'tis good, 9 Where the word paying makes a Fee, where not, 26 To him till he be of Age, then to him in Fee; he died within Age, yet a freehold vested in him presently, 289 To him in Fee when of Age, if he die before, then to the Heirs of the Body of R. and their Heirs, he died living R. within Age, his Sister and Heir shall take by way of Executory devise 289 Executory devise, how it differs from a contingent Remainder at Common Law, ibid. Construction of words therein, 290 Departure. From his Plea, 31 Disability. By a Statute where it ought to be removed by the Party to enable himself to execute an Office, 299 Discharge. By Parol good, before the breach of promise, but not afterwards, 259 Discontinuance. Where amendable, 316 In pleading, the Plaintiff declared of taking several things, the Defenant justifies as to part, and saith nothing of the residue, 259 In the Adjournment of a Court, where a day certain is not given, 59 Distress. Cannot be of Sheaves of Corn in Shocks for Rent, 61 Distribution. Shall be equally made amongst the Children of the whole and half Blood, 204, 205, 206 Disturbance. Coactus fuit to pay is a sufficient Disturbance, 55 E. Escape. THE Plaintiff declared upon Process in an Inferior Court, and the Bond was not made infra Jurisdictionem, the Action would not lie, 29, 30 Debt thereon lies against the Warden of the Fleet as Superior, where the Grantee for Life is insufficient, 119 After an Escape, the Plaintiff may have a Capias ad satisfaciendum or Scire facias at his Election, 136 Whether it will lie against the Sheriff for taking insufficient Bail, 181 Election. In disjunctive Conditions where the Election is in the Obligor, 201, 304 'Tis at the Plaintiffs Election to have a Ca Sa. or Scire facias after an Escape, 136 Enclosure. Where a Custom is good to Enclose in a Common Field, 105 Entry. Not necessary to avoid an Estate in case of a Limitation, 7 Error. Where a Writ of Error will lie upon a Fine in the Old Bailie, 219 Error in Fact cannot be assigned in the Exchequer-Chamber, 194 If one be dead after the Judgement, he must be named in a Writ of Error, 285 Where a Judgement shall be avoided by a Plea without a Writ of Error, 276 Estate. Where the word Body makes an Estate for Life and no Tail, 16 Estoppel. Good by a Fine levied by a Remainder man in Tail, 90 No Uses can be declared of a Fine by Estoppel, 90 One who has no Estate levies a Fine, 'tis good by Estoppel, 115 Evidence. A Decree in Chancery, or Sentence in in the Ecclesiastical Court, read as Evidence of the fact, 231, 232 Excuse. If one Man doth not perform his Covenant, 'tis no Excuse for the breach on the other side, 75, 76 What is a good Plea by way of Excuse, and what not, 27, 28, 29 Executor. De son tort cannot retain, 51 Where the Judgement shall be de bonis Testatoris, 108 What is requisite to make an Executor, 147 What must be done when he refuseth, Ibid. De son tort where he may be of a Term, but not of a Term in futuro, because he cannot enter, 175 Cannot plead non detinet where the Testator could not plead nil debet, 266 Executor of an Executor de son tort, where not liable at Law, 293, 294, Where he pleads a Judgement kept on Foot by fraud, 36 Explain. A Man grants Tenementa praedicta, then follows & totum & quicquid habet, whether these subsequent words shall explain or enlarge the Grant, 112, 113, etc. Execution. Payment of the Money to the Marshal, the Defendant may be taken again in Execution, at the Suit of the Plaintiff, 212, 213 Executory Decree. Is of no force in Equity, 232 Existen. Where 'tis good without the word tunc, where not, 129 Of words where the Pronoun pro makes the Contract conditional, 33, 34 F. Factor. WHere he cannot sell but for ready Money, 100, 101 Factum valet quod fieri non debet, 194 Failure. Of Record certified, 246 Feoffment. To Uses, the Estate is executed presently, 208, 209 Fine. Of Lands in a Lieu conus good, 49 In a Scire facias to have such Fine excuted the Vill must be named, 48 Good by Estoppel levied by a Remainder man in Tail, 90 No Uses can be declared of such Fine, ibid. Fine sur concessit the nature and effect of it, 110, 111, 112 By such a Fine nothing shall pass but what lawfully may, 111 Fines shall work a disseisin where they can have no other interpretation, 112 Fines in