REPORTS
,
Easter-Term
,
15ᵒ
CAROLI
,
In
the
Kings
Bench.
IT
was
agreed
by
Justice
Iones
and
Justice
Barckley
(
the
Lord
Chief
Justice
and
Justice
Crook
being
absent
)
That
if
the
Sheriff
do
arrest
a
man
upon
mesne
processe
,
and
return
a
Cepi
corpus
,
and
that
the
Defendant
was
rescued
;
that
no
Action
lieth
against
the
Sheriff
:
But
if
the
party
be
taken
upon
an
Execution
,
an
Action
upon
the
Case
lieth
against
him
;
and
so
is
the
express
Book
of
16
E.
4.
2
,
3.
Br.
Escape
37.
upon
which
Book
Justice
Iones
said
,
That
it
was
adjudged
in
this
Court
,
as
above
is
said
.
2.
It
was
agreed
by
the
Court
,
That
if
a
man
in
pleading
derive
an
Estate
from
another
man
,
and
doth
not
shew
what
Estate
he
had
from
whom
he
deriveth
his
Estate
,
that
is
a
good
cause
of
Demurrer
.
And
Justice
Iones
said
,
That
if
a
man
claim
a
Rent
by
Grant
out
of
the
Land
of
any
other
man
,
it
is
not
sufficient
for
him
to
say
,
That
such
an
one
was
seised
and
concessit
;
but
he
ought
to
express
of
what
Estate
he
was
seised
:
So
is
Dyer
.
But
in
this
Case
it
was
agreed
,
That
the
shewing
of
what
Estate
,
&c.
ought
to
be
material
to
the
maintenance
and
support
of
the
Estate
which
he
claimeth
,
otherwise
it
is
not
necessary
.
3.
An
Action
upon
the
Case
for
words
,
was
brought
by
one
who
was
Journey-man
and
●ore-man
of
a
Shoomakers-shop
,
which
was
his
living
and
livelihood
,
for
these
words
,
viz.
It
is
no
matter
who
hath
him
,
for
he
will
Cut
him
out
of
doors
.
And
farther
the
Plaintiff
did
aver
,
that
the
common
acceptance
of
these
words
amongst
Shoomakers
,
is
,
That
he
will
begger
his
Master
,
and
make
him
run
away
:
and
shewed
that
he
was
particularly
endamnified
by
speaking
of
those
words
.
And
the
Court
was
clear
of
Opinion
,
that
the
Action
would
lie
.
And
these
Rules
were
taken
and
agreed
.
For
some
words
an
Action
will
lie
without
particular
averment
of
any
damage
;
as
to
call
a
man
Thief
,
Traytor
,
or
the
like
;
these
are
malum
in
se
:
And
some
words
will
not
bear
Action
without
particular
averment
of
some
damage
;
as
to
say
,
Such
a
one
kept
his
wife
basely
,
and
starved
her
;
these
words
of
themselves
will
bear
no
Action
:
but
if
the
party
of
whom
the
words
were
spoken
were
in
election
to
be
married
to
any
other
,
and
by
speaking
of
these
words
is
hindred
;
there
with
such
Averment
they
will
bear
an
Action
.
It
was
farther
agreed
,
That
the
words
ought
to
be
spoken
to
one
that
knows
the
meaning
of
them
,
otherwise
they
are
not
actionable
,
as
in
the
principal
Case
,
they
were
spoken
to
a
Shoomaker
;
but
if
they
had
been
spoken
to
any
other
who
knew
the
meaning
of
them
,
it
had
been
all
one
:
And
therefore
scandalous
words
which
are
spoken
to
one
in
Welsh
,
or
any
other
Language
,
which
the
party
to
whom
they
are
spoken
doth
not
understand
,
are
not
actionable
.
And
it
was
agreed
,
That
some
words
which
are
spoken
,
although
of
themselves
they
are
not
actionable
,
yet
being
equivalent
with
words
which
are
actionable
,
they
will
bear
an
Action
.
And
therefore
it
was
said
by
Justice
Iones
,
That
in
York-shire
(
as
I
remember
)
Straining
of
a
Mare
,
is
as
much
as
Buggering
:
and
because
these
do
amount
to
as
much
,
with
averment
they
will
bear
Action
.
And
all
words
which
touch
a
man
in
his
livelihood
and
profession
will
bear
Action
.
And
the
Opinion
of
the
Court
also
was
,
that
the
Averment
ought
to
be
,
That
in
this
(
and
shew
it
specially
)
the
Plaintiff
was
damnified
:
and
so
it
was
agreed
upon
these
Reasons
,
that
the
Action
did
lie
.
4.
The
Opinion
of
the
Court
was
upon
a
Judgment
given
there
,
there
ought
to
be
two
Scire
facias
,
one
against
the
Principal
,
the
other
against
the
Bail
;
but
one
only
is
sufficient
in
the
Common
Pleas
,
and
that
two
Nichils
returned
do
amount
to
Scire
feci
.
5.
There
was
a
Contract
made
at
Newcastle
,
that
a
ship
should
sail
from
Yarmouth
to
Amsterdam
,
and
there
was
an
Action
of
Debt
brought
upon
the
Contract
at
Newcastle
,
and
it
was
adjudged
that
the
Action
would
not
lie
:
and
the
difference
was
taken
betwixt
a
particular
and
limited
Jurisdiction
,
as
in
this
case
Newcastle
is
;
and
a
general
Jurisdiction
,
as
one
of
the
Courts
at
Westminster
hath
:
for
in
the
first
Case
,
no
particular
Jurisdiction
shall
hold
plea
of
a
thing
which
is
done
in
partibus
transmarinis
,
although
the
Original
(
as
the
Contract
in
the
principal
Case
)
be
made
in
England
;
but
contrary
in
case
of
general
Jurisdiction
,
as
any
the
Courts
at
Westminister
have
.
6.
The
Custome
of
London
is
,
that
any
man
in
London
may
pass
over
,
or
put
over
his
Apprentices
to
any
other
man
within
the
City
.
King
and
Cokes
Case
.
7.
WIlliam
Marshal
,
and
other
Bailiffs
had
an
Execution
(
viz.
a
Capias
ad
satisfaciend
'
)
against
Coke
and
others
;
which
Bailiffs
came
to
Coke's
house
,
and
lay
one
night
in
his
out-houses
privily
;
and
the
next
morning
they
came
to
his
dwelling-house
,
and
gave
him
notice
of
the
Execution
;
but
Coke
shut
the
doors
of
his
house
close
,
so
as
the
Bailiffs
could
not
enter
;
whereupon
they
brake
the
Glass-windows
and
the
Hinge
of
the
door
,
endeavouring
to
enter
:
whereupon
Coke
commanded
them
to
be
gone
,
or
he
would
shoot
them
:
notwithstanding
which
,
they
did
continue
their
ill-doing
;
whereupon
Coke
shot
Marshal
one
of
the
Bailiffs
:
and
whether
this
was
Manslaughter
or
Murder
,
was
the
Question
.
And
Rolls
argued
,
that
it
was
not
Murder
for
these
causes
.
1.
Because
the
act
of
the
Bailiffs
in
breaking
of
the
Glass
and
the
Hinge
of
the
door
was
an
unlawful
act
,
and
was
at
their
p●ril
.
Where
the
Kings
Officer
may
break
the
house
to
serve
any
mean
Process
or
Execution
,
the
differences
are
such
as
are
in
Semaynes
Case
,
C.
5.
part
91
,
92.
1.
betwixt
Real
and
Personal
Actions
:
In
Real
Actions
they
may
break
the
house
to
deliver
seisin
to
him
who
recovereth
;
contrary
in
Personal
Actions
.
2.
There
is
a
difference
in
the
case
of
the
King
,
and
of
a
common
person
;
where
the
King
is
party
,
in
some
cases
his
Officers
may
justifie
the
breaking
of
a
house
,
but
not
in
the
case
of
a
common
person
.
13
E.
4.
9.
18
E.
4.
4.
4
Rep.
4
▪
9
Rep.
69.
And
therefore
if
they
could
not
justifie
the
breaking
of
the
house
at
the
suit
of
a
common
person
;
then
in
the
principal
Case
,
they
did
a
thing
which
was
not
warranted
by
Law
:
and
therefore
the
killing
of
one
of
them
was
not
Murder
.
But
clearly
,
if
the
Bailiffs
had
lawfully
executed
their
Office
,
then
it
had
been
Murder
.
2.
It
was
not
Murder
,
because
the
person
was
in
his
House
,
which
is
his
Castle
and
defence
,
which
is
a
place
priviledged
by
the
Law
.
26.
Ass.
23.
3
E.
3.
330
,
305.
Besides
,
the
party
is
not
bound
to
tarry
till
the
Bailiffs
come
in
and
beat
him
.
2
H.
4.
8.
19
H.
6.
31.
34
H.
6.
16.
43
Ass.
pl
:
31.
3.
This
Authority
which
is
given
to
the
Kings
Officer
,
is
given
by
the
Law
,
and
if
he
execute
it
according
to
the
Law
,
the
Law
will
protect
him
;
but
if
he
exceed
the
priviledge
given
him
by
the
Law
,
then
all
he
doth
is
illegal
,
and
he
loseth
its
protection
.
And
he
resembled
it
to
the
6
Carpenters
case
.
C.
6.
part
.
Farther
,
one
may
pretend
he
hath
such
a
warrant
,
when
he
hath
it
not
,
of
purpose
to
rob
,
or
do
some
other
mischief
.
And
it
was
agreed
by
all
the
Justices
,
nullo
contradicente
,
that
it
was
not
Murder
,
but
that
it
was
Manslaughter
;
for
this
reason
especially
,
because
the
Officer
was
doing
an
unlawful
act
,
not
warranted
by
Law
;
and
therefore
it
was
at
his
peril
if
he
were
killed
.
And
farther
,
upon
this
difference
there
ought
to
be
malice
in
fact
or
in
Law
to
make
Murder
;
but
in
this
Case
there
is
none
of
them
,
for
it
is
apparent
that
there
was
no
malice
in
fact
:
and
there
is
no
malice
implied
,
for
then
it
ought
to
be
where
a
man
kills
another
without
any
provocation
,
or
the
Minister
of
Justice
in
the
due
and
lawful
execution
of
his
Office
,
which
is
not
our
Case
;
for
here
he
did
an
unlawful
act
at
the
time
he
was
killed
;
and
therefore
it
was
not
Murder
,
but
Manslaughter
.
There
was
a
Case
tried
at
the
Sessions
in
the
Old-Baily
,
which
was
thus
:
One
Lovell
had
two
Maid-servants
,
and
one
of
them
without
his
knowledge
,
had
received
into
the
house
a
Chare-woman
,
who
(
all
being
in
their
beds
)
by
her
negligence
let
a
Thief
into
the
house
,
and
afterwards
called
out
Thieves
,
Thieves
;
and
afterwards
Lovell
came
out
of
his
Bed
with
a
Sword
in
his
hand
,
and
the
Chare-woman
calling
to
mind
that
she
was
there
without
his
privity
or
his
wifes
,
hid
her self
behind
the
Dresser
,
and
Lovell's
wife
espying
her
there
,
cried
out
Thieves
,
Thieves
;
for
which
Lovell
came
and
ran
her
into
the
brest
with
his
Sword
.
And
the
Opinion
of
the
Justices
at
the
Old-Baily
,
and
also
of
all
the
Justices
of
the
Kings
Bench
,
was
,
That
it
was
neither
Murder
nor
Manslaughter
:
Not
Murder
,
because
there
was
no
forethought
malice
;
not
Manslaughter
,
because
he
supposed
her
to
be
a
Thief
;
and
if
she
had
been
a
Thief
,
then
it
was
clear
that
it
was
not
Manslaughter
.
8.
It
was
resolved
in
the
Chancery
(
as
the
Judges
of
the
Kings
Bench
said
)
That
where
the
Son
is
of
full
age
,
and
is
ravished
,
that
the
Father
shall
not
recover
Damages
,
because
the
Son
being
of
full
age
might
marry
himself
without
the
consent
of
the
Father
:
and
that
was
the
reason
given
,
as
I
conceive
;
and
the
Case
was
said
to
be
Sir
Francis
Lees
Case
.
9.
The
Book
of
Canons
is
,
that
the
Parson
may
Elect
one
Church-warden
,
and
the
Parishioners
another
.
10.
There
can
be
no
Surrender
without
the
Consent
of
the
Reversioner
.
11.
It
was
Libelled
in
the
Ecclesiastical
Court
for
these
words
,
Thou
art
a
Drunkard
,
or
usest
to
be
drunk
thrice
a
week
.
And
thereupon
Prohibition
was
Prayed
and
Granted
:
and
it
was
said
and
agreed
,
That
so
it
was
adjudged
betwixt
Vinior
and
Vinior
,
in
this
Court
.
The
Case
in
Dyer
,
254.
b.
where
the
Presentee
was
refused
,
because
he
was
a
common
haunter
of
Taverns
,
&c.
was
by
Justice
Barckley
denied
to
be
Law
,
and
so
agreed
by
Justice
Iones
,
the
Lord
Chief
Justice
and
Justice
Crooke
being
absent
:
But
Justice
Barckley
was
utterly
against
the
Prohibition
.
1.
Because
the
Action
in
the
Ecclesiastical
Court
is
only
pro
salute
animae
.
And
2.
Because
that
Drunkenness
is
in
their
Articles
,
and
Presentable
.
But
Justice
Iones
granted
a
Prohibition
,
and
said
that
Linwood
said
well
,
That
if
all
things
which
are
against
the
Law
of
God
(
or
words
to
that
effect
)
should
be
tried
in
the
Ecclesiastical
Court
,
the
Jurisdiction
of
the
Temporal
Court
should
utterly
be
destroyed
.
12.
If
there
be
an
Indictment
of
Forcible
Entry
,
if
it
appear
that
the
Plaintiff
had
seisin
at
the
time
of
the
Writ
brought
,
there
can
be
no
Writ
of
Restitution
;
for
the
Statute
●aith
,
If
he
Enter
with
Force
,
or
keep
him
out
with
Force
:
but
yet
in
that
case
the
King
shall
have
his
Fine
.
And
there
was
an
Indictment
,
which
was
a
principal
Case
at
Bar
,
which
was
,
That
the
Defendant
adtunc
&
adhuc
doth
keep
the
possession
forcibly
,
whereas
the
Plaintiff
was
in
possession
.
And
thereupon
a
Writ
of
Restitution
was
awarded
by
reason
of
the
word
[
adhuc
]
3
E.
4.
19.
it
was
adjudged
,
That
where
there
is
Forcible
Entry
,
and
Reteiner
with
Force
,
that
both
are
punishable
,
although
the
Statute
of
8
H.
6.
9.
be
in
the
disjunctive
.
13.
Descent
of
a
Copy-hold
shall
not
take
away
Entry
.
There
ought
to
be
a
custome
to
enable
the
Lord
of
a
Mannor
to
grant
a
Copy-hold
in
Reversion
.
14.
In
the
Council
of
Marches
of
Wales
,
they
proceed
according
to
Directions
▪
and
they
cannot
exceed
them
;
and
they
〈…〉
with
Freehold
,
for
it
is
not
within
their
〈…〉
.
And
they
cannot
hold
Plea
of
Debt
above
fifty
pound●
.
15.
An
Assignment
of
Rent
to
a
Woman
,
out
of
Land
of
which
she
is
Dowable
by
Word
,
is
good
;
but
if
she
be
not
Dowable
of
the
Land
,
then
the
Assignment
by
Word
is
not
good
,
and
void
;
because
that
in
the
first
Case
it
is
according
to
common
Right
,
but
in
the
last
,
not
.
33
H.
6.
16.
In
a
Writ
of
Error
to
Reverse
a
Judgment
in
an
Action
of
Debt
upon
an
Arbitrament
,
the
Error
assigned
was
this
:
That
two
did
refer
themselves
to
Arbitrament
of
their
two
several
Arbitrators
;
and
there
is
no
word
of
Submission
:
that
the
same
is
Error
,
and
there
was
Error
in
the
Entry
of
the
Judgment
;
the
entry
of
which
was
in
this
manner
;
Consideratum
est
,
and
per
Curiam
is
omitted
and
left
out
.
And
for
these
Errors
,
the
Judgment
was
Reversed
.
Smith's
Case
.
17.
ONe
said
of
him
,
Thou
art
forsworn
,
and
hast
taken
a
false
Oath
at
Hereford
-
Assises
,
against
such
a
one
,
naming
the
party
.
And
the
Opinion
of
the
Court
(
the
Chief
Justice
and
Justice
Crooke
being
absent
)
was
against
the
Action
.
But
they
conceived
that
the
Action
would
have
lied
,
if
the
Defendant
had
said
,
Thou
art
forsworn
,
and
hast
taken
a
false
Oath
at
the
Assises
,
against
such
an
one
,
with
Averment
that
he
was
sworn
in
the
Cause
.
18.