Criminal Cases must be with Salvo contenemento, 150 Flotsam. Where it shall be sued for at Common Law, and not in the Admiralty, 294 Forbearance. And doth not say from the making of the promise hucusque, held good, 24 Formedon. In Descender, the difference in pleading between that and a Formedon in Remainder or Reverter, 94, 25 Fraction. Where an Estate shall pass by Fractions, where not, 114, 115 G. Gaming. WHat Acts amount to make it penal within the Statute, 54 Not within the Statute, where the Security is given to a third person, 279 Grant of the King. Where a false recital shall not make it void, 2, 3 Where the first description is full, the misrecital afterwards shall not make it void, 2, 3, 4, He may grant what he hath not in possession, 107 Where words shall be rejected rather than his Grant shall be void, ibid. Where an Advowson passeth though not named 2 Where a thing will pass by general words, ibid. Misrecital, where it doth not concern his Title shall not make the Grant void, 2, 3 Grant of a common Person. Of the next Avoidance, where it shall not bind the Successor, 56 Must be taken according to usual and common intendment, 193 Grant, where the word in a Deed will make a thing pass by way of Use, 253 Guardian. In Socage where a doubt is of his sufficiency, he may be compelled to give Security, 177 H. Harmless, vide Condition. COndition to save harmless, the Plea indempnem conservavit generally, is not good, 240, 305 Habeas Corpus. Cannot be granted by the Court of Common Pleas in Criminal Cases, 198, 199, 306 Heir. Where he takes by the Will with a Charge, he comes in by Purchase, and not by Descent, and the Lands shall not be Assets, 286 Where a general Replication to Riens per descent is good, 50, 51 Where he shall have a thing though not named, 93 Horse de son Fee. When to be pleaded, 103 I. jeofails. THE Statute of 16 and 17 Car. 2. helps a misrecital in a proper County, but not where the County is mistaken, 24 An immaterial Issue not arising from the matter is not helped after a Verdict, 137 Inducement. Not such certainty required, as in other Cases, 70 Indebitatus Assumpsit. Where it will not lie for want of Privity, 262, 263 Imparlance. Tout temps priest not good after an Imparlance, 62 Implication. Where a Man shall have an Estate for Life by Implication, 208 Imprisonment. False Imprisonment will not lie against a Judge for committing of a Jury Man for finding against Evidence, 218 It lies not against an Officer for refusing Bail; but a special Action on the Case lies against the Sheriff for it, 32 Information. Upon the Statute of Philip and Mary for taking away a Maid unmarried within the Age of sixteen years, 128 It will not lie where the Punishment is executed by the Statute, 302 Infant. When he may make a Will, 315 Interest. Where 'tis vested in the King, 53 Where it differs from an Authority, 79 What words give an Interest, 80, 81 Where the word Interest signifies the Estate in the Land, 134 Intention. Of the Parties, where to be considered, 76, 77, 80, 111, 116, 234, 280, 281, 310 Where a thing shall be intended, and where not, 227, 280, 282 Grants where they shall be taken according to common intendment, 193 joynder in Action. Covenant to two not to do a thing without their consent, one may bring the Action, 82 Issue. Where Time shall be made parcel of the Issue, 145 judge and judgement. Judge cannot fine a Jury for finding against Evidence, 218 Action will not lie against him for what he doth judicially though erroneously, 221 Judgement may be avoided by Plea without a Writ of Error, 308 justification Vide Pleading. Where 'tis local you must traverse both before and after, 68 Under a Lease for the Life of another Man, and doth not aver that the Life is in being, ill, 93 Where 'tis not local a Traverse makes the Plea naught, 270, 271 By virtue of a particular Estate you must show the commencement of it, 70 Where it is general and yet good, 144 In Assault, Battery and Wounding, and saith nothing to the Wounding, not good, 167 Of a Servant by Command of his Master, and good, ibid. In Assault, Battery and Imprisonment for 11 l. 10 s. the Defendant justifies by a Warrant for the 11 l. and saith nothing of the 10 s. not good upon Demurrer, 177 Where 'tis but of part the general words Quoad residuum transgressionis will not supply the rest, 259 K. King. THE Defendant cannot justify in a Scandalum Magnatum brought upon the Statute of R. 2. because the King is a Party, tam pro Domino Rege quam pro seipso, 166 Where his Title is not precedent to that of the Tertenant, the Lands of his Receiver shall not be charged by the Statute of 13 Eliz. 247, 248 Difference between the Case of the King and of a common person, 263 A person disabled by Outlary may sue for him, but not for himself, 267 Where an Interest is vested in him it shall not be divested by a general Pardon, 53 L. Lease. BY a Bishop, and more than the old Rent reserved, good, 57 Where it shall be made by the words Covenant, Grant and Agree, and where not, 80, 81 Lessee for years assigns over his whole Term, whether Debt will lie on the Contract or not, 174, 175 Liberties. What is meant by the Word, 48 Limitation of Action. Extends to Indebitatus Assumpsit, though not named in the enacting Clause, 71, 72, 73 Statute no Bar where the Sheriff levied Goods by a Fieri Facias, and did not pay the Money within nine years, 212 Doth not extend to an Action on the Case, Indebitatus Assumsit, Quantum meruit, and Insimul computasset, 311, 312 Limitation of Estate. What are good words to take by Purchase from a Stranger, 210, 211 Limitation of Estate when void makes the Estate absolute, 227 Livery. Secundum formam Chartae, where good or not, 78, 79 M. Manor. WHere a thing becomes in gross it can never after be united to it, 144 What may be appurtenant to it, ibid. N. Negative. Word's must be in an Act of Parliament to restrain the power of the Courts at Westminster, 128 Negative pregnant, 138 Negative Plea that three did not such a thing, it must be said, nec eorum aliquis, 284, 285 Non Obstante. Where it makes a Grant good, 107 Where a general Non obstante will not dispense with a particular Statute, 261 Notice. Where the Agreement is that it shall be in writing, it must be so pleaded, 268 Where 'tis made to the Testator alone it shall not be personal, but is good if given to the Executor, 268, 269 O. Oath. EX Officio lawful, 118 Where it ought to be made of the loss of a Deed, to entitle a Man to a Bill in Equity, 173 Office and Officer. Grant thereof to two and the Survivor, one surrenders, and another is admitted, the benefit of Survivorship is gone, 95, 96 Of the Warden of the Fleet not to be granted for years, 120 Where a person recomended proves insufficient the recommender shall be liable, 121 In an Office of Trust there shall be no Survivorship, 260 Officer excusable for executing an erroneous Process, 196 Ordinary. When his Power began, 148 Outlary. Pleaded in Disability to an Information and good, 267, 268 Where it needed not to be pleaded sub pede sigilli being in the same Court, 267 P. Parish. HOW it differs from a Vill, 237 Pardon. Where nothing vests but by Office found, a Pardon restores the Party, 53 Where the thing itself is pardoned, and the consequence not, 52 Parliament. Where the time of the Session is misrecited, and yet good, 241 Where the Court ought to take notice of the commencement of a private or general Act, 241 Difference between an Adjournment and a Prorogation, 242 Partners. The Action cannot be brought against one without setting forth the death of the other, 280 If Judgement be against one the Goods of the other may be taken in Execution, ibid. Paying. In the Case of an Heir is not a Condition, but a Limitation, 286 Place. Where it shall be intended, not being laid in the plead, 304 Pleas and Pleading. What the Parties have admitted in pleading, shall be good, though the Jury find otherwise, 5 Shall not afterwards be assigned for Error, 193, 194 Pleading of a Grant of a Reversion without hic in Curia prolat ' whether good or not, 19 In Dower that the Demandant ought to have Judgement de tertia, and doth not say part, and yet good, 17, 18, 19 Award nullum fecerunt arbitrium de praemissis whether good without adding nec de aliqua parte, 27, 28, 29 Plea to a Bond not good, 33 A Judgement ultra quod, not Assets where good, 36 Estoppel, you must rely upon it, and not conclude with a Traverse, 37 38 One promise in discharge of another, where good or not, 43, 44 Of an accord in must be averred to be executed in all points, 43 Replication where