It
was
said
at
the
Bar
,
That
it
was
adjudged
in
this
Court
in
Appletons
Case
,
That
where
a
man
said
unto
another
by
way
of
Interrogatory
,
Where
is
my
Piece
thou
stolest
from
me
?
that
it
was
actionable
.
Justice
Iones
remembred
this
case
,
where
one
said
,
J.
S.
told
me
,
that
J.
N.
stole
a
Horse
,
but
I
do
not
believe
him
.
This
with
Averment
that
I.
S.
did
not
say
any
such
thing
,
would
bear
an
Action
.
Justice
Barkley
said
,
That
an
Action
was
brought
upon
these
words
,
You
are
no
Thief
?
and
that
these
words
with
Averment
,
which
imply
an
affirmative
,
will
bear
an
Action
.
19.
It
was
said
to
a
Merchant
,
That
he
was
a
cousening
Knave
.
And
the
Opinion
of
the
Court
was
,
(
the
chief
Justice
and
Justice
Crooke
being
absent
)
that
the
words
were
not
actionable
,
because
he
doth
not
touch
him
in
his
Profession
,
for
the
words
are
too
general
:
But
it
was
said
,
That
to
call
him
Bankrupt
was
actionable
.
And
mall
Cases
where
a
man
is
touched
in
his
Profession
,
the
words
are
actionable
.
But
to
call
a
Lawyer
a
Bankrupt
,
is
not
actionable
.
Justice
Iones
said
,
that
Serjeant
Heath
brought
an
Action
for
these
words
:
One
said
of
him
,
That
he
had
Vndone
many
;
and
it
was
adjudged
actionable
;
because
he
touched
him
in
his
Profession
.
20.
Kingston
upon
Hull
is
a
Particular
and
Limited
Jurisdiction
,
and
they
held
Plea
of
a
Bond
which
was
made
out
of
their
Jurisdiction
;
and
thereupon
a
Capias
was
awarded
against
the
Obligor
,
who
was
arrested
upon
it
,
and
suffered
by
the
Sheriff
to
escape
:
And
the
Opinion
of
the
Court
was
clear
,
That
no
escape
would
lie
against
the
Sheriff
,
upon
the
difference
in
the
case
of
the
Marshalsea
,
That
if
the
Court
hold
Plea
of
a
thing
within
their
Jurisdiction
,
but
proceed
erroneously
,
that
it
is
avoidable
by
Error
;
but
if
they
have
not
Jurisdiction
of
the
cause
,
all
is
void
,
and
coram
non
Iudice
.
11
H.
4.
and
19
E.
4.
Acc.
So
in
the
principal
Case
:
for
they
held
Plea
of
a
thing
which
was
out
of
their
Jurisdiction
,
and
therefore
the
whole
proceeding
being
void
,
no
Action
can
lie
against
the
Sheriff
,
for
there
was
no
Escape
.
21.
Where
a
man
is
Outlawed
,
and
the
Outlawry
reversed
,
notwithstanding
the
Original
doth
remain
,
and
the
cause
that
the
Original
was
determined
was
the
Outlawry
;
and
now
Cessante
causa
cessat
effectus
.
22.
A
man
made
a
Lease
for
years
,
with
exception
of
divers
things
,
and
that
the
Lessee
shall
have
conveniens
lignum
non
s●●ccidendo
,
&c.
vendendo
arbores
,
&c.
Now
the
Lessee
cut
down
Trees
,
and
the
Lessor
brought
an
Action
of
Covenant
:
and
the
Opinion
of
the
Court
was
,
That
the
Action
would
lie
,
and
that
it
is
as
a
Covenant
on
the
part
of
the
Lessee
,
because
the
Law
gives
him
reasonable
Estovers
,
and
by
this
Covenant
he
abridgeth
his
Priviledge
.
23.
Justice
Iones
said
,
and
so
it
was
agreed
by
the
Court
,
In
what
case
soever
there
is
a
Contract
made
to
the
Testator
or
the
Intestate
,
or
any
thing
which
ariseth
by
Contract
,
there
an
Action
will
lie
for
the
Executor
or
Administrator
;
but
Personal
Actions
die
with
the
Testator
or
Intestate
.
24.
The
Administrators
of
an
Executor
shall
not
sue
a
Scire
facias
upon
a
Judgment
given
for
the
Testator
,
because
the
Testator
now
died
Intestate
,
because
there
is
no
privity
.
And
so
it
hath
been
many
times
adjudged
.
1
Rep.
96.
a.
5
Rep.
9.
b.
The
Earl
of
Oxford
and
Waterhouse
Case
,
in
a
Writ
of
Error
to
reverse
a
Fine
.
25.
WAterhouse
levied
a
Fine
,
the
Earl
of
Oxford
pleaded
that
he
was
beyond
Sea
at
the
time
of
the
Fine
levied
.
Waterhouse
replied
,
That
he
came
here
into
England
in
August
,
within
the
five
years
;
and
upon
that
they
were
at
issue
.
The
Jury
found
,
that
he
came
over
in
Iuly
.
And
notwithstanding
the
Opinion
of
the
Court
was
clear
,
That
the
Writ
of
Error
did
not
lie
:
For
although
the
Jury
have
found
that
he
came
over
in
Iuly
;
yet
the
substance
of
the
matter
is
,
that
he
was
in
England
,
so
as
he
might
have
made
his
Claim
;
and
therefore
the
Fine
should
bar
him
.
And
Justice
Barckley
compared
it
to
the
Case
of
10
Eliz.
Dyer
271.
b.
which
Case
is
a
Quaere
in
Dyer
,
but
Resolved
in
the
6
Rep.
47.
a.
A
man
brought
Debt
against
an
Heir
,
who
pleaded
that
he
had
nothing
by
Descent
.
The
Plaintiff
pleaded
that
he
had
Assets
in
London
,
and
the
Jury
found
Assets
in
Cornwal
,
and
good
;
for
the
substance
is
,
whether
he
had
Assets
or
not
.
26.
If
a
Nobleman
who
is
not
a
Baron
or
Earl
of
this
Realm
,
in
an
Action
brought
against
him
,
or
by
him
,
be
named
Knight
,
and
Earl
of
such
a
place
,
it
is
good
,
because
that
although
he
cannot
be
sued
,
or
sue
another
,
by
the
name
of
Earl
,
Baron
,
&c.
yet
by
the
name
of
Knight
he
may
,
and
that
is
sufficient
.
27.
Writ
of
Error
was
brought
here
,
to
reverse
a
Judgment
given
in
Ireland
,
it
is
a
Supersedeas
to
the
Execution
:
for
although
the
Record
it self
is
not
sent
over
,
for
fear
of
losing
the
same
in
the
water
or
otherwise
,
yet
a
transcript
is
made
thereof
,
which
is
all
one
.
And
Justice
Barckley
compared
it
to
the
Case
where
a
Writ
of
Error
is
brought
in
this
Court
to
reverse
a
Fine
in
the
Common
Pleas
,
there
the
Record
it self
is
not
sent
,
but
a
Transcript
thereof
,
because
we
have
not
a
Cirographer
to
receive
it
,
but
the
Transcript
is
all
one
.
Sir
John
Compton's
Case
upon
the
Statute
of
Winchester
,
13
Ed.
1.
and
27
Eliz.
of
Robberies
.
28.
SIr
Iohn
Compton
Knight
,
brought
an
Action
against
the
Hundred
of
Olison
(
or
the
like
name
)
for
a
Robbery
done
upon
Red-hill
in
the
County
of
Surry
,
within
the
aforesaid
Hundred
,
and
the
Robbery
was
done
upon
his
man
,
and
five
hundred
and
ten
pounds
was
taken
from
him
.
And
in
this
Case
it
was
agreed
by
the
Justices
,
That
although
there
be
a
remisness
or
negligence
in
the
party
who
was
robbed
,
to
pursue
the
Robbers
,
or
that
he
did
refuse
to
lend
his
Horse
to
make
Hue
and
Cry
;
yet
this
doth
not
take
away
his
Action
,
nor
excuse
the
Hundred
,
if
notice
be
given
with
as
much
convenient
speed
as
may
be
,
as
the
Statute
of
27
Eliz.
speaks
,
for
them
to
make
Hue
and
Cry
.
And
although
the
Party
who
was
robbed
,
doth
not
know
the
Robbers
at
the
present
time
,
and
thereof
takes
his
Oath
before
a
Justice
of
Peace
,
as
the
Statute
of
27
Eliz.
hath
provided
;
and
afterwards
comes
to
know
them
,
and
so
he
affirm
,
yet
this
doth
not
take
away
his
Action
.
And
it
was
resolved
also
,
that
notice
given
in
one
Hundred
five
miles
from
the
place
where
he
was
robbed
,
is
sufficient
;
and
the
reason
is
,
because
that
the
party
who
is
a
stranger
to
the
Country
,
cannot
have
conusance
of
the
nearest
place
or
Town
.
Chief
Justice
:
That
notice
given
at
one
Town
,
and
Hue
and
Cry
levied
at
another
,
is
good
.
And
the
Jury
found
for
the
Plaintiff
:
And
thereupon
a
Quaere
was
made
by
one
who
was
of
Counsel
with
the
Hundred
,
Whether
such
persons
who
become
Inhabitants
after
the
Robbery
,
and
before
the
Iudgment
,
whether
they
should
contribute
?
And
Justice
Barckly
said
,
That
all
who
are
Inhabitants
at
the
time
of
the
Execution
,
should
pay
it
.
29.
A
Vicar
cannot
have
Tithes
but
by
Gift
,
Composition
,
or
Prescription
:
For
all
Tithes
de
jure
do
appertain
to
the
Parson
.
30.
A
man
was
bound
to
the
Good
Behaviour
,
for
Suborning
of
Witnesses
.
Plowden
against
Plowden
.
31.
PLowden
the
Son
brought
Trespass
against
Plowden
the
Father
,
for
taking
the
Plaintiffs
Wife
cum
bonis
viri
.
And
the
Case
was
,
That
he
did
reject
and
eject
his
Wise
without
giving
of
her
Alimony
:
for
which
she
had
Sentence
in
the
High
Commission-Court
;
and
the
Defendant
took
those
Goods
for
the
Alimony
of
the
Wife
.
And
Justice
Barckley
said
,
That
the
Defendant
might
plead
,
Not
guilty
.
Lister
against
Hone
,
in
Trover
and
Conversion
for
a
Hawk
.
32.
JUdgment
was
given
for
the
Plaintiff
,
but
it
was
moved
in
arrest
of
Judgment
,
because
it
was
not
said
in
the
Declaration
,
that
it
was
a
tame
Hawk
.
Dyer
13
Eliz.
306.
b.
and
43
E.
3.
Acc.
And
here
it
was
said
,
That
the
words
of
the
Declaration
shew
that
it
was
a
wild
Hawk
;
for
the
words
are
,
For
taking
Accipitricem
suum
,
Anglicè
vocat
'
a
Ramish
Fawlcon
;
and
it
was
said
that
Ramish
,
is
as
much
as
to
say
,
inter
ramos
agens
;
but
that
was
denied
:
for
a
Ramish
Hawk
is
a
Fowl
Hawk
,
by
which
the
contrary
is
implied
,
that
it
was
tame
.
And
here
it
was
farther
said
for
the
Defendant
,
that
if
[
reclamato
]
be
omitted
,
[
de
bonis
suis
propriis
]
will
not
help
it
.
But
it
was
said
in
affirmation
of
the
Judgment
,
that
although
[
reclamato
]
be
omitted
,
yet
,
that
[
de
bonis
suis
propriis
]
will
help
it
:
and
Justice
Barckley
with
all
the
Justices
(
except
the
Chief
Justice
,
who
was
absent
)
did
agree
very
strongly
,
That
the
Judgment
should
be
stayed
;
because
that
a
Hawk
is
ferae
naturae
,
and
although
it
be
tamed
,
yet
if
it
fly
away
,
and
hath
not
animam
revertendi
,
then
occupanti
conceditur
.
Vide
27
Hen.
8.
And
for
the
words
,
de
bonis
suis
propriis
,
they
do
nothing
,
for
the
Party
had
but
a
Right
of
Possession
,
and
not
of
Property
:
and
if
it
be
,
it
is
but
a
qualified
Property
,
as
7
Rep.
17.
b.
He
agreed
,
that
if
a
man
hath
a
wild
Hawk
in
his
possession
,
and
another
man
takes
it
out
of
his
possession
,
Trespass
will
lie
;
but
if
it
fly
away
,
then
Capiat
qui
capere
potest
:
And
thereupon
Judgment
was
stayed
.
Parkinson
against
Colliford
and
others
,
Executors
of
a
Sheriff
.
33.
THe
Case
was
,
That
Judgment
was
given
against
another
man
at
the
Plaintiffs
suit
in
Debt
,
in
the
Common
Pleas
,
and
upon
that
a
Writ
of
Error
was
brought
in
the
Kings
Bench
,
and
the
Judgment
affirmed
;
and
upon
that
a
Fieri
facias
directed
to
the
Sheriff
,
who
levied
the
Mony
,
and
died
,
the
Writ
being
not
returned
,
and
thereupon
Debt
was
brought
against
his
Executors
:
and
these
exceptions
were
taken
.
1.
That
the
Writ
of
Fieri
facias
was
not
returned
,
and
therefore
the
Sheriff
should
not
be
charged
in
Debt
;
but
otherwise
if
it
had
been
returned
.
2.
That
no
Debt
lieth
against
the
Sheriff
,
although
it
had
been
returned
.
3.
Admit
that
it
would
lie
against
himself
,
yet
it
will
not
lie
against
his
Executors
,
because
it
is
a
Personal
wrong
,
and
dieth
cum
Persona
.
4.
That
the
Fieri
facias
was
awarded
out
of
this
Court
,
and
it
doth
not
appear
whether
it
were
awarded
after
the
Record
removed
into
this
Court
or
not
.
Justice
Barckley
,
with
whom
all
the
other
Judges
did
agree
,
was
of
Opinion
,
That
Debt
would
lie
against
the
Sheriff
where
he
sells
goods
upon
a
Fieri
facias
,
for
now
he
is
Debtor
in
Law
,
and
the
Defendant
discharged
against
the
Plaintiff
,
and
●●e
may
plead
it
;
and
therefore
it
is
reasonable
that
the
Defendant
should
be
answerable
to
the
Plaintiff
,
and
he
took
the
difference
betwixt
Seisin
of
goods
only
,
and
where
the
Sheriff
seiseth
and
selleth
them
:
for
till
Sale
no
Debt
will
lie
against
him
.
And
it
was
said
,
that
Accompt
will
lie
against
him
;
and
if
Accompt
,
by
the
same
reason
,
Debt
.
As
to
the
return
of
the
Writ
,
he
said
that
the
Sheriff
is
not
compellable
to
make
it
,
and
therefore
it
's
nothing
to
the
purpose
;
and
the
difference
stands
,
where
the
Sheriff
returns
a
Jury
,
where
not
:
in
case
of
Elegit
the
Writ
ought
to
be
returned
,
but
not
in
case
of
Fieri
facias
,
as
is
1
H.
7.
Clerk
of
the
Hampers
Case
.
Farther
,
I
conceive
that
it
will
lie
against
the
Executor
,
and
it
is
not
like
the
Cases
which
are
Personal
,
where
the
action
moritur
cum
Persona
:
but
here
the
goods
came
to
the
Executors
,
and
therefore
it
is
reason
to
charge
them
.
And
it
is
not
like
the
Case
in
Dier
,
10
Eliz.
271.
a.
where
it
is
said
,
An
Action
of
Debt
will
not
lie
against
the
Executor
of
a
Keeper
,
nor
an
Escape
,
for
there
the
body
comes
not
to
the
Executor
:
And
this
very
difference
may
be
collected
out
of
Dier
in
the
place
aforesaid
;
and
the
difference
will
stand
where
there
is
a
personal
wrong
done
to
him
,
and
where
not
.
And
for
the
Exception
,
That
it
doth
not
appear
whether
the
Fieri
facias
was
brought
after
the
Record
removed
or
not
:
To
that
they
said
una
voce
,
that
it
appeareth
that
it
was
upon
these
words
of
Record
,
viz.
That
the
Record
was
brought
hither
,
and
here
remained
;
and
it
is
not
needful
to
shew
,
that
Errour
was
brought
,
&c.
Justice
Iones
:
I
conceive
,
that
Debt
will
lie
against
the
Sheriff
,
because
the
Sheriff
had
it
delivered
to
him
to
deliver
over
.
And
if
I
deliver
mony
to
deliver
over
,
Debt
will
lie
for
him
to
whom
it
ought
to
be
delivered
.
So
in
this
Case
.
And
because
also
the
Defendant
is
discharged
,
and
may
plead
the
same
,
and
therefore
there
is
reason
to
charge
the
Sheriff
.
Farther
,
I
conceive
also
,
that
it
will
lie
against
the
Executors
:
And
I
shall
take
this
difference
,
where
the
wrong
is
ex
maleficio
,
for
there
it
dieth
with
the
person
;
and
where
ex
contractu
,
for
there
it
doth
not
die
with
the
person
.
If
I
deliver
goods
to
a
man
,
and
he
di●th
,
an
Action
of
Trover
will
lie
against
his
Executors
.
And
here
the
Sheriff
could
not
have
waged
his
Law
,
for
the
Debt
is
brought
upon
matter
of
Record
,
upon
which
wager
of
Law
lieth
not
,
but
upon
simple
contract
.
And
the
Sheriff
hath
here
made
himself
Debtor
in
Law
upon
Record
.
Justice
Crook
:
It
is
reason
to
charge
the
Sheriff
,
because
the
Defendant
is
discharged
,
and
may
plead
that
his
goods
were
taken
in
Execution
by
the
Sheriff
in
satisfaction
of
the
same
Debt
.
And
the
Executors
may
be
charged
,
because
no
wager
of
Law
lieth
,
because
the
Debt
is
here
brought
upon
matter
of
Record
.
And
he
agreed
with
Justice
Iones
in
the
difference
betwixt
maleficium
and
contractum
.
And
therefore
they
did
all
conceive
that
the
Action
would
lie
.
And
in
Spekes
Case
in
the
Common
Pleas
,
it
was
voted
,
that
the
Action
would
lie
against
the
Sheriff
.
34.
In
a
Habeas
Corpus
,
the
Case
was
thus
:
A
man
would
erect
a
Tavern
in
Birchin-lane
;
and
the
Mayor
and
Communalty
for
his
disobedience
,
because
he
would
not
obey
them
,
but
would
erect
a
Tavern
there
against
their
wills
,
they
knowing
the
same
to
be
an
unfit
place
,
did
imprison
him
.
And
the
Opinion
of
the
Court
was
,
That
he
should
be
remanded
,
because
that
the
Mayor
and
Communalty
had
authority
over
him
,
and
they
might
appoint
him
a
place
in
which
he
might
erect
his
Tavern
.
For
it
is
a
disorderly
Profession
,
and
not
fit
for
every
place
.
And
it
was
adjudged
in
this
Court
,
That
a
Brewhouse
ought
not
to
be
erected
in
Fleet-street
,
because
it
is
in
the
heart
of
the
City
,
and
would
be
annoyance
to
it
.
And
if
one
would
set
up
a
Butchers
shop
,
or
a
Tallow-Chandlers
shop
in
Cheap-side
,
it
ought
not
to
be
,
for
the
great
annoyance
that
would
ensue
.
And
therefore
the
Mayor
and
Communalty
may
redress
it
.
And
therefore
the
party
was
remanded
,
and
was
advised
by
the
Court
to
submit
to
the
Government
of
the
City
.
Note
,
the
Recorder
certified
the
Custom
,
That
the
Mayor
might
appoint
a
place
.
35.
Upon
a
Recovery
in
a
Court-Baron
,
against
one
,
he
offered
here
to
wage
his
Law
.
And
Justice
Barckley
doubted
whether
wager
of
Law
would
lie
in
such
Case
:
To
which
Justice
Iones
said
,
Yes
;
and
Barckly
agreed
hereunto
,
because
the
Recovery
was
in
a
base
Court
,
and
not
in
a
Court
of
Record
.
Vide
2
E.
4.
36.
No
antient
Mill
is
Tithable
;
but
Mills
newly
erected
shall
pay
Tithes
,
by
the
Statute
of
9
E.
2.
5.
Meade
against
Axe
,
in
a
Writ
of
Error
to
reverse
a
Iudgment
.
37.
THe
Case
was
:
Axe
brought
an
Action
against
Meade
for
these
words
spoken
of
the
Plaintiff
,
a
Dyer
,
by
the
D●fendant
,
Thou
art
not
worth
a
Groat
:
And
the
Plaintiff
added
,
that
these
words
amongst
Citizens
of
such
place
where
they
were
spoken
,
have
the
common
acceptation
,
and
doth
tant
amount
as
the
calling
of
him
Bankrupt
.
The
Errors
which
were
assigned
by
Meade
Plaintiff
in
the
Writ
of
Error
were
,
1.
Because
it
is
added
,
that
the
words
were
spoken
inter
diversos
ligeos
,
and
doth
not
say
Citizens
of
the
place
where
they
have
such
acceptation
.
2.
Because
that
the
Judgment
is
,
Consideratum
est
,
and
the
words
per
Curiam
left
out
.
And
the
Court
was
clear
,
that
for
these
two
Errors
the
Judgment
should
be
reversed
:
But
the
Court
was
clear
of
Opinion
,
That
the
words
of
themselves
are
not
actionable
,
and
that
the
averment
in
this
Case
was
idle
and
to
no
purpose
,
because
the
words
of
themselves
imply
a
plain
and
intelligent
sense
and
meaning
to
every
man
.
And
it
was
compared
to
the
Cases
,
Where
there
is
no
Latine
for
words
,
there
where
words
of
no
signification
are
put
to
express
them
,
there
they
ought
to
be
explained
by
an
Anglicè
;
but
where
the
words
are
significant
,
there
needs
not
any
Anglicè
.
Now
if
you
will
explain
significant
words
under
an
Anglicè
,
contrary
to
the
meaning
and
true
intendment
of
the
word
it self
,
the
Anglicè
is
void
:
So
in
our
Case
of
Averment
.
The
reason
which
was
conceived
wherefore
the
words
of
themselves
are
not
Actionable
,
Because
that
many
men
in
their
beginnings
are
not
worth
a
Groat
,
and
yet
their
credit
is
good
with
the
world
.
But
if
he
had
laid
specially
,
That
he
was
damnified
,
and
ha●
lost
his
Credit
,
and
that
none
would
trust
him
,
upon
this
special
matter
,
the
words
would
be
Actionable
.
Bonds
Case
.
38.
IN
Trespass
,
the
Plaintiff
declared
,
That
the
Defendant
entred
in
his
Land
,
and
did
cut
down
and
carry
away
two
Loads
of
Grass
in
the
Plaintiffs
Soil
,
in
a
certain
piece
of
Ground
,
in
which
the
Trespass
was
supposed
to
be
done
,
to
strow
the
floor
of
the
Church
;
and
that
he
cut
two
Load●
there
,
to
estrew
the
floor
of
the
Church
,
and
did
not
say
,
that
it
is
the
same
Trespass
,
&c.
And
it
was
adjudged
Error
:
But
the
Court
was
clear
,
that
the
Prescription
for
cutting
of
grass
to
estrew
the
Church
,
was
good
;
because
it
was
but
in
the
nature
of
an
Easement
.
And
so
to
have
a
washing-place
in
the
land
of
another
;
and
so
the
custom
here
in
London
,
to
shoot
in
the
land
of
another
,
and
so
for
the
Inhabitants
of
a
town
to
have
a
way
over
the
land
of
another
to
their
Church
.
But
Mr.
Rolls
who
moved
the
Case
at
the
Bar
,
said
,
That
it
was
adjudged
,
that
Inhabitants
of
a
town
by
custom
,
should
have
an
Easement
over
the
Freehold
,
or
in
the
Freehold
of
a
Stranger
,
but
not
profit
Apprender
:
But
,
as
I
remember
,
the
Plaintiffs
Freehold
lay
near
the
Church
,
and
for
that
reason
the
Court
might
conceive
the
same
to
be
but
an
Easement
.
Vide
2
H.
3.
cited
by
Justice
Iones
.
Vid.
Gatewoods
Case
,
6
Rep.
60.
b.
Conysbies
Case
.
39.
UPon
the
Lease
of
an
House
,
the
Lessee
Covenanted
that
he
would
Repair
the
House
with
convenient
,
necessary
and
tenantable
Reparations
.
The
Lessor
brought
Covenant
,
and
alleaged
a
breach
of
the
Covenants
,
in
not
repairing
for
want
of
Tiles
,
and
dawbing
with
Morter
,
and
did
not
shew
that
it
was
not
Tenantable
.
And
the
Opinion
of
the
Court
was
,
that
he
ought
to
have
shewed
it
;
for
the
house
may
want
small
Reparations
,
as
a
Tile
or
two
,
and
a
little
Morter
,
and
yet
have
convenient
,
necessary
and
tenantable
Reparations
.
40.
A
Writ
of
Error
was
brought
,
and
the
Error
assigned
was
,
want
of
Pledges
:
And
the
Judgment
was
reversed
,
although
it
was
after
Verdict
.
And
so
was
it
adjudged
in
Dr.
Hussies
case
,
and
Young
and
Youngs
case
,
in
this
Court
;
and
the
Reason
was
given
,
because
that
otherwise
the
King
should
lose
his
Amercement
.
41.
Fish
in
the
River
are
not
Titheable
,
if
not
by
Custome
.
42.
Two
referred
themselves
to
Arbitrement
,
and
the
Arbitrators
arbitrate
,
that
one
of
them
should
pay
a
certain
sum
to
the
other
;
and
the
other
in
consideration
thereof
should
acquit
him
of
a
Bond
,
wherein
they
both
were
bounden
to
a
third
person
in
a
100
lib.
&
eo
circiter
:
and
it
was
objected
,
That
the
Arbitrators
had
arbitrated
a
thing
incertain
,
by
reason
of
these
words
,
eo
circiter
.
But
the
Opinion
of
the
Court
was
,
That
there
was
sufficient
certainty
,
because
that
in
this
Case
it
doth
not
lie
in
their
power
to
know
the
direct
sum
,
and
because
a
small
variation
is
not
material
:
but
if
they
(
as
in
Salmons
case
5
Rep.
)
will
arbitrate
that
one
shall
be
bound
in
a
Bond
to
another
,
and
not
express
in
what
sum
,
the
same
is
utterly
void
,
for
the
incertainty
.
Difference
was
taken
where
the
Arbitrators
arbitrate
one
party
to
do
a
thing
which
lieth
in
his
power
,
and
where
not
,
without
the
help
of
a
third
person
;
there
the
Arbitrament
is
void
:
and
in
the
principal
Case
,
the
difference
was
taken
by
the
Court
,
where
the
Bond
is
forfeit
,
and
the
penalty
is
incurred
,
and
where
not
,
or
the
day
of
payment
is
not
incurred
,
there
payment
at
the
day
is
a
good
discharge
and
acquittance
,
but
where
it
is
incurred
,
it
is
not
.
But
Justice
Iones
said
,
That
he
might
compel
the
Obligee
upon
payment
,
although
the
Bond
was
forfeit
,
to
deliver
the
Bond
by
Subpoena
in
Chancery
;
or
that
he
suffer
an
Action
to
be
brought
against
him
,
and
then
to
discharge
it
,
and
pay
it
.
Goodman
against
West
,
Debt
upon
the
Statute
of
5
Eliz.
Cap.
9.
43.
THere
was
an
action
brought
against
the
Plaintiff
in
the
Common
Pleas
,
who
procured
Process
to
issue
against
the
Defendant
,
for
his
Testimony
in
his
Cause
,
and
a
Note
of
the
Process
was
lest
at
the
Defendants
house
,
being
sixty
miles
from
London
,
and
twelve
pence
to
bear
his
charges
,
which
the
party
did
accept
.
And
the
party
who
served
the
Process
promised
the
Defendant
sufficient
costs
.
And
here
Mr.
Iones
,
who
was
of
Counsel
with
the
Defendant
,
took
three
Exceptions
.
1.
Because
the
Process
was
not
served
upon
the
Defendant
,
as
the
Statute
requires
,
but
a
Note
only
thereof
,
and
it
being
a
Penal
Statute
,
ought
to
be
taken
strictly
.
2.
There
was
but
12
d.
delivered
to
the
Defendant
at
the
time
of
the
serving
of
the
Process
;
which
is
no
reasonable
sum
for
costs
and
charges
according
to
the
distance
of
place
,
as
the
Statute
speaks
:
and
therefore
the
promise
that
he
would
give
him
sufficient
for
his
costs
afterwards
is
not
good
.
3.
The
party
who
recovers
by
force
of
this
Statute
ought
to
be
a
party
grieved
and
damnified
,
as
the
Statute
speaks
,
by
the
not
appearance
of
the
Witness
:
and
because
the
Plaintiff
hath
not
averred
,
that
he
had
loss
thereby
by
his
not
appearance
,
therefore
he
conceived
the
Action
not
maintenable
.
For
the
first
,
the
Court
was
clearly
against
him
,
because
it
is
the
common
course
to
put
divers
in
one
Process
,
and
to
serve
Tickets
,
or
to
give
notice
to
the
first
persons
who
are
summoned
,
and
to
leave
the
Process
it self
with
the
last
only
;
and
that
is
the
usual
course
in
Chancery
,
to
put
many
in
one
Subpoena
,
and
to
leave
a
Ticket
with
one
,
and
the
Label
with
another
,
and
the
Writ
with
the
third
;
and
that
is
the
common
practice
,
and
so
the
Statute
ought
to
be
expounded
:
But
if
there
be
one
only
in
the
Process
,
there
the
Process
it self
ought
to
be
left
with
the
party
.
For
the
second
,
the
Court
did
conceive
,
That
the
acceptance
should
bind
the
Defendant
;
but
if
he
had
refused
it
,
there
he
had
not
incurred
the
penalty
of
the
Statute
.
For
he
ought
to
have
tendred
sufficient
costs
according
to
the
distance
of
the
place
,
which
12
d.
was
not
,
it
being
60
miles
distant
.
But
for
the
third
and
last
Exception
,
the
Court
was
clear
of
Opinion
,
That
the
Action
would
not
lie
for
want
of
Averment
,
that
the
Plaintiff
was
damnified
for
the
not
appearance
of
the
Defendant
.
And
so
it
was
adjudged
that
the
Plaintiff
Nihil
capiat
per
Billam
.
44.
The
Opinion
of
the
Court
was
:
That
whereas
one
said
of
another
,
That
he
will
prove
that
he
hath
stollen
his
Books
;
that
the
words
are
actionable
:
for
they
imply
an
affirmative
,
and
are
as
much
as
if
he
had
said
,
That
he
hath
stollen
my
Books
.
And
so
if
I
say
of
another
,
That
I
will
bring
him
before
a
Iustice
of
Peace
;
for
I
will
prove
that
he
hath
stollen
,
&c.
although
the
first
words
are
not
actionable
,
yet
the
last
are
.
Molton
against
Clapham
.
45.
THe
Defendant
upon
reading
Affidavits
in
Court
openly
in
the
presence
and
hearing
of
the
Justices
and
Lawyers
said
,
There
is
not
a
word
true
in
the
Affidavits
,
which
I
will
prove
by
forty
Witnesses
;
and
these
words
were
alledged
to
be
spoken
maliciously
.
And
yet
the
Court
was
clear
of
Opinion
,
that
they
will
not
bear
Action
.
And
the
reason
was
,
because
they
are
common
words
here
,
and
usual
where
an
Action
is
depending
betwixt
two
,
for
one
to
say
,
That
the
Affidavit
made
by
the
other
is
not
true
,
because
it
is
in
defence
of
his
cause
.
And
so
it
was
here
.
The
Defendant
spake
the
words
upon
the
reading
of
the
Affidavits
in
a
cause
depending
betwixt
the
Plaintiff
and
the
Defendant
.
And
therefore
if
I
say
,
That
J.
S.
hath
no
Title
to
the
Land
;
if
I
Claim
or
make
Title
to
the
Land
:
Or
if
I
say
,
That
J.
S.
is
a
Bastard
,
and
entitle
my self
to
be
right
Heir
,
the
words
are
not
actionable
,
because
that
I
pretending
Title
,
do
it
in
defence
thereof
.
And
Justice
Barckley
said
,
That
there
are
two
main
things
in
Actions
for
words
,
the
words
themselves
,
and
causa
dicendi
;
and
therefore
sometimes
,
although
that
the
words
themselves
will
bear
Action
,
yet
they
being
considered
causa
dicendi
,
sometimes
they
will
not
bear
Action
.
Now
in
our
Case
causa
dicendi
was
in
his
own
defence
,
or
his
Title
,
and
therefore
they
will
not
bear
Action
.
46.
Outlawry
was
reversed
for
these
two
Errors
.
1.
Because
it
was
not
shewed
where
the
party
Outlawed
was
inhabitant
.
2.
Because
it
was
shewed
that
Proclamations
were
made
,
but
not
that
Proclamation
was
made
at
the
Parish-Church
where
,
&c.
Buckley
against
Skinner
.
47.
THere
was
Exception
taken
,
because
that
the
Defendant
pleaded
and
justified
the
Trespass
,
cum
equis
;
and
said
nothing
to
the
Trespass
done
porcis
&
bidentibus
.
And
the
Opinion
of
the
Court
was
,
That
the
Plea
was
insufficient
for
the
whole
.
And
Justice
Iones
said
,
That
if
several
Trespasses
are
done
to
me
,
and
I
bring
Trespass
,
and
the
Defendant
justifie
for
one
or
two
,
and
sayeth
nothing
to
the
other
,
that
the
whole
Plea
is
naught
,
because
the
Plea
is
intire
as
to
the
Plaintiff
,
and
the
demurrer
is
intire
also
.