the Heir pleads a Settlement in Tail, and a Lease for 99 years, and that he had not Assets praeter the Reversion, a general Replication of Assets is good, because the praeter is idle, 50, 51 Justification in Trespass for taking corrupt Victuals held good, 56 Justification by Arrest upon process out of an Inferior Court, 58, 59 Justification by the Defendant where he must show the Commencement of his Estate or not, 70, 71 Where 'tis incertain, 76 Touts temps priest not good after Imparlance, 62 Profert hic in Curia, where it must be pleaded formally, 77, 78 It must be pleaded when the Title is by Deed either as party or privy, 64 De injuria propria sua where a Servant is Defendant 'tis good without a Traverse, 68 Plea where 'tis naught with a Traverse, ibid. Where the Defendant may plead any thing which amounts to a performance, 139 Where the Defendant was charged with receiving 80 Pigs of Lead, and he saith, that he was not Receiver, but omits aliquam partem inde, the Plea was ill, 146 Hoc paratus est verificare, where good or not, ibid. The Defednant was charged as Bailiff 1 Martii he saith, he was not from the 1st of March, and so excludes the day, 146 In Covenant for not Repairing, the Defendant pleads recuperavit generally, and held good after Verdict, 176 Affirmative Plea ought to be particular, as if the Defendant pleads a Conveyance made he must show what, 239 Of another Action depending for the same Cause in another Court, 246 Where good though it amounts to the general Issue, 274, 275, 276, 277, 278 Argumentative Plea, where good, 276 Negative Plea, viz. that three did not such a thing, the Defendant must say, nec eorum aliquis, 284 Otherwise in an affirmative Plea, ibid. Plea puis darrein Continuance must be certified as part of the Record of Nisi Prius, 307 Non damnificatus generally no good Plea where the person and Lands are to be indemnified, 305 Where a Judgement shall be avoided by a Plea without bringing of a Writ of Error the party being a Stranger to it, 308 Prescription. Not to be pleaded against another without a Traverse of the first, 104 Must be alleged with a Seisin in Fee and not for Life, 318 To a Modus where good, 320 Presentation. The King being entitled by the Simony of the Patron presents, though the Simony be pardoned, the Presentee shall not be removed, 52, 53, 54 Between three by turns, they are Tenants in Common of the Advowson, and one may grant the next Avoidance, the Church being full, 97 How it must be pleaded tempore pacis, 184, 185 Possibility. A Grant made thereof and good, 106, 107 By an Executor before Probate is but a Possibility, and yet good, 108 Privilege. Will not extend to a Case of necessity, 182 Of a Sergeant at Law, 296 Of an Attorney of the King's Bench, 181 Process. Where an Action will not lie against the Defendant for doing a thing in Execution of the Process of Law, 244 Prohibition. To the Bishop's Commission to set Rates upon the Parishioners to repair the Church, 8 Prohibition printed in English and dispersed a Crime fit to be punished, 119 Not granted for a Rate for building of a Church, 222, 223 Where it shall be granted at any time 273 Where a Sentence of Divorce was intended to adnul a Marriage, 314 Upon a Suggestion of Excommunication because he refused to accuse himself, 278 Power. Where 'tis coupled with an Interest, 'tis assignable, 317 Promise. Where they are mutual, the performance need not be averred, 33, 34 Purchase. Where the Heir takes by Purchase the Ancestor must departed with his whole Fee, 208 Where the Heir shall take by Purchase, and where by Descent, 286 Q. Quare Impedit. REal Mainpernors must be returned upon the Summons, Pone and Grand Cape if the disturber do not appear, (and not John Do and Richard Roe,) 264, 265 Que Estate. Where 'tis pleadable, 143, 144 R. Rates. FOR building of a Church shall be set by the Parishioners, 222 Recital. Where a Title is set out by way of Recital and good. 142 Recovery Common. Of Lands in a Liberty passeth Lands in a distinct Vill in the same Liberty though not named, 47, 48, 49 How to be pleaded, 70 When first invented, 132 Parish and Vill within the Parish of the same name, a Recovery is suffered of Land in the Vill without naming the Parish, but the Parish is named in the Indenture to lead the Uses, they