But
Justice
Barckley
was
of
Opinion
,
that
the
Plea
was
naught
quoad
,
&c.
only
;
and
that
Judgment
should
be
given
for
the
other
.
Vide
11.
Rep.
6.
b.
Gomersall
and
Gomersalls
Case
.
48.
A
man
pleaded
a
descent
of
a
Copy-hold
in
Fee
:
The
Defendant
to
take
away
the
descent
pleaded
,
That
the
Ancestor
did
surrender
to
the
use
of
another
,
absque
hoc
,
that
the
Copy-holder
died
seised
.
And
the
Opinion
of
the
Court
was
,
That
it
was
no
good
traverse
,
because
he
traversed
that
which
needed
not
to
be
traversed
;
for
being
Copy-hold
,
and
having
pleaded
a
surrender
of
it
,
the
party
cannot
have
it
again
if
not
by
surrender
.
Like
the
Case
of
a
Lease
for
years
,
Helliers
Case
.
6
▪
Rep.
25.
b.
For
as
none
can
have
a
Lease
for
years
but
by
lawful
conveyance
,
so
none
can
have
a
Copy-hold
Estate
,
if
not
by
surrender
:
But
if
a
man
plead
a
descent
of
inheritance
at
the
Common
Law
,
there
the
defendant
may
plead
a
feoffment
made
by
the
Ancestor
absque
hoc
,
that
he
died
seised
,
because
he
may
have
an
estate
by
disseism
after
the
feofment
.
Traverse
of
the
descent
,
and
not
of
the
dying
seised
,
is
not
good
;
so
was
it
adjudged
in
this
Court
.
Vide
24
H.
8.
Dyer
.
49.
It
was
moved
in
Arrest
of
Judgment
upon
an
Action
of
Trespass
upon
the
Statute
of
2
E.
6.
cap.
13.
because
that
the
Plaintiff
said
,
that
the
Defendant
was
Occupier
only
,
and
did
not
sh●w
how
he
occupied
,
or
what
interest
he
had
.
And
the
〈◊〉
●pinion
of
the
Court
was
,
that
he
need
not
,
because
here
he
makes
no
Title
;
and
whosoever
it
be
that
taketh
the
Tithe
is
a
Trespasser
.
And
therefore
Justice
Iones
said
,
That
it
was
adjudged
in
this
Court
,
that
an
Action
lieth
against
the
disseisor
for
the
Tithes
:
so
against
a
servant
:
and
so
if
one
cut
them
,
and
another
carry
them
away
,
an
Action
lieth
against
any
of
them
.
50.
The
Parish
of
Ethelburrow
in
London
alledged
a
custome
,
that
the
greater
part
of
the
Parishioners
have
used
to
choose
their
Church-wardens
;
and
they
chose
two
,
the
Parson
chose
a
third
.
The
Official
of
the
Bishop
gave
Oath
to
one
of
them
chosen
by
the
Parish
,
but
refused
to
swear
the
other
,
and
would
have
sworn
the
party
chosen
by
the
Parson
,
but
the
Parish
was
against
it
;
upon
which
the
Parson
Libelled
in
the
Ecclesiastical
Court
.
And
a
Mandat
was
here
praid
,
That
the
Official
swear
the
other
who
was
chosen
by
the
Parish
;
and
a
Prohibition
to
stay
the
Suit
in
the
Ecclesiastical
Court.
Upon
the
Mandat
the
Justices
doubted
,
and
desired
that
Presidents
and
Records
might
be
searched
;
and
at
length
,
upon
many
Motions
,
Presidents
and
Records
shewed
,
a
Mandat
was
granted
.
But
there
being
Suit
in
the
Ecclesiastical
Court
,
b●
the
other
whom
the
Parson
chose
,
a
Prohibition
was
granted
without
any
difficulty
:
But
at
first
the
Counsel
prayed
a
Prohibition
for
not
swearing
the
other
;
which
the
Court
refused
to
grant
,
because
there
was
no
proceeding
in
the
Ecclesiastical
Court
,
and
a
Prohibition
cannot
be
granted
where
there
is
no
proceeding
by
way
of
Suit
.
Vaughan
against
Vaughan
;
in
Action
upon
the
Case
upon
Assumpsit
.
51.
THe
Defendant
did
promise
that
he
would
make
such
a
Conveyance
of
certain
Lands
:
and
pleaded
,
That
he
had
made
it
,
but
did
not
shew
the
place
where
it
was
made
:
And
the
Court
was
clear
of
Opinion
,
that
he
need
not
;
for
it
shall
be
intended
upon
the
Land
.
And
so
in
case
of
performance
of
Covenants
,
it
is
not
needful
to
shew
the
place
where
,
&c.
Norrice
and
Norrices
Case
.
52.
COpy-holder
for
life
,
where
the
custome
is
,
That
if
the
Tenant
die
seised
,
that
he
shall
pay
a
Heriot
:
The
Lord
granted
the
Seigniory
for
99
years
,
if
the
Tenant
should
so
long
live
:
And
after
that
he
made
a
Lease
for
4000
years
.
Tenant
for
Life
is
disseised
,
(
or
more
properly
,
ousted
)
and
died
.
Here
were
two
Questions
:
1.
Whether
there
were
any
Heriot
to
be
paid
,
and
admitting
there
were
,
yet
who
should
have
it
,
whether
the
Grantee
for
99
years
,
or
he
who
had
the
4000
years
?
And
the
Court
was
clear
of
Opinion
in
both
points
without
any
argument
,
1.
That
a
Heriot
was
to
be
paid
,
not
withstanding
that
the
Tenant
did
not
die
seised
,
because
he
had
the
estate
in
right
,
and
might
have
entred
,
although
he
had
not
the
possession
.
And
Justice
Barckley
compared
it
to
the
Case
in
C.
3.
Rep.
35.
a.
in
Butler
and
Bakers
Case
,
where
a
man
hath
one
acre
of
Land
holden
in
Capite
,
and
a
hundred
acres
of
Socage
Land
,
and
afterwards
he
is
disseised
of
the
Capite
Land
,
and
afterwards
makes
his
will
of
all
his
Socage
Land
,
in
that
case
he
is
a
person
having
of
Capite
Land
,
as
the
Statute
speaks
.
And
yet
that
right
of
Capite
Land
shall
make
the
devise
void
for
the
third
part
;
for
notwithstanding
the
disseisin
,
yet
he
is
Tenant
in
Law
.
And
as
to
the
second
point
,
the
Court
was
clear
of
Opinion
also
,
That
he
in
remainder
,
or
he
that
had
the
Estate
for
4000
years
(
for
note
the
Action
was
brought
by
him
in
the
Remainder
for
the
Heriot
)
should
not
have
it
:
And
their
reason
was
,
because
the
Tenant
for
life
was
not
the
Tenant
of
him
who
had
the
future
interest
of
4000
years
,
but
of
him
who
had
the
interest
for
99
years
.
But
they
were
not
clear
of
opinion
,
that
the
Grantee
for
99
years
should
have
the
Heriot
.
Justice
Barckley
was
,
that
the
Grantee
for
99
years
should
have
it
.
But
Justice
Iones
(
there
being
then
none
in
Court
but
they
)
haesitavit
.
And
the
reason
of
the
doubt
was
,
because
that
eo
instante
that
the
Tenant
died
,
eodem
instante
,
the
estate
of
the
Grantee
for
99
years
determineth
.
Justice
Iones
put
this
Case
:
A
Seigniory
is
granted
for
the
life
of
the
Tenant
,
the
remainder
over
in
fee
;
the
Tenant
dieth
,
Who
shall
have
the
Ward
?
Justice
Barckley
said
,
he
who
is
Grantee
of
the
particular
estate
:
but
Iones
seemed
to
doubt
it
.
Vide
44
E.
3.
13.
Lewes
against
Jones
in
a
Writ
of
Error
.
53.
JUdgment
was
given
for
Iones
against
Lewes
in
an
Action
brought
in
the
Common
Pleas
:
And
Lewes
here
brought
a
Writ
of
Error
,
and
assigned
for
Error
,
That
he
was
an
infant
at
the
time
of
the
Action
brought
against
him
;
And
that
he
appeared
by
Attorney
,
whereas
he
ought
to
appear
by
Guardian
,
or
procheine
amy
:
The
defendant
pleaded
in
avoidance
of
this
Writ
of
Error
,
That
there
was
no
Warrant
of
Attorney
.
The
Plaintiff
allegando
,
shewed
the
Error
before
;
And
the
Defendant
pleaded
in
nullo
erratum
est
.
And
the
Judgment
was
reversed
.
But
the
Opinion
of
the
Court
was
,
That
the
better
way
had
been
for
the
Plaintiff
to
have
demurred
in
Law
:
for
there
being
no
warrant
of
Attorney
,
there
was
no
appearance
at
all
;
and
so
are
the
Books
,
38
E.
3.
and
14
E.
4.
54.
In
Vtburt
and
Parhams
Case
,
it
was
agreed
,
That
a
man
may
be
Non-suit
without
leave
of
the
Court
,
but
he
cannot
discontinue
his
Suit
without
consent
of
the
Court.
Davis
and
Bellamies
Case
in
Attaint
.
55.
THe
Defendant
brought
Attaint
,
and
the
Verdict
was
affirmed
;
and
Costs
prayed
upon
this
Rule
,
that
where
the
Plaintiff
shall
have
costs
,
there
the
Defendant
shall
have
costs
:
But
they
were
denied
by
the
Court
;
for
that
ought
to
be
taken
in
the
original
Action
,
and
not
in
case
of
Attaint
;
But
upon
the
restituatur
,
there
costs
shall
be
given
;
but
that
is
in
the
original
Action
.
56.
If
two
joynt-tenants
be
of
a
Rectory
,
and
one
sueth
for
Tithes
by
himself
only
;
it
is
n●
cause
of
Prohibition
:
So
if
a
Feme
Covert
sue
solely
upon
a
desamation
,
a
Prohibition
shall
not
be
granted
.
57.
The
Sheriff
of
a
County
made
a
Warrant
Bal●ivis
suis
,
to
arrest
the
body
of
such
a
man
,
and
the
Bayliffs
of
the
Liber●y
return
a
Rescous
.
And
Exception
was
taken
to
it
,
because
that
the
Warrant
was
,
Ballivis
suis
;
and
the
Return
was
made
by
those
who
were
not
his
Bayliffs
;
and
it
was
adjudged
:
for
the
Liberty
might
be
within
his
Bayliwick
,
and
so
are
all
the
Presidents
.
And
there
was
another
Exception
,
because
the
place
of
the
Rescous
was
not
shewed
,
and
for
that
the
Book
of
10
E.
4.
was
cited
;
for
there
the
Rescous
was
,
adtunc
&
ibidem
,
and
did
not
shew
the
place
.
To
that
it
was
answered
by
the
Court
,
and
agreed
,
that
adtunc
&
ibidem
is
altogether
incertain
,
if
the
place
be
not
shewed
;
but
in
the
principal
Case
,
the
place
was
shewed
at
the
first
,
and
always
after
;
that
tunc
&
ibidem
only
without
naming
of
the
place
,
and
adjudg●d
good
.
For
that
tunc
&
ibidem
throughout
the
Declaration
,
hath
reference
to
the
place
first
shewed
;
and
it
was
adjudged
good
.
58.
Outlawry
was
reversed
for
this
Error
,
because
that
the
Exigent
was
,
Secund
exactus
ad
Com'
meum
ibidem
,
&c.
59.
A
Hundred
may
prescribe
in
Non
decimando
,
and
it
is
good
;
for
it
is
the
custome
of
the
County
,
which
is
the
best
Law
which
ever
was
.
But
a
Parish
or
a
particular
Town
cannot
prescribe
in
Non
decimando
:
And
thereupon
a
Prohibition
was
granted
.
And
a
Prohibition
was
granted
in
this
Court
,
upon
this
surmise
,
That
the
Custome
was
,
that
Tithes
should
not
be
paid
of
Pheasants
.
60.
If
there
be
no
Venire
facias
it
is
not
Error
,
but
it
is
helped
by
the
Statute
:
But
if
there
be
a
Venire
facias
,
and
it
is
erroneous
,
it
is
not
holpen
by
any
Statute
.
Trinity-Term
,
15ᵒ
CAROLI
,
in
the
Kings
Bench.
61.
A
Man
indicted
others
at
the
Sessions-house
in
the
Old-Baily
,
who
were
acquitted
;
and
the
Defendants
Counsel
did
remove
the
Indictment
into
the
Kings
Bench
,
and
prayed
a
Copy
thereof
,
to
the
end
they
might
bring
a
Conspiracie
,
or
have
other
remedy
for
the
wrong
done
unto
them
.
And
it
was
denied
by
the
whole
Court
,
unless
the
Recorder
will
say
,
That
there
appeared
malice
in
the
prosecution
:
For
a
man
shall
not
be
punished
for
lawful
prosecution
upon
just
ground
without
malice
,
although
the
parties
be
acquitted
by
Law
.
The
King
against
the
Inhabitants
of
Shoreditch
.
62.
MAster
Keeling
Clerk
of
the
Crown
in
the
Kings
Bench
did
exhibit
an
Information
against
the
Inhabitants
of
Shoreditch
for
not
repairing
the
High-way
.
And
the
Issue
was
,
Whether
they
ought
to
repair
it
or
no
?
And
it
was
said
by
the
Court
,
That
by
the
Common
Law
,
the
Inhabitants
of
a
Parish
ought
to
repair
all
High-ways
lying
within
the
Parish
,
If
prescription
did
not
bind
some
particular
person
thereto
;
which
was
not
in
this
Case
.
And
in
this
Case
some
of
the
Inhabitants
would
have
been
Witnesses
to
prove
that
some
particular
Inhabitants
lying
upon
the
High-way
had
used
time
out
of
minde
to
repair
it
,
but
were
not
permitted
by
the
Court
,
because
they
were
Defendants
in
the
Information
;
wherefore
the
Jury
found
,
That
the
Inhabitants
ought
to
repair
the
way
.
63.
Two
men
and
their
wives
were
Indicted
upon
the
Statute
of
Forcible
Entry
,
who
brought
a
Certiorari
to
remove
the
Indictment
into
the
Kings
Bench.
Some
of
them
did
refuse
to
be
bound
to
prosecute
according
to
the
Statute
of
21
Iac.
c.
8.
and
therefore
,
notwithstanding
the
Certiorari
,
the
Justices
of
Peace
did
proceed
to
the
trial
of
the
Indictment
:
and
here
it
was
resolved
,
That
whereas
the
Statute
is
,
The
parties
Indicted
,
&c.
shall
become
bound
,
&c.
That
if
one
of
the
parties
offer
to
find
Sureties
,
although
the
others
will
not
,
yet
that
the
cause
shall
be
removed
;
for
the
denying
of
one
or
any
of
them
shall
not
prejudice
the
other
of
the
benefit
of
the
Certiorari
,
which
the
Law
gives
unto
them
:
And
the
Woman
cannot
be
bounden
.
And
it
was
farther
resolved
,
that
where
the
Statute
saith
,
That
the
parties
Indicted
shall
be
bound
in
the
sum
of
ten
pounds
,
with
sufficient
Sureties
,
as
the
Justices
of
the
Peace
shall
think
fit
,
that
if
the
Sureties
be
worth
ten
pounds
,
the
Justices
cannot
refuse
them
,
because
that
the
Statute
prescribes
in
what
sum
they
shall
be
bound
.
Like
to
the
Case
of
Commission
of
Sewers
,
10
Rep.
140.
a.
That
where
the
Statute
of
3.
H.
8.
cap.
5.
enables
them
to
ordain
Ordinances
and
Laws
according
to
their
wisdoms
and
discretions
,
that
it
ought
to
be
interpreted
according
to
Law
and
Justice
.
And
here
it
was
farther
resolved
,
that
after
a
Certiorari
brought
,
and
tender
of
sufficient
Sureties
,
according
to
the
Statute
,
all
the
proceedings
of
the
Justices
of
Peace
are
coram
non
Iudice
.
The
Argument
of
the
Lord
Chief
Iustice
,
in
the
Case
between
James
and
Tintny
,
in
a
Writ
of
Error
to
reverse
Iudgment
given
in
the
Common
Pleas
for
Tintney
Defendant
,
in
a
Replevin
brought
by
James
:
the
Case
was
thus
,
vis
.
64.
STowel
was
Lord
of
a
Mannor
,
and
Iames
one
of
the
Tenants
,
and
there
the
custome
was
,
That
the
Steward
of
the
Mannor
might
make
Laws
and
Ordinances
for
the
well-ordering
of
the
Common
.
And
the
custome
was
also
to
Assess
a
penalty
or
a
pain
upon
those
who
brake
those
Laws
and
Ordinances
.
And
also
to
prescribe
to
distrain
for
the
penalty
.
The
Steward
made
an
Ordinance
,
That
he
who
put
his
Cattle
beyond
such
a
bound
,
that
he
should
pay
3
s.
4
d.
Iames
offended
against
this
Ordinance
,
upon
which
the
penalty
was
assessed
,
and
a
distress
taken
by
Tintny
Defendant
in
the
Replevin
,
Plaintiff
and
Baily
of
the
Lord
of
the
Mannor
;
And
Judgment
was
given
for
him
in
the
Common
Pleas
,
and
damages
assessed
:
Upon
which
a
Writ
of
Error
was
brought
.
In
this
Case
it
was
agreed
by
the
whole
Court
,
that
the
Custom
was
reasonable
:
And
the
difference
taken
where
the
Law
or
Ordinance
takes
away
the
whole
profit
of
the
Commoners
,
and
where
it
abridgeth
it
only
,
or
adds
limits
or
bounds
to
it
,
as
in
this
Case
.
And
farther
it
was
agreed
,
That
the
Commoners
are
bound
to
take
notice
of
these
Ordinances
.
But
in
this
Case
,
the
Er●or
which
was
assigned
was
this
,
That
damages
were
given
for
the
Defendant
,
where
no
damages
ought
to
have
been
given
:
And
of
that
Opinion
was
the
Lord
chief
Justice
,
that
no
damages
ought
to
have
been
given
;
and
with
him
agreed
Justice
Iones
;
but
Justice
Crook
and
Justice
Barckley
,
è
contra
.
It
is
clear
,
that
at
the
Common
Law
,
the
Defendant
shall
not
have
damages
,
although
as
to
some
intent
the
Avowant
be
as
it
were
a
Plaintiff
and
Actor
.
21.
H.
6.
2.
6.
H.
4.
11.
35
▪
H.
6.
47.
Then
the
Question
ariseth
only
upon
these
two
Statutes
,
viz.
7.
H.
6.
cap
4.
21.
H.
8.
c.
19.
And
first
,
whether
our
Case
be
within
the
Letter
of
these
Laws
;
Admitting
that
not
,
Whether
within
the
mischief
,
so
as
that
it
shall
have
the
same
remedy
.
And
I
conceive
,
it
is
not
within
the
Letter
or
Equity
of
these
Statutes
:
Not
within
the
Letter
;
for
they
speak
,
Where
a
man
distrains
for
Rents
,
Customs
and
Services
,
or
damage
●easant
.
And
in
our
Case
,
he
doth
not
distrain
for
any
of
them
;
for
it
is
manifest
,
that
he
doth
not
distrain
for
Rents
,
Services
,
or
Damage
feasant
:
And
it
is
as
clear
,
that
he
doth
not
distrain
for
Customs
;
for
he
distrained
for
a
penalty
assessed
by
Custom
.
1.
In
Alcocks
case
it
was
here
resolved
,
That
where
a
prescription
was
alledged
to
distrain
for
an
Estray
,
and
found
for
the
Avowant
,
that
no
damages
should
be
in
that
case
.
For
it
was
here
resolved
,
that
the
Customs
intended
in
21
H.
8.
cap.
19.
are
Customs
which
are
Services
.
2ly
.
I
hold
it
not
within
the
Equity
;
for
the
mischief
at
the
Common
Law
was
,
That
damages
were
not
to
be
recovered
for
such
Rents
,
Services
,
&c.
And
this
penalty
is
no
Service
.
And
I
conceive
clearly
,
That
it
was
not
the
meaning
of
the
Makers
of
the
Act
of
Parliament
to
extend
to
such
penalties
.
And
here
I
further
take
the
difference
which
is
in
Pilfords
case
in
the
10
Rep.
116.
In
all
cases
where
a
man
at
the
Common
Law
cannot
recover
damages
:
If
a
Statute
give
damages
,
there
he
shall
recover
no
costs
;
for
the
same
is
an
Act
of
Creation
,
which
gives
remedy
where
none
was
given
before
.
But
where
there
is
an
Act
of
Addition
,
which
increaseth
the
damages
at
the
Common
Law
,
there
notwithstanding
he
shall
recover
costs
also
.
So
in
our
Case
,
these
being
Acts
of
Creation
which
give
remedy
where
there
was
no
remedy
before
,
shall
be
taken
strictly
according
to
the
Letter
,
and
shall
not
extend
to
such
penalties
as
in
our
case
:
And
upon
this
difference
he
cited
the
Cases
in
Pilfords
case
,
and
especially
the
Case
upon
the
Statute
of
5
E.
6.
of
Ingrossers
;
the
Plaintiff
shall
not
recover
costs
,
but
only
the
penalty
given
by
the
Statute
grounded
upon
37
H.
6.
10.
I
agree
,
That
there
be
many
Presidents
in
the
Common
〈◊〉
▪
That
damages
have
been
allowed
in
our
very
Case
;
but
that
is
the
use
of
the
Clerks
,
and
passed
sub
silentio
,
without
any
solemn
debate
or
controversie
.
Vide
Greislies
case
,
and
the
first
Case
of
the
Book
of
Entries
,
Presidents
and
Judgments
in
this
Court
.
Pasch.
33
Eliz.
Rot.
292.
Halesworth
against
Chaffely
.
A
Judgment
of
the
Common
Pleas
was
reversed
for
this
very
point
.
M.
36
Eliz.
Ruddal
and
Wilds
Case
.
M.
44
&
45
Eliz.
Rot.
22.
Shepwiths
Case
.
Avowry
for
relief
a
stronger
case
,
Judgment
was
reversed
,
because
damages
was
assessed
,
Hill
.
14
Iac.
Rot.
471.
Leader
against
Standwell
in
a
Replevin
.
Avowry
was
made
for
an
Amercement
in
a
Leet
,
and
found
●or
the
D●fendant
,
and
damages
assessed
.
But
the
Entry
upon
the
Record
was
thus
,
Super
quo
nullo
habito
respectu
,
&c.
The
Plaintiff
was
discharged
of
the
damages
,
because
nulla
damna
debent
esse
adjudicanda
per
Legem
terrae
;
but
he
shall
have
his
costs
.
But
it
was
objected
by
Justice
Crook
,
That
by
the
Statute
of
4
Iac.
c.
3.
which
giveth
costs
and
damages
to
the
Defendant
in
certain
Actions
there
specified
where
the
Plaintiff
shall
recover
damages
,
and
that
where
the
Plaintiff
is
Non-suit
,
or
verdict
pass
against
him
,
That
Demurrer
hath
been
construed
to
be
within
that
Statute
.
Notwithstanding
that
it
is
an
Act
of
Creation
,
I
agree
that
:
and
answer
,
that
Demurrer
is
within
that
Statute
,
and
the
mischief
of
it
,
but
it
is
not
so
in
our
Case
;
for
in
our
Case
there
is
no
such
mischief
:
For
there
is
no
colour
to
extend
it
beyond
the
words
of
the
Statute
.
For
which
cause
I
conclude
that
the
Judgment
in
this
case
ought
to
be
reversed
.
65.
A
Clerk
of
the
Court
dwelling
in
London
was
chosen
Churchwarden
,
and
prayed
a
Writ
of
Priviledge
,
which
was
granted
.
And
it
was
agreed
by
the
whole
Court
,
That
for
all
Offices
which
require
his
personal
and
continual
attendance
,
as
Churchwarden
,
Constable
,
and
the
like
,
he
may
have
his
Priviledge
;
but
for
Offices
which
may
be
executed
by
Deputy
,
and
do
not
require
attendance
,
as
Recorder
and
the
like
;
(
from
which
the
Justices
themselves
shall
not
be
exempt
)
for
them
he
shall
not
have
his
Priviledge
.
And
where
he
hath
his
Priviledge
,
for
the
not
obeying
thereof
,
an
Attachment
lieth
.
Swift
against
Heirs
,
in
Debt
upon
the
Statute
of
2
E.
6.
for
setting
out
of
Tythes
.
66.
THe
doubt
in
this
Case
did
arise
upon
two
several
Indentures
found
by
special
verdict
,
which
were
made
by
the
Vicar
and
Subchauntors
Corrols
of
Lichfield
;
one
2
E.
6.
the
other
2
&
3
Phil.
&
Mar.
The
Question
upon
the
Indenture
of
2
E.
6.
was
,
Whether
the
Grant
upon
the
Habendum
,
be
a
grant
of
a
Freehold
to
begin
at
a
day
to
come
,
or
not
.
The
chief
Justice
,
Justice
Crooke
,
and
Justice
Barckley
,
were
clear
of
Opinion
,
That
it
was
a
grant
of
a
Freehold
to
begin
at
a
day
to
come
.
And
for
that
the
Case
is
thus
:
In
the
Indenture
of
2
E.
6.
there
is
a
recital
of
a
former
Lease
for
years
:
And
by
this
Indenture
in
2
E.
6.
another
Lease
was
to
begin
after
the
first
Lease
determined
,
the
remainder
in
Fee
to
another
:
And
upon
that
the
three
Justices
before
were
clear
in
their
Judgments
,
That
it
was
a
Grant
of
Freehold
to
begin
at
a
day
to
come
,
which
without
doubt
is
void
,
8
H.
7.
39
H.
6.
and
Bucklers
case
,
3
Rep.
And
in
8
H.
7.
the
difference
is
taken
betwixt
the
grant
of
a
Rent
in
esse
,
and
Rent
de
novo
.
A
Rent
de
novo
may
be
granted
in
futuro
,
but
not
a
Rent
which
is
in
being
.
But
Justice
Iones
in
this
Case
was
of
Opinion
,
That
here
is
not
any
grant
of
a
Freehold
to
begin
at
a
day
to
come
,
because
in
this
case
the
Lease
doth
begin
presently
,
because
the
Lease
recited
is
not
found
by
the
Jury
,
and
therefore
now
it
is
all
one
as
if
there
had
been
no
Lease
at
all
;
contrary
in
the
case
of
the
King
,
because
it
passeth
a
good
estate
of
Inheritance
to
the
Grantee
.
And
therefore
if
I
make
a
Lease
for
years
unto
a
man
after
the
expiration
of
such
a
Lease
,
where
in
truth
there
is
no
such
Lease
in
being
,
the
Lease
shall
begin
presently
.
The
Question
upon
the
Indenture
of
2
&
3
P.
&
Mar.
was
no
more
but
this
.
The
Vicar
and
Subchauntors
of
Lichfield
made
a
Grant
of
all
their
Tithes
in
Chesterton
,
and
name
them
in
certain
,
and
in
specie
,
as
Tithe-wool
,
Tithe
▪
Geese
,
Pigs
,
Swans
,
and
the
like
,
and
that
in
a
distinct
clause
,
with
especial
Exception
of
four
certain
things
.
After
which
came
this
clause
,
All
which
were
in
the
Tenure
of
Margaret
P●toe
:
And
the
Jury
sound
that
none
of
these
Tithes
were
in
h●r
Tenure
:
And
whether
that
Grant
were
void
or
not
,
was
the
Question
;
And
resolved
by
the
whole
Court
nullo
contradicente
,
That
the
Grant
notwithstanding
this
fall●
reci●al
,
was
good
,
For
these
reasons
.
But
first
it
was
resolved
,
That
where
they
grant
all
their
Tithes
in
Chesterton
,
that
it
is
a
good
grant
,
and
hath
sufficient
and
convenient
certainty
,
13
E.
4.
and
●●●lands
Case
:
There
are
two
Generalities
,
1.
Absolute
.
2.
Gen●●al
in
particular
;
●o
here
▪
And
in
our
Case
it
is
as
c●r●ain
,
that
demand
in
an
Action
may
be
for
them
by
the
name
of
all
their
Tithes
in
Chesterton
.
So
in
the
like
manner
an
Action
of
Ejectione
firme
will
lie
:
For
an
Ejectione
firme
will
〈◊〉
for
Tithes
as
it
hath
been
adjudged
here
.
If
the
King
grant
all
his
Lands
,
it
is
altogether
incertain
and
void
;
but
if
the
King
grant
all
his
Lands
in
Dale
,
or
which
came
to
him
by
the
dissolution
of
such
an
Abby
,
it
is
good
,
because
it
is
a
general●y
in
particular
.
And
it
was
agreed
,
that
convenient
certainty
is
sufficient
:
And
therefore
it
was
said
by
Justice
Iones
,
That
if
I
grant
all
my
Rents
in
Dale
which
I
have
of
the
part
of
my
Mother
,
that
he
conceives
the
same
to
be
good
.
The
first
reason
wherefore
this
grant
shall
be
good
notwithstanding
the
false
recital
,
was
this
,
because
the
words
here
,
All
which
,
&c.
are
not
words
of
denotation
or
restriction
,
but
of
suggestion
or
affirmation
,
and
therefore
shall
not
make
void
the
Grant
.
And
here
the
difference
was
taken
between
the
Case
of
a
common
person
,
and
of
the
King
;
Suggestion
which
is
false
in
the
Case
of
the
King
,
makes
the
Patent
void
;
but
contrary
in
the
case
of
a
common
person
:
And
therefore
i●
the
King
be
deceived
either
in
point
of
profit
or
in
point
of
Title
,
his
Grant
is
void
,
9
H.
6.
Where
he
is
not
deceived
in
point
of
profit
,
he
shall
not
avoid
the
Grant
.
26
H.
8.
The
second
reason
,
That
a
Deed
ought
to
be
construed
Vt
res
magis
valeat
quam
pereat
,
34
H.
6.
A
man
having
a
Reversion
,
deviseth
his
land
in
Manibus
,
thereby
the
Reversion
passeth
,
9
E
4.
42.
Release
of
all
Actions
against
Prior
and
Covent
,
shall
be
construed
and
intended
all
Actions
against
the
Prior
only
,
for
an
Action
cannot
be
brought
against
the
Covent
.
Farther
,
by
this
construction
you
would
avoid
this
deed
;
and
by
the
Rule
of
Law
,
the
deed
and
words
of
every
man
shall
be
taken
very
strong
against
himself
,
ut
res
magis
valeat
,
as
is
said
before
.
And
it
is
against
reason
to
conceive
that
it
was
the
meaning
of
the
parties
that
nothing
should
pass
.
A
third
reason
was
,
because
the
grant
was
a
distinct
clause
of
it self
.
And
the
words
which
were
objected
at
the
Bar
to
be
restrictive
,
were
in
another
distinct
clause
,
and
therefore
shall
not
restrain
that
which
was
before
;
for
words
restrictive
ought
to
be
continued
in
one
and
the
same
sentence
:
Wherefore
they
having
granted
all
their
Tithes
in
Chesterton
by
one
clause
,
the
false
recital
afterwards
in
another
clause
shall
not
make
the
grant
void
.
See
3
&
4
Eliz.
Dyer
in
Wast
,
31
Eliz.
the
Lord
Wenworths
Case
in
the
Exchequer
upon
this
Rule
of
distinct
clauses
:
And
Atkins
and
Longs
case
in
the
Common
Pleas
,
upon
which
cases
Justice
Iones
did
rely
.
The
fourth
reason
was
,
That
construction
ought
to
be
made
upon
the
whole
Deed
:
And
it
appeareth
by
the
context
of
the
Deed
,
That
it
was
the
meaning
of
the
parties
to
grant
the
Tithes
by
the
Deed.
Further
,
the
Exception
of
the
four
things
sheweth
,
That
it
was
the
meaning
of
the
parties
to
grant
all
things
not
excepted
,
as
the
Tithes
in
this
Case
;
For
exceptio
firmat
Regulam
;
And
to
what
purpose
should
the
Exception
be
,
if
they
did
not
intend
to
pass
all
other
things
not
excepted
?
See
4
Car.
H●skins
and
Tr●ncars
Case
,
Sir
Robert
Napwiths
Case
,
21
Iac.
cited
by
the
chief
J●●tice
to
that
purpose
.
Wherefore
it
was
agreed
by
the
whole
Court
,
that
Judgment
should
be
given
for
the
Defendant
.
And
the
Opinion
of
the
Court
was
clear
also
,
That
although
some
of
the
Tithes
had
been
in
the
Tenure
of
Margaret
Pet●e
,
that
yet
the
grant
was
good
.
And
that
was
after
Argument
upon
the
Demurrer
,
to
avoid
all
scruples
to
be
after
made
by
Counsel
;
because
it
was
conceived
,
That
some
of
the
Tithes
were
in
her
Tenure
.
Crisp
against
Prat
in
Ejectione
firme
.
67.
THe
Case
upon
the
four
Statutes
of
Bankrupts
,
viz.
34
H.
8.
13
Eliz.
1
Iac.
and
21
Iac.
was
thus
:
Ralph
Brisco
9
Iac.
purchased
Copyhold
to
him
and
his
Son
for
their
lives
,
the
Remainder
to
the
Wife
in
Fee
.
11
Iac.
he
became
an
Inholder
;
and
about
twelve
years
after
,
a
Commission
of
Bankrupt
is
obtained
against
him
;
And
thereupon
the
Copyhold-land
is
sold
by
the
Commissioners
to
the
Defendant
.
Ralph
Brisco
dieth
,
and
his
Son
Iohn
Brisco
entred
,
and
made
the
Lease
to
the
Plaintiff
:
The
Defendant
entred
upon
him
,
and
he
brought
an
Ejectione
firme
.