make but one Conveyance, and the Lands in the Parish pass, 233, 234 Rectory. Tithes thereof shall not be sequestered for repairing of the Chancel, 254 Refusal Vide Request. Relation. Where it shall be allowed to make a thing good, and where not, 148, 149 Release. By an Executor before probate, where good and where not, 108 Not good where the Party had only an inception of Right, ibid. Of all Demands to the 26th of April, a Bond dated that day is not released, 281 Where it shall discharge a Rent afterwards due, and where not, 282 Remedy. Where a thing is in the same mischief 'tis within the same remedy, 72 Reputed Lands shall pass by general words, 69 Repleader. Shall be after an immaterial Issue, 139, 140 Reparavit generally & de hoc ponit se super patriam, good after Verdict, 176 Replevin. Both are Actors, 199 Where Non cepit generally is a good Plea, and where not, ibid. Request. Where a thing is to be done upon Request within six Months, or Money to be paid, if the Request be not made within the time, 'tis a dispensation of one part of the Condition, and the Law doth discharge the other part, 203 What shall be a refusal in Law, what not, 74, 75 Reservation. Of Rent to him, his Executors and Assigns, the Heir shall not have it, 93 Of a Pepper Corn, a good consideration to raise an Use, 249 Restrictive words what shall be so construed in a Fine, 115, 116 Reversion. A Fine thereof executed by the Attornment of the Lessee for years, 117 S. Scandalum Magnatum. ACtion thereon, 98 Visne not to be changed therein, 216 Servant. Where he shall plead his Master's Command, 68 Where he may justify by the Command of his Master, 67 Where he shall not be charged in Trover for taking by the Command of his Master, 242 Where a delivery of Goods to him is a delivery to the Master, 309 Sequestration. Out of Chancery whether pleadable to an Action of Trespass at the Common Law, 255, 256 Of Tithes of a Rectory cannot be for Repairs of the Chancel, 254, 255, 256, 257, 258, 259 Sheriff. Case doth not lie against him for returning Cepi Corpus & paratum habeo, though the party doth not appear, 83, 84, 85, 86 Escape doth not lie against him where he takes Bail though not sufficient, 177 Sergeant at Law. Whether he have the privilege of being sued in the Common Pleas, and no where else, 296 Statutes. Of England, where they extend to Barbadoes, 45, 46, 47 Where there are no negative words in it, the Authority of the King's Bench is not abridged, 129 Where there is a prohibitory Clause in it the Party is not confined to the manner therein expressed, otherwise upon a Clause giving a penalty, 128 Contra formam Statut extends to more than one Statute, 129 Statute of 5 Eliz. Action lies thereon in the Courts of Westminster, 246 Statute of 13 Eliz. hath a retrospect to charge the Receivers Lands for a Debt due to the King, 248 Where the Conclusion ought to be contra formam Statuti, 301 If an Offence be at the Common Law for which a Penalty is given by the Statute, you may proceed either at Law or upon the Statute, 301 A Statute being a general Law need not be recited, 99 If recited false, and there is enough to maintain the Action, which is true, 'tis well enough, ibid. Substance. Where 'tis found it makes the Issue good, 5, 6, 179 Superior respondeat, where this Rule is to be admitted, 120, 121 Supersedeas. Must be delivered by the old Sheriff to the new one, 217 Surrender. To a Disseisor to the use of another who is admitted and good, because the Admittee is not in under the Disseisor, but the Surrenderor, 287 Such a Surrender to the Disseisor, ut faciat voluntatem, quaere if good, 288 T. Tail. FOrfeited for Treason, 132, 135 No such Estate at the Common Law, 131 It was created by the Statute de donis, 134 Time. Ought not to be made parcel of the Issue, 145, 184 What shall be said time out of Memory, 320 The six Months shall be computed according to the Calendar, 58 Tithes. Shall not be paid for Brick, 77 Nor for Pigeons, ibid. Prescription by a Lay Man in modo decimandi, good, but not in non decimando, 321 Whether a Layman may prescribe for them in prender or not, 321 Title. What shall be accounted a buying a pretended Title within the Statute, what not, 67 Toll. How many sorts there are, 143 Travers. Where 'tis immaterial and where not, 19, 67, 68 