And
Judgment
was
given
upon
solemn
argument
by
the
Justices
for
the
Plaintiff
.
The
first
point
was
,
Whether
an
Inholder
be
a
Bankrupt
within
these
Statutes
:
And
it
was
resolved
by
all
the
Justices
,
viz.
Iones
,
Crook
,
Barckley
,
and
Bramstone
chief
Justice
,
that
an
Inholder
quatenus
an
Inholder
is
not
within
these
Statutes
:
Justice
Barckley
and
Justice
Iones
,
one
grounded
upon
the
special
Verdict
,
the
other
upon
the
Statutes
,
did
conceive
,
That
an
Inholder
in
some
cases
might
be
within
these
Statutes
.
Justice
Barckley
did
conceive
upon
this
special
Verdict
,
that
this
Inholder
was
within
them
;
because
it
is
●ound
,
That
he
got
his
living
by
buying
and
selling
,
and
using
the
Trade
of
an
Inholder
.
And
he
conceived
upon
these
words
,
Buying
and
selling
in
the
verdict
,
and
getting
his
living
thereby
,
although
that
the
Jury
have
also
found
him
an
Inholder
,
that
the
same
is
within
the
Law
.
And
he
agreed
,
That
he
who
liveth
by
buying
or
selling
,
and
not
by
both
,
is
not
within
the
Law
;
but
in
our
case
the
Jury
have
found
both
,
And
it
hath
been
adjudged
,
That
he
who
buys
and
sells
cattle
,
and
stocks
his
ground
with
them
,
that
he
may
be
a
Bankrupt
within
those
Statutes
.
I
agree
,
that
a
Scrivener
was
not
within
13
Eliz.
for
he
doth
not
live
by
buying
and
selling
,
but
by
making
use
of
the
monies
of
other
men
;
but
now
he
is
within
21
Iac.
But
in
our
case
the
Inholder
buys
his
grass
,
hay
,
and
grains
,
and
provision
also
for
his
Guests
,
and
by
selling
of
them
he
lives
.
But
he
agreed
,
That
if
the
Jury
had
found
,
that
he
was
an
Inholder
only
,
and
not
that
he
did
get
his
living
by
buying
and
selling
,
that
in
that
case
,
he
was
out
of
the
Law
:
And
for
these
reasons
,
he
did
conceive
,
That
this
Inholder
,
as
by
the
special
Verdict
is
found
,
was
within
the
Statutes
of
13
Eliz.
and
21
Iacobi
.
Justice
Iones
:
An
Inholder
may
be
,
or
not
be
within
these
Laws
upon
this
difference
.
That
Inholder
who
gets
his
living
meerly
by
buying
and
selling
(
as
many
of
the
Inholders
here
in
London
do
)
they
are
within
these
Statutes
:
But
those
who
have
Lands
of
their
own
,
and
have
hay
and
grain
and
all
their
provisions
of
their
own
,
as
many
have
in
the
Country
;
those
are
not
within
the
Statutes
.
Farther
he
said
,
That
buying
and
selling
doth
not
make
men
within
these
Statutes
,
for
then
all
men
should
be
within
the
Statutes
;
but
they
ought
to
be
meant
of
them
who
gain
the
greatest
part
of
their
living
thereby
,
and
live
chiefly
or
absolutely
thereby
.
But
Bramston
chief
Justice
,
and
Justice
Crook
were
clear
of
Opinion
,
that
an
Inholder
could
not
be
a
Bankrupt
neither
by
the
Statutes
,
nor
according
as
it
is
found
by
the
special
Verdict
.
And
their
reason
was
,
because
that
an
Inholder
doth
not
live
by
buying
and
selling
,
for
he
doth
not
sell
any
thing
,
but
utter
it
:
He
which
sells
any
thing
doth
it
by
way
of
contract
;
but
an
Inholder
doth
not
contract
with
his
Guests
,
but
provides
for
them
,
and
cannot
take
unreasonable
rates
,
as
he
who
sells
may
;
and
if
he
doth
,
he
may
be
Indicted
of
Extortion
,
which
the
seller
cannot
.
Wherefore
they
concluded
,
that
an
Inholder
is
not
within
the
Statute
of
13
Eliz.
&
1
Iac.
Justice
Crook
remembred
these
Cases
;
Webb
an
Inholder
of
Vxbridge
brewed
in
his
house
,
and
sold
his
Beer
to
his
Guests
:
And
it
was
adjudged
in
the
Exchequer
,
that
it
was
not
within
the
Statute
of
Brewers
.
And
Bedells
Case
,
who
being
a
Farmer
bought
and
sold
cattle
;
and
adjudged
,
that
he
was
not
a
Bankrupt
within
these
Statutes
.
And
he
put
th●se
cases
upon
this
reason
,
That
where
the
Statutes
said
,
Get
their
living
by
buying
and
selling
,
that
it
ought
to
b●●or
the
greater
part
;
that
they
gain
the
greater
part
of
their
living
thereby
.
And
he
said
,
that
if
a
Gentleman
buy
and
sell
Land
he
is
not
within
the
Statutes
;
for
it
ought
to
be
taken
,
those
who
buy
and
sell
personal
things
.
The
second
point
.
It
was
agreed
by
all
,
that
Copyhold
is
within
the
Statute
of
13
Eliz.
&
1
Iac.
First
,
because
it
is
no
prejudice
to
the
Lord
,
because
there
ought
to
be
composition
with
the
Lord
,
and
the
Vendee
;
And
although
the
sale
ought
to
be
by
Indenture
,
yet
the
Vendee
ought
to
be
admitted
by
the
Lord
.
And
the
difference
in
Heydons
case
in
3
Rep.
was
agreed
.
Secondly
,
It
is
expresly
within
13
Eliz.
and
therefore
within
1
Iac.
also
by
way
of
recital
,
although
the
Statute
of
1
Iac.
hath
new
provisions
.
And
by
the
Statute
of
21
Iac.
it
was
said
,
That
these
Statutes
shall
be
construed
most
beneficial
for
the
Creditors
,
because
their
ground
is
suum
cuique
tribuere
,
5
Eliz.
Dyer
.
Vmpton
and
Hides
Case
,
The
Acts
of
Explanation
shall
be
taken
most
beneficial
and
liberally
.
And
the
Statute
of
13
Eliz.
says
expresly
,
That
the
Commissioners
shall
dispose
of
Lands
,
as
well
Copy
as
Free
.
But
although
a
Copyhold
be
not
within
the
later
part
of
13
Eliz.
expresly
,
yet
by
connexion
it
is
.
And
the
Statute
of
13
Eliz.
guides
the
Statutes
1
&
21
Iacobi
.
Justice
Iones
did
agree
,
That
the
Copyhold
is
within
13
Eliz.
but
not
the
person
of
the
Copyholder
,
although
the
person
be
within
1
Iac.
And
the
chief
Justice
said
,
That
his
Opinion
was
,
that
upon
the
Statute
of
21
Iac.
which
is
,
That
these
Statutes
shall
he
taken
liberally
:
that
Copyholds
,
although
they
had
not
been
named
,
had
been
within
these
Statutes
.
It
was
said
by
Justice
Barckley
,
who
argued
for
the
Defendant
.
That
the
verdict
hath
not
found
within
13
Eliz.
because
the
verdict
hath
not
found
fraud
expresly
,
but
badges
only
thereof
.
See
Meriel
Littletons
Case
in
the
Chancellor
of
Oxfords
Case
,
That
the
Fraud
ought
to
be
expresly
found
,
but
so
it
is
not
here
;
for
here
it
is
found
,
that
the
Son
was
an
Infant
at
the
time
of
the
purchase
;
and
also
that
the
purchase
was
with
the
mony
o●
the
Father
,
which
are
only
inducements
of
Fraud
:
But
he
argued
it
was
within
1
Iac.
because
the
Father
hath
caused
o●
procured
this
conveyance
to
his
child
,
as
the
Statute
speaks
And
here
is
Fraud
apparent
,
Et
quod
constat
clarè
non
deb●verificari
,
And
therefore
if
a
man
enfeoff
his
Son
,
it
is
Fra●●
apparent
,
&
ought
not
to
be
found
particularly
.
But
it
was
resolved
by
all
the
other
Justices
,
That
here
was
not
fraud
apparent
,
and
therefore
it
ought
to
be
found
by
the
Jury
.
The
third
and
chief
point
in
this
Case
was
,
He
being
no
Inholder
at
the
time
of
the
purchase
,
and
afterwards
becoming
an
Inholder
,
whether
he
were
within
the
Statute
of
13
Eliz.
And
it
was
resolved
he
was
not
.
But
here
Justice
Barckley
,
who
argued
for
the
Defendant
,
was
against
it
.
And
he
argued
,
that
if
a
man
purchase
and
sell
,
and
afterwards
become
a
Tradesman
and
Bankrupt
,
that
that
was
not
within
the
Statute
;
but
if
he
keepeth
the
Land
in
his
hands
,
there
he
conceived
him
within
the
Statute
,
as
it
was
in
this
case
.
And
he
was
against
the
Book
of
the
Chancellor
of
Oxfords
Case
,
of
relation
to
devest
the
Advowson
;
and
he
said
,
It
is
not
like
to
the
Case
in
6
&
7
Eliz.
there
cited
.
I●
Eriches
Case
in
the
5
Rep.
there
is
a
Rule
taken
,
that
A
verbis
legis
non
est
recedendum
;
and
in
our
Case
it
is
within
the
express
words
of
the
Statute
,
which
are
,
That
if
any
person
which
hereafter
shall
become
a
Bankrupt
,
&c.
And
here
,
he
after
became
a
Bankrupt
.
But
it
was
resolved
by
the
others
,
with
whom
Justice
Barckley
did
concur
after
,
that
it
was
not
within
the
Statute
.
Justice
Crook
argued
,
That
it
is
not
within
the
words
of
the
Statute
,
which
are
,
If
the
offender
purchase
,
and
that
the
sale
shall
be
good
against
the
offender
:
and
here
,
he
was
not
offender
at
the
time
of
the
purchase
;
and
using
no
Trade
,
shall
he
be
punished
for
that
after
?
Besides
,
here
the
so●
should
be
punished
for
the
offence
of
the
Father
,
which
the
Law
of
God
will
not
suffer
.
Smith
and
Cullamers
Case
,
2
Rep.
he
ought
to
be
endebted
at
the
time
,
otherwise
he
is
no
offender
;
And
he
might
give
away
his
goods
before
he
was
in
Debt
.
And
the
mischief
here
will
be
,
That
Lands
purchased
40
years
before
should
thereby
be
defeated
.
And
I
hold
,
that
it
a
man
ba
a
Tradesman
,
and
afterwards
leaves
his
Trade
,
and
th●n
purchaseth
,
and
afterwards
becomes
a
Tradesman
again
,
and
a
Bankrupt
,
that
he
is
not
within
the
Statute
.
But
Justice
Iones
was
of
opinion
,
that
i●
he
be
a
Tradesman
at
the
time
,
although
not
an
offender
,
yet
he
is
within
the
Statute
.
But
the
chief
Justice
did
argue
,
that
he
ought
to
be
an
offender
,
and
the
thing
which
makes
him
to
be
an
offender
is
his
intent
to
defraud
his
creditors
.
Iones
:
It
shall
be
hard
in
this
Case
to
cause
the
estate
to
be
reached
by
this
Statute
,
for
perhaps
it
was
for
the
marriage
of
the
son
,
and
perhaps
the
son
might
sell
it
,
and
after
the
father
become
Bankrupt
,
it
would
be
hard
to
void
the
sale
.
The
Chancellor
of
Oxfords
case
was
a
stronger
case
,
for
there
the
party
was
Indicted
.
And
if
a
man
be
Accomptant
to
the
King
,
and
afterwards
sell
,
yet
the
sale
shall
be
avoided
by
the
King
.
But
if
he
be
not
accomptant
and
●ell●th
,
and
afterwards
becomes
Accomptant
,
the
sale
shall
not
be
defeated
.
And
here
he
became
Inholder
after
the
purchase
,
and
being
a
clear
man
at
the
time
of
the
purchase
,
he
shall
not
now
be
within
the
Statute
.
Chief
Justice
:
If
that
should
be
permitted
,
all
things
which
the
party
did
should
be
defeated
,
and
therefore
he
agreed
,
That
although
he
be
a
Tradesman
,
yet
if
he
be
not
in
debt
;
if
he
purchase
for
another
,
or
give
unto
another
,
if
no
fraud
be
found
,
it
is
not
within
the
Statutes
.
And
Judgment
accordingly
was
given
for
the
Plaintiff
.
Young
against
Fowler
.
68.
YOung
brought
an
Action
upon
the
Case
against
Fowler
for
disturbing
of
him
to
execute
the
Office
of
Register
to
the
Bishop
of
Rochester
;
and
upon
Not
guilty
,
pleaded
:
the
Jury
gave
a
special
verdict
.
They
found
that
the
Office
was
granted
by
one
Bishop
to
one
for
life
,
which
was
confirmed
by
the
Dean
&
Chapter
;
which
Bishop
died
,
and
afterwards
Iohn
Young
was
created
Bishop
.
And
then
they
found
that
the
Office
was
grantable
in
Reversion
time
out
of
mind
,
&c.
And
that
Iohn
Young
Bishop
did
grant
the
said
Office
of
Register
to
Iohn
Young
his
son
now
Plaintiff
in
Reversion
.
(
And
that
the
Office
was
to
be
executed
by
the
said
Iohn
Young
or
his
Deputy
,
which
Iohn
Young
the
son
was
but
of
the
age
of
11
years
at
the
time
of
the
Grant
;
but
they
found
that
he
was
of
full
age
before
the
Tenant
for
life
died
.
And
then
they
found
that
Iohn
Young
the
Bishop
died
;
and
that
his
Successor
granted
the
Office
to
the
Defendant
,
who
executed
many
things
concerning
the
Office
:
And
whether
upon
the
whole
matter
the
Defendant
were
a
disturber
or
not
,
was
the
Question
:
And
it
was
adjudged
by
all
the
Justices
without
any
solemn
and
open
argument
,
that
the
Defendant
was
a
disturber
:
But
the
case
was
argued
by
Counsel
on
both
sides
,
whose
arguments
and
reasons
were
briefly
following
.
Maynard
for
the
Plaintiff
;
There
are
two
points
.
1.
Whether
the
grant
be
good
within
the
Statute
of
1
Eliz.
2ly
,
Whether
the
Grant
to
an
Infant
be
good
:
And
he
held
it
was
,
because
it
was
to
be
executed
by
his
Deputy
.
The
word
of
the
Statute
of
1
Eliz.
are
,
[
Of
any
thing
belonging
to
the
Bishoprick
]
and
in
our
Case
the
Office
of
Registry
is
belonging
to
the
Bishoprick
.
The
second
doubt
is
,
Whether
the
Grant
in
Reversion
be
convenient
;
and
I
hold
it
is
,
although
not
absolutely
,
yet
necessarily
:
And
therefore
we
are
to
see
,
1.
What
conveniencie
is
requisite
;
and
2.
Whether
such
conveniencie
be
within
the
Law
:
For
that
,
it
ought
to
be
enquired
,
How
this
office
hath
used
to
be
granted
,
and
the
use
ought
to
guide
the
conveniencie
.
See
the
Bishop
of
Salisburies
Case
;
a
grant
of
an
Office
to
two
,
which
hath
not
been
used
to
be
so
granted
,
is
not
good
.
Pase
.
1
Car.
Rot.
207.
the
Bishop
of
Chichesters
Case
.
Where
the
Question
was
upon
the
usual
Grant
of
Fees
:
and
there
because
it
was
found
that
there
was
a
grant
of
greater
Fees
than
the
use
and
custome
warranted
;
It
was
adjudged
good
for
so
much
as
the
custom
did
warrant
,
and
void
for
the
residue
.
And
the
Statute
it self
speaks
of
usual
Rent
;
all
which
proves
,
That
use
ought
to
guide
the
conveniencie
.
2d
Point
,
That
the
grant
to
an
Infant
was
good
,
because
it
is
granted
to
be
executed
by
his
Deputy
.
I
grant
,
that
an
Infant
cannot
be
an
Attorney
,
because
an
Attorney
cannot
make
a
Deputy
.
And
this
Grant
is
not
inconvenient
ex
natura
rei
,
neither
to
the
Grantor
,
nor
to
the
Grantee
.
1.
It
is
not
inconvenient
ex
natura
rei
,
for
such
an
Office
is
grantable
to
one
and
his
heirs
,
which
by
possibility
may
descend
to
an
Infant
,
and
there
he
shall
execute
it
by
Deputy
;
and
the
same
inconvenience
is
in
this
Case
,
if
there
be
any
▪
And
if
the
execution
of
an
Office
may
be
by
Deputy
where
the
party
is
not
able
,
the
same
reason
is
in
this
Case
.
2.
It
is
not
inconvenient
to
the
Grantor
,
because
as
it
is
presumed
,
when
a
man
grants
an
Office
to
one
and
his
heirs
,
that
he
s●●s
that
the
same
by
possibility
may
descend
to
an
Infant
;
so
he
says
in
our
Case
,
at
the
time
of
the
grant
,
he
is
an
Infant
.
3.
It
is
not
inconvenient
to
the
Grantee
,
for
it
is
for
his
benefit
.
27
H.
8.
28.
8
E.
4.
7.
But
here
it
may
be
objected
,
That
this
Office
doth
concern
the
Commonwealth
,
and
if
the
Infant
commit
any
offence
he
shall
not
be
punished
,
because
i●
should
be
inconvenient
:
To
that
I
answer
,
that
the
Infant
ought
to
execute
it
by
his
sufficient
Deputy
,
and
he
himself
shall
be
charged
for
any
escape
,
and
by
forfeiture
of
his
Office
as
any
other
may
.
Besides
,
you
shall
never
prejudice
any
i●
praesenti
,
for
the
future
prejudice
which
by
possibility
may
happen
to
the
Commonwealth
,
10
E.
6.
14.
Stone
and
Knights
Case
.
Hill
.
3
Car.
Rot.
119.
An
Infant
was
bound
by
arbitrament
.
Trin.
3
Car.
Rot.
119.
An
Infant
was
bound
for
hi●
schooling
.
But
it
may
be
farther
objected
,
That
it
concerns
the
administration
of
Justice
,
which
an
Infant
cannot
do
.
To
which
I
answer
,
that
he
may
make
a
Deputy
,
who
ought
to
be
adjudged
sufficient
by
the
Ordinary
,
and
he
may
well
execute
it
26
H.
6.
Grants
12.
An
Infant
elected
Parson
to
serve
a
Cure
who
shall
be
examined
by
the
Ordinary
,
21
E.
4.
13.
An
Infant
may
be
Mayor
,
18
E.
3.
33.
26
E.
3.
63.
An
Infant
who
come
in
by
purchase
,
makes
him
more
liable
than
he
who
comes
i●
by
descent
.
But
in
our
Case
,
the
grant
à
fortiori
shall
be
good
because
it
is
executory
.
And
he
took
the
difference
between
an
Executory
grant
as
here
,
which
by
possibility
may
be
mad●
good
,
(
as
in
out
Case
it
was
,
because
that
the
Grantee
was
o●
full
age
before
the
Office
fell
in
possession
)
and
where
an
interest
vests
immediately
:
Farther
,
he
conceived
the
Case
the
stronger
,
because
the
Deputy
came
in
by
the
allowance
of
th●
Ordinary
.
Ward
for
the
Defendant
.
There
are
four
Questions
1.
Whether
a
grant
to
an
Infant
in
poss●ssion
be
good
.
〈◊〉
conceive
not
;
1.
quoad
naturam
rei
,
it
is
not
good
,
because
that
by
that
Grant
the
Commonwealth
is
prejudiced
.
2.
Th●
Office
doth
concern
the
administration
of
Justice
;
and
there●fore
cannot
be
granted
in
Fee
,
and
by
consequence
there
shall
be
no
descent
of
such
Judicial
Office
,
as
hath
been
objected
by
Mr.
Maynard
,
1
Rep.
I
agree
,
that
the
Grant
of
a
Parkership
to
an
Infant
is
good
and
where
it
was
objected
,
that
it
may
be
prejudicial
by
possibility
,
I
conceive
it
apparens
nocumentum
;
as
5
Rep.
101.
and
therefore
the
like
Nusance
,
as
the
case
is
there
put
,
may
be
destroyed
.
9
E.
4
,
5.
Winters
Case
,
Clerk
of
the
Crown
.
12
&
13
Eliz.
Dyer
293.
9
Rep.
96.
Mich.
40
,
41
Eliz.
Scamblers
case
;
It
was
adjudged
,
That
an
Infant
is
not
capable
of
a
Stewardship
of
a
Mannor
;
and
the
reason
is
,
because
that
thereby
the
Tenants
may
be
prejudiced
;
so
in
our
Case
the
Commonwealth
.
Trin.
13
Car.
Rot.
493.
our
very
case
in
the
Common
Pleas
,
was
adjudged
.
Further
,
an
Infant
is
not
capable
of
this
Office
,
because
Misfeasans
&
Nonfeasans
may
be
,
and
he
shall
not
be
punished
for
it
;
for
an
Infant
at
the
Common
Law
,
is
not
liable
to
an
Action
of
Wast
,
or
an
Action
upon
the
case
.
8
Rep.
95.
Doct.
&
Stud.
The
2.
Question
,
Whether
the
Grant
to
him
and
his
Deputy
,
make
the
Grant
good
:
I
hold
it
doth
not
.
7
Eliz.
Dyer
238.
b.
9
Rep.
38.
10
E.
4.
1.
39
H.
6.
54.
The
Officer
is
chargeable
for
his
Deputy
,
and
not
the
Deputy
himself
:
And
if
it
be
so
,
if
this
Grant
should
be
good
,
here
should
be
a
Misdemeanor
in
the
Office
,
and
none
should
be
punished
for
it
;
which
should
be
inconvenient
:
for
the
Deputy
cannot
be
charged
,
nor
the
Officer
in
our
Case
,
because
he
is
an
Infant
,
and
therefore
the
Grant
is
not
good
.
The
3.
Quest.
Whether
this
subsequent
Act
of
the
Infant
coming
of
full
age
,
before
the
falling
of
the
Office
into
possession
,
hath
made
the
Grant
good
.
I
hold
,
that
not
,
upon
the
common
Rule
,
Quod
initio
non
valet
,
&c.
So
is
the
Bishop
o●
Salisburies
Case
,
Sir
George
Reignalls
Case
,
and
27
H.
6.
10.
The
4.
Question
,
Whether
this
Grant
in
Reversion
to
a
man
of
full
age
,
be
good
at
the
Common
Law
?
and
I
hold
it
is
not
;
because
it
is
a
judicial
Office
,
which
is
not
grantable
in
Reversion
:
with
which
agrees
11
Rep.
Auditor
Curles
Case
.
The
5
Question
,
Whether
it
be
within
the
Statute
of
1
Eliz.
And
I
hold
it
is
not
,
because
that
must
take
effect
from
the
time
of
the
granting
of
it
,
as
the
Statute
speaks
.
6.
I
conceive
it
is
not
a
necessary
Grant
,
because
it
is
not
within
the
exception
of
the
Statute
,
Et
exceptio
firmat
Regulam
.
It
was
objected
,
That
Usage
makes
these
Grants
good
.
I
conceive
the
contrary
,
That
Usage
is
not
a
Rule
to
measure
a
thing
,
whether
it
be
convenient
or
not
.
And
a
grant
may
be
good
,
which
is
not
used
.
And
the
Courts
of
Justice
ought
to
judge
what
is
convenient
or
necessary
,
and
what
not
.
So
in
Litt.
and
the
Commentaries
,
Say
and
Smiths
case
.
Besides
,
it
is
not
Necessary
,
for
he
stands
but
for
a
Cypher
,
and
doth
nothing
,
and
therefore
not
Necessary
.
Besides
,
it
is
inconvenient
,
and
takes
from
the
Successor
honorem
munificentiae
,
for
by
the
same
reason
that
he
may
grant
one
,
he
may
grant
all
the
Offices
in
Reversion
,
so
as
his
Successors
shall
not
have
one
to
grant
;
and
by
this
means
shall
take
away
a
flower
of
the
Bishoprick
.
10.
Rep.
61.
a.
The
Opinion
of
Popham
Chief
Justice
:
An
Office
is
not
Grantable
in
Reversion
by
the
Bishop
.
But
the
Court
was
clear
of
Opinion
,
without
Argument
for
the
Plaintiff
,
That
the
Grant
is
good
.
Crooke
he
denied
that
such
an
Office
is
not
grantable
in
Fee
,
and
instanced
in
the
Ushers
Office
and
Chamberlains
of
the
Exchequer
,
which
are
Judicial
Offices
,
and
yet
granted
in
Fee
:
And
it
was
denied
that
this
is
an
Office
of
Judicature
,
but
Ministerial
only
.
To
that
which
was
objected
,
That
the
Action
doth
not
lie
against
an
Infant
;
It
was
answered
,
That
an
Action
upon
the
case
doth
lie
against
an
Infant
Executor
;
an
Action
upon
the
Case
will
lie
against
an
Infant
for
a
Nusance
,
or
for
words
,
by
the
common
Law
.
And
in
our
Case
he
shall
forfeit
his
Office
.
An●
Infant
may
be
Executor
,
in
which
greater
confidence
and
trust
is
reposed
;
and
in
our
Case
the
Grant
to
an
Infant
is
not
void
ab
initio
,
but
voidable
only
upon
contingent
;
And
〈◊〉
conceive
,
that
if
the
usage
will
warrant
it
,
That
he
may
grant
all
the
Offices
in
Reversion
:
and
upon
that
difference
depends
the
Opinion
of
Popham
,
in
the
10.
Rep.
for
there
it
doth
not
appear
,
that
the
Custom
was
to
grant
in
Reversion
:
And
therefore
it
was
not
good
.
Barckley
:
The
King
may
grant
i●
Reversion
without
any
Custom
.
9
Eliz.
Savages
Case
.
And
there
is
no
question
,
but
that
Custom
may
make
an
Office
grantable
in
Reversion
,
in
the
case
of
a
common
person
.
1
H.
7.
Crofts
case
.
Also
the
case
of
the
Usher
of
the
Exchequer
granted
in
Fee
.
And
there
is
no
question
,
but
a
Judicial
Office
may
be
granted
to
one
and
his
Heirs
.
And
the
Office
of
Warden
of
the
Fleet
,
which
is
an
Office
of
great
trust
,
is
granted
in
Fee
.
And
as
such
Offices
may
descend
to
an
Infant
;
so
a
Feme
covert
may
have
such
an
Office
,
for
she
may
have
a
husband
who
may
execute
it
;
and
so
an
Infant
may
have
a
deputy
.
7
H.
6.
There
is
a
difference
amongst
Infants
;
an
Infant
,
before
the
Statute
of
10
Eliz.
might
have
been
Presented
to
a
Benefice
,
and
he
was
Parson
de
facto
.
So
a
meer
Lay
man
:
but
the
same
ought
to
be
understood
of
an
Infant
who
was
of
age
of
discretion
.
A
Preb●ndary
was
granted
to
Prideaux
,
at
the
age
of
3
years
,
and
was
adjudged
void
,
because
he
was
not
of
age
of
discretion
;
but
if
he
had
been
,
it
had
been
good
.
And
I
conceive
,
that
it
is
necessary
and
convenient
that
it
should
be
granted
in
Reversion
,
for
by
that
means
the
Office
would
never
be
vacant
,
and
should
be
always
provided
of
those
who
were
sufficient
to
execute
it
.
So
in
our
Case
the
Infant
may
be
instruct●d
before
he
come
of
full
age
.
And
farther
,
as
an
Infant
when
he
is
Presented
,
is
to
be
allowed
or
disallowed
by
the
Ordinary
;
so
the
Deputy
is
by
the
Court
.
The
Statute
of
1
El.
makes
against
you
;
for
although
it
be
not
within
it
,
yet
it
may
be
good
at
the
common
Law
,
like
the
concurrent
Lease
,
which
is
good
at
the
common
Law
,
and
not
within
the
Statute
of
1
Eliz.
The
rest
of
the
Justices
did
all
agree
with
Barckley
.
And
Justice
Iones
said
,
that
Scamblers
Case
,
cited
by
my
Lord
Coke
in
Institutes
3.
b.
was
adjudged
contrary
,
That
an
Infant
was
capable
of
a
Stewardship
in
Reversion
;
and
he
said
that
it
was
adjudged
in
the
Exchequer
,
that
an
Ignorant
man
was
capable
of
an
Office
in
Reversion
;
which
doth
not
differ
from
our
Case
.
Sir
John
Saint-Johns
Case
.
69.
THe
Lady
Cromwell
was
possessed
of
divers
Leases
,
and
conveyed
them
in
trust
,
and
afterwards
married
with
the
said
Sir
Iohn
Saint-Iohn
;
and
afterwards
she
received
the
mony
which
came
of
the
trust
,
and
with
part
of
it
she
bought
Jewels
,
and
part
she
left
in
Mony
,
and
died
.
And
Sir
Iohn
Saint-Iohn
took
Letters
of
Administration
of
the
goods
of
the
Wife
:
And
the
Ecclesiastical
Court
would
make
him
accomptable
for
the
Jewels
,
and
for
the
Mony
;
and
to
put
them
into
an
Inventory
.
And
the
Opinion
of
the
Court
was
,
That
he
should
not
put
them
into
the
Inventory
,
because
the
property
is
absolutely
in
the
husband
,
&
he
hath
them
not
as
Administrator
;
but
things
in
action
he
shall
have
as
Administrator
,
and
shall
be
accomptable
for
them
:
and
in
that
case
a
Prohibition
was
granted
as
to
the
Mony
.
It
was
moved
again
this
Term
,
That
the
Lady
Saint-Iohn
did
receive
part
of
the
Mony
,
put
it
out
,
and
took
Bonds
for
it
in
the
names
of
others
,
to
her
use
;
and
the
Spiritual
Court
would
have
him
accompt
for
that
,
and
thereupon
a
Prohibition
was
prayed
;
but
the
Court
would
not
grant
it
.
And
there
Barckley
differed
in
Opinion
,
and
so
did
the
Court
,
some
being
for
it
,
and
some
against
it
.
The
reason
given
wherefore
the
Prohibition
should
not
be
granted
,
was
,
because
the
Mony
received
upon
the
trust
,
is
in
Law
,
the
Monies
of
the
Trustees
,
and
the
wife
hath
no
remedy
for
it
,
but
in
Court
of
Equity
;
and
therefore
that
the
husband
should
have
it
as
Administrator
.
The
reason
urged
wherefore
the
Prohibition
should
be
granted
,
was
,
because
here
the
trust
was
executed
,
when
the
wife
had
received
the
Mony
,
and
by
the
Receipt
the
husband
had
gained
property
therein
as
husband
,
and
therefore
should
not
be
accomptable
for
it
.
Farther
,
here
the
Ecclesiastical
Court
should
determine
the
trust
,
of
which
they
have
no
Jurisdiction
,
for
they
have
not
a
Court
of
Equity
.
And
the
Court
ruled
,
That
the
Counsel
should
move
in
Chancery
for
a
Prohibition
,
for
in
Equity
the
mony
did
belong
to
the
wife
.
And
here
it
was
agreed
,
That
if
the
Trustees
consent
that
the
wife
shall
receive
the
mony
,
as
in
our
Case
the
contrary
doth
not
appear
,
that
there
the
husband
might
gain
a
property
as
husband
;
but
because
the
Court
conceived
,
that
the
Ecclesiastical
Court
had
not
Jurisdiction
,
a
Prohibition
was
granted
.
And
here
it
was
agreed
,
That
if
a
woman
do
convey
a
Lease
in
trust
,
for
her
use
,
and
afterwards
marrieth
,
that
in
such
case
,
it
lies
not
in
the
power
of
the
husband
to
dispose
of
it
;
and
if
the
wife
die
,
the
husband
shall
not
have
it
,
but
the
Executor
of
the
wife
;
and
so
it
was
said
,
it
was
resolved
in
Chancery
.
70.
Barckley
and
Crooke
,
there
being
no
other
Justice
at
that
time
in
Court
,
said
,
That
upon
a
Petition
to
the
Archbishop
,
or
any
other
Ecclesiastical
Court
,
no
Prohibition
lieth
.
But
there
ought
to
be
a
Suit
in
the
Ecclesiastical
court
.
And
by
them
,
a
Libel
may
be
in
the
Ecclesiastical
court
,
for
not
repairing
a
way
that
leadeth
to
Church
,
but
not
for
repairing
of
a
high-way
:
and
upon
suggestion
that
the
Libel
was
for
repairing
a
high-way
,
a
Prohibition
was
granted
.
71.
Many
Indictments
were
exhibited
severally
,
against
several
men
,
because
each
by
himself
,
suffered
his
door
to
be
unrepaired
,
and
it
was
shewed
in
the
Indictments
,
that
every
one
of
them
ought
to
repair
:
And
thereupon
it
was
moved
,
that
they
might
be
quashed
;
but
the
Court
would
not
quash
them
without
certificate
,
that
the
parties
had
repaired
their
doors
;
but
it
was
granted
,
that
Process
should
be
stayed
,
upon
motion
of
Counsel
that
reparation
should
be
immediately
done
.
But
at
the
same
time
,
many
Indictments
,
for
not
repairing
of
the
high-way
,
which
the
Parishioners
ought
to
have
repaired
,
according
as
it
was
found
by
Verdict
,
the
same
Term
were
quashed
for
the
same
defect
:
But
in
truth
,
there
was
another
fault
in
the
Indictment
,
for
that
it
was
joynt
one
only
,
whereas
there
ought
to
have
been
several
Indictments
;
but
they
were
quashed
for
the
first
defect
.