Where 'tis naught, 46, 55 Where it need not to be made, there being sufficient matter pleaded before to avoid the Title, 60 Where 'tis necessary and omitted 'tis substance and makes the Pleading ill, 60 Where 'tis good, 85 One Prescription being contrary to another, the first must be traversed, 104, 105 Where the Charge in the Declaration is not fully answered, there must be a Traverse, as the Defendant being sued as Executor, who pleaded, that another was Executor and Superstes, 168 Travers upon a Travers where it shall be, and where not, 183 Where it shall not be of a Sheriffs Return, 10, 11 Absque hoc, quod legitimo modo oneratus no good Traverse, 54, 55 Trespass. Recovery therein where it shall be a good bar in Trover, 318, 319 Trial. No new Trial allowed in an Action of Scandalum Magnatum, 150 New Trial granted by the direction of a Judge, 199, 200 Trover. Where it may be brought upon a possession in Law, as by an Executor, 168 It will lie though the Possession be changed before the Action brought 243 Where the conversion ought to be found, demand and refusal will not make a conversion, 244 Trust. Decree in Chancery to enforce the execution of a Trust, 88 V. Variance. BEtween the finding and the pleading, if it be not substance doth not hurt, 5 Between the Record as pleaded, and the Record itself, 246 Between the Covenant and the Declaration, 269 If an Action be brought against three, and a nolle prosequi entered as to one, and a Writ of Enquiry against the rest, whether they must not all be named in the Writ, 284 In Debt upon simple contract, the least variance is fatal, 6 Between the two Actions a Recovery in one cannot be pleaded in bar of the other, 42, 43 Verdict. Where it shall cure a bad Declaration, 66, 213 Where it helps the misrecital of an Act of Parliament, 241 Videlicet, where it shall be transposed to support an Action, 98, 99 Visne. Not to be changed in a Scandalum Magnatum, 216 Where it shall be intended, though not laid in the pleading, 304 Victuals, Justification of a Trespass, for that they were corrupt, 56 Unity of Possession. Where it doth not destroy a Right of Common, 277 Usage. Where it shall not intent a Right, it may be Evidence of a Right, 278 Use. Where a Man shall take by way of springing Use, 208 Uses not favoured in the Law, 210 How they came first into Conveyances, 251 Use may be raised by the reservation of a Pepper Corn to make a Tenant to the Praecipe, 249, 250 Where the Statute of 27 H. 8. creates an Use till a future Use cometh in esse, 208 Usury. The Contract itself must be Usurious to make the Security void, 307 W. Wales. EXecution shall go thither upon a Judgement obtained in the Courts at Westminster, 11 Wager of Law. Where Compurgators shall be required, 140, 141 Ward. Cannot be where the Infant is in by Purchase, and not by a Descent, 176, 177 Warden of the Fleet. How far his Limits extend, 221 Warranty. Where it shall descend and bar the Issue, 109, 110, etc. Where a Fine sur concessit shall displace an Estate and turn it to a Right, and the Collateral Warranty bar the Heir, 110 Voucher and Rebutter are incident to it, 14 Waste. Brought by one Tenant in Common alone, and good, 61, 62 Will. Judgement given upon the Construction of the words therein, 223, 224 Where the Republication makes it a new Will, 313 Ecclesiastical Court the proper place for the determination when a person is capable of making a Will, 315 Words. Of doubtful signification shall not be construed to work a wrong, 116 Where the Pronoun illa doth restrain former words, 106, 107 Vsque is exclusive in Pleading, 280 Words are to be taken in a common and ordinary understanding, 183, 187 Words where they are made actionable by averment of Damages, 150 Words in an Act of Parliament are to be taken in a common meaning, 183, 187 Wrong. No construction shall be made to work a wrong, 80 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 Payton Ventris Knight, late one of the Justices of the Common Pleas, in Two Parts. The first Part containing Select Cases Adjudged in the King's Bench, in the Reign of King Charles the II. With three Learned Arguments, one in the King's Bench by Sir Francis North, and two in the Exchequer by Sir Matthew Hale when Lord Chief Baron. 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