72.
A
Replevin
was
brought
in
an
Inferiour
Court
,
and
no
Pledges
de
retorno
habendo
,
were
taken
by
the
Sheriff
,
according
to
the
Statute
of
West
.
2.
c.
2.
After
the
Plaint
was
removed
into
this
Court
by
a
Recordari
,
and
after
Verdict
given
,
it
was
moved
in
arrest
of
Judgment
,
want
of
Pledges
;
for
th●se
reasons
,
because
the
Pledges
de
retorno
habendo
,
are
given
by
that
Statute
,
as
2
H.
6.
15.
and
9.
H.
6.
42.
b.
And
that
Statute
saith
,
That
Pledges
shall
be
taken
by
the
Sheriff
,
and
therefore
no
other
can
take
them
,
notwithstanding
that
Pledges
might
be
found
here
in
Court
.
And
3
H.
6.
3.
and
F.
N.
B.
72.
a.
say
,
That
where
Pledges
are
found
,
that
they
shall
remain
,
notwithstanding
the
removal
of
the
Plaint
by
Recordari
:
and
the
reason
is
,
because
the
Sheriff
is
a
special
Officer
,
chosen
to
that
purpose
by
the
Statute
,
and
therefore
no
other
can
take
them
.
Besides
,
there
would
be
a
failer
of
Justice
,
if
the
Court
should
put
in
Pledges
,
for
then
there
might
be
no
remedy
against
the
Sheriff
,
for
that
he
found
no
Pledges
,
and
no
remedy
against
the
Pledges
,
because
they
are
not
found
according
to
the
Statute
,
and
so
a
failer
of
Justice
;
and
by
that
means
the
Sheriff
should
frustrate
and
avoid
the
Statute
;
for
no
Pledges
should
ever
be
found
,
and
so
he
should
take
advantage
of
his
own
laches
and
wrong
.
Farther
,
it
was
objected
,
that
these
proceedings
are
the
judicial
act
of
the
Court
,
and
therefore
the
Court
will
not
alter
or
diminish
them
.
L.
Entries
1.
and
3
H.
6.
And
farther
,
it
was
said
,
That
the
cases
of
Young
and
Young
,
and
Dr.
Hussies
case
,
adjudged
in
this
Court
,
That
Pledges
may
be
found
at
any
time
before
Judgment
were
,
in
Action
upon
the
Case
,
and
not
in
Replevine
,
as
our
case
is
,
for
which
there
is
special
Provision
made
by
the
Statute
.
But
it
was
answered
,
and
agreed
by
the
whole
Court
,
that
Pledges
may
be
found
by
this
Court
:
for
the
Pledges
given
by
the
Statute
of
West
.
2.
are
only
to
give
remedy
against
the
Sheriff
;
and
if
the
Sheriff
do
not
his
duty
,
but
surceaseth
,
we
may
as
at
the
Common
Law
put
in
Pledges
,
and
yet
notwithstanding
remedy
may
be
against
the
Sheriff
upon
the
Statute
for
his
neglect
.
And
farther
it
was
agreed
,
That
Pledges
may
be
found
at
any
time
before
Judgment
,
as
in
Young
and
Youngs
Case
,
and
Dr.
Hussies
Case
it
was
adjudged
:
And
Judgment
was
affirmed
.
73.
There
can
be
no
second
Execution
granted
out
,
before
that
the
first
be
returned
.
74.
Two
Joyntenants
of
a
Rectory
agree
with
some
of
their
Parishioners
,
that
they
shall
pay
so
much
for
Tithes
:
and
notwithstanding
,
one
of
th●m
sueth
for
Tithes
in
the
Ecclesiastical
court
;
and
a
Prohibi●ion
was
prayed
,
because
that
one
of
them
cannot
sue
without
the
other
;
and
the
Court
would
not
grant
it
:
and
their
reason
was
,
because
although
that
one
of
them
cannot
sue
without
the
other
by
our
Law
;
yet
perhaps
,
the
spiritual
Court
will
permit
it
.
75.
Husband
and
Wife
brought
a
Writ
of
conspiracie
,
and
it
was
adjudged
that
it
would
not
lie
.
And
Iones
cited
this
case
,
That
Husband
and
Wife
brought
an
Action
upon
the
Case
against
another
for
words
,
viz.
That
the
Husband
and
Wife
had
bewitched
another
;
and
it
was
not
good
,
because
that
the
wife
cannot
joyn
for
Conspiracie
made
against
the
husband
,
nor
for
trespass
of
Battery
,
as
the
Book
is
,
9
E.
4.
But
Justice
Crook
was
of
Opinion
▪
That
the
Conspiracie
would
well
lie
,
because
that
the
Indictment
was
matter
of
Record
,
and
therefore
not
meerly
Personal
:
but
the
whole
Court
was
against
him
:
and
Justice
Barckley
took
the
difference
,
where
they
sue
for
Per●onal
wrong
done
to
th●m
,
there
they
shall
not
joyn
;
but
wher●
they
have
a
joyn●
Interest
,
as
in
case
of
a
Quare
impedit
,
there
they
shall
joyn
.
Thurston
against
Ummons
in
Error
to
Reverse
a
Iudgment
in
Bristow
.
76.
THurston
brought
an
Action
upon
the
Case
against
Vmmons
,
&
declared
,
That
the
Defendant
brought
an
Action
against
him
,
at
the
Suit
of
Hull
,
&
without
his
privity
:
And
thereupon
did
arrest
and
imprison
the
Plaintiff
,
by
reason
whereof
all
his
Creditors
came
upon
him
,
and
thereby
that
he
had
lost
his
Credit
,
&c.
And
a
Verdict
was
found
for
the
Plaintiff
,
and
thereupon
Error
brought
;
and
two
Errors
were
alledged
.
1.
That
the
Action
will
not
lie
,
because
in
truth
there
was
a
just
Debt
due
to
Hull
,
in
whose
name
he
sued
.
2.
Because
it
is
not
shewed
,
that
the
causes
of
Actions
,
which
the
other
Creditors
had
against
him
,
did
arise
within
the
Jurisdiction
of
the
Court
of
Bristow
.
And
notwithstanding
the
first
Error
alledged
,
Judgment
was
affirmed
by
the
whole
Court
upon
this
difference
;
where
Hull
himself
sueth
or
commenceth
Suit
against
the
Plaintiff
,
there
although
by
that
Suit
he
draw
all
the
Creditors
upon
the
back
of
him
,
and
so
perhaps
undo
him
,
yet
because
it
was
a
lawful
act
;
no
Action
upon
the
Case
lieth
against
him
:
But
where
one
commenceth
Suit
against
another
,
in
the
name
of
another
,
and
without
his
privity
,
that
is
Maintenance
,
which
is
a
tortious
Act
,
and
therefore
an
Action
will
lie
:
so
in
the
principal
case
.
As
to
the
second
Error
alledged
,
the
Court
differed
in
Opinion
.
Barkley
:
That
the
damages
were
ill
assessed
,
because
they
were
given
aswel
for
the
Actions
brought
by
the
other
Creditors
.
But
Justice
Bramston
contrà
,
That
the
damages
were
well
assessed
,
because
that
the
Actions
brought
by
the
Creditors
were
added
for
aggravation
only
,
and
the
cause
of
the
Action
was
the
Arrest
and
Imprisonment
,
like
the
case
where
a
man
speaks
words
which
are
in
part
actionable
,
and
others
only
put
in
for
aggravation
,
and
damages
is
assessed
for
the
whole
,
it
is
good
.
There
was
a
third
Error
assigned
,
That
the
Venire
facias
was
,
de
Warda
omnium
Sanctorum
de
Bristow
,
without
shewing
in
what
Parish
.
Childe
against
Greenhil
.
77.
CHilde
brought
Trespass
against
Greenhill
for
Fishing
in
seperali
piscaria
of
the
Plaintiff
,
and
declared
that
the
Defendant
pisces
ipsius
cepit
,
&c.
And
Verdict
found
for
the
Plaintiff
.
And
it
was
moved
by
Saint-Iohn
in
Arrest
of
Judgement
,
because
the
Plaintiff
declared
of
taking
of
pisces
suos
,
whereas
the
Plaintiff
,
they
being
ferae
naturae
,
hath
not
property
in
them
.
Register
94
,
95.
and
F.
N.
B.
and
Book
Entries
.
666.
No
count
,
that
the
Defendant
cepit
pisces
ipsiu●
,
but
ad
valentiam
,
&c.
without
ipsius
.
So
Fines
Case
in
Dyer
.
7
H.
6.
36.
10
H.
7.
6.
12
H.
8.
10.
by
Brudnell
.
13
E.
4.
24.
7
Rep.
case
of
Swannes
.
And
the
Book
of
22
H.
6.
59.
is
over-ruled
by
the
case
of
Swannes
.
34
H.
6.
24.
And
the
same
is
matter
of
substance
,
and
therefore
not
helped
after
Verdict
.
An
Action
of
Trover
and
Conversion
against
husband
and
wife
quia
converterunt
,
is
not
good
,
and
it
is
not
helped
after
Verdict
,
because
it
is
matter
of
substance
.
Rolls
for
the
Defendant
;
I
agree
,
that
lepores
suos
,
or
pisces
suos
,
without
any
more
,
is
not
good
.
But
where
he
brings
an
Action
of
Trespass
for
taking
them
in
his
Soil
,
there
it
is
good
,
because
it
is
within
his
Soil
.
So
in
our
case
,
for
taking
pisces
suos
in
his
several
Piscary
:
and
with
this
difference
agree
22
H.
6.
59.
43
E.
3.
24.
so
Regist.
93
,
&
102.
23
H.
6.
tit
.
Tresp
.
59.
&
14
H.
8.
1.
and
the
Book
of
43
E.
3.
saith
,
That
in
Trespass
,
the
Writ
shall
not
say
,
Damam
suam
,
if
he
do
not
say
,
that
it
was
taken
in
his
Park
or
Warren
,
or
saith
damam
domitam
,
or
as
the
Book
is
in
22
H.
6.
in
my
Soil
or
Land
;
and
by
Newton
,
he
shall
say
there
damas
suis.
And
admit
that
it
was
not
good
,
yet
I
hold
,
that
it
is
helped
after
Verdict
,
because
it
is
not
matter
of
Substance
;
for
whether
they
be
pisces
suos
or
not
,
the
Plaintiff
shall
recover
damages
.
Justice
Barckly
:
It
is
true
,
that
in
a
general
sense
they
cannot
be
said
pisces
ipsius
,
but
in
a
particular
sense
they
may
;
and
a
man
may
have
a
special
or
qualified
property
in
things
which
are
ferae
naturae
,
three
ways
;
ratione
infirmitatis
,
ratione
loci
,
&
ratione
privilegii
:
and
in
our
case
the
Plaintiff
●ath
them
by
reason
of
Priviledge
.
And
it
was
agreed
by
the
whole
Court
,
That
Judgment
should
be
affirmed
,
upon
the
very
difference
taken
by
Rolls
,
that
where
a
man
brings
Trespass
for
taking
pisces
suos
,
or
lepores
suos
,
&c.
and
the
like
,
that
the
Action
will
not
lie
.
But
if
he
bring
Trespass
for
fishing
in
his
several
Piscary
,
as
in
our
Case
,
or
for
breaking
of
his
Close
,
and
taking
lepores
suos
,
&c.
there
it
will
lie
.
Pitfield
against
Pearce
.
78.
IN
an
Ejectione
firme
,
the
Case
was
thus
.
Thomas
Pearce
the
Father
,
was
seised
of
Lands
in
Fee
,
and
by
Deed
,
in
consideration
of
Marriage
,
did
give
and
grant
this
Land
to
Iohn
Pearce
,
the
now
Defendant
,
his
second
Son
,
and
to
his
Heirs
after
his
death
,
and
no
Livery
was
made
:
Thomas
Pearce
died
,
the
Eldest
Son
entred
,
and
made
a
Lease
to
the
Plaintiff
,
who
entred
,
and
upon
Ejectment
by
the
Defendant
,
brought
an
Ejectione
firme
.
Twisden
:
The
only
question
is
,
whether
any
estate
passeth
to
the
Son
by
the
Deed
;
and
it
was
said
,
there
did
,
and
that
by
way
of
Covenant
.
And
it
was
agreed
,
That
in
this
Case
if
Livery
had
been
made
it
had
been
void
,
because
that
a
Freehold
cannot
begin
at
a
day
to
come
.
But
I
may
Covenant
to
stand
seised
to
the
use
of
my
Son
after
my
death
.
So
a
man
may
surrender
a
Copyhold
,
to
take
effect
after
a
day
to
come
.
Com.
301.
So
a
man
may
bargain
and
sell
at
a
day
to
come
.
1
Mar.
Dyer
.
96.
Chudleighs
Case
.
129.
20
H.
6.
10.
A
use
is
but
a
trust
betwixt
the
parties
,
and
7
Rep.
400.
There
need
not
express
words
of
Covenant
,
to
stand
seised
to
an
use
.
25
Eliz.
Blithman
and
Blithmans
case
,
8
Rep.
94.
Besides
,
these
words
dedi
&
concessi
,
are
general
words
,
and
therefore
may
comprehend
Covenant
:
and
words
shall
be
construed
,
that
the
Deed
may
stand
,
if
it
may
be
.
8
Ass.
34.
7
E.
3.
9.
But
I
agree
,
that
if
the
intent
appeareth
that
it
shall
pass
by
transmutation
of
possession
,
that
there
it
shall
be
so
taken
;
but
here
his
intent
doth
not
appear
to
be
so
,
for
if
there
should
be
Livery
,
then
the
son
should
take
nothing
,
for
the
reason
before
given
,
which
is
against
his
meaning
.
Mich.
21
Iac.
Rot.
2220.
Buckler
and
Simons
Case
.
Dyer
202.
Vinions
case
.
The
cases
cited
before
,
are
in
the
future
tense
,
but
the
words
are
here
,
I
give
,
&c.
36
Eliz.
Callard
and
Callards
Case
;
Stand
forth
Eustace
,
reserving
an
estate
to
my self
and
my
wife
,
I
do
give
thee
my
Land
:
and
the
better
Opinion
was
,
That
in
that
case
it
did
amount
to
a
Livery
,
being
upon
the
Land
,
for
his
intent
is
apparent
.
Mich.
41
&
42
Eliz.
Trelfe
and
Popwells
Case
,
adjudged
in
such
case
,
That
an
use
shall
be
raised
:
For
which
it
was
concluded
,
that
in
this
case
there
is
a
good
estate
raised
to
Iohn
Pearce
by
way
of
Covenant
.
Rolls
:
I
conceive
,
that
not
estate
is
raised
to
Iohn
Pearce
by
this
conveyance
.
It
was
objected
,
That
it
shall
inure
by
way
of
Covenant
,
to
raise
an
use
.
I
agree
,
that
if
the
meaning
of
the
party
may
appear
that
he
intended
to
pass
his
estate
by
way
of
raising
of
an
use
,
otherwise
not
.
And
here
is
no
such
appearance
.
Foxes
Case
in
8
Rep.
is
a
stronger
case
;
and
here
it
doth
not
appear
that
he
meant
to
pass
it
by
way
of
use
.
But
by
the
word
[
give
]
he
intended
transmutation
of
possession
.
8
Rep.
Bedells
case
,
Mich.
18.
Car.
Rot.
2220.
in
the
Common
Pleas
it
was
adjudged
,
That
a
gift
of
a
Remainder
after
the
death
of
the
grantor
was
void
;
wherefore
he
concluded
for
the
Plaintiff
,
and
so
Judgment
was
given
by
the
whole
Court
.
And
Justice
Iones
said
,
When
a
man
makes
a
doubtful
Conveyance
,
it
shall
be
intended
a
Conveyance
at
the
Common
Law
.
And
it
shall
not
be
intended
that
the
Father
would
make
him
Tenant
for
life
only
punishable
of
wast
.
Mich.
15ᵒ
Car'
in
the
Kings
Bench.
79.
IT
was
moved
for
a
Prohibition
to
the
Counsel
of
the
Marches
,
and
the
Case
was
such
:
A
man
seised
of
Lands
in
Fee
,
made
a
Feoffment
to
the
use
of
himself
for
life
,
the
remainder
in
tail
to
I.
S.
He
in
the
remainder
Levied
a
Fine
.
And
the
Counsel
of
the
Marches
,
upon
a
surmise
,
That
the
Tenant
for
life
died
seised
,
according
to
their
Instructions
,
would
settle
the
possession
upon
the
heir
of
Tenant
for
life
,
against
the
Conusee
.
For
their
Instructions
were
made
,
That
where
a
man
had
the
possession
by
the
space
of
three
years
,
that
the
same
should
be
settled
upon
him
,
until
trial
at
Law
were
had
.
But
the
whole
Court
was
against
it
,
because
it
doth
appear
that
he
had
but
an
estate
for
life
,
and
so
the
possession
appertained
to
him
in
the
remainder
.
And
here
it
was
said
by
Justice
Barckley
,
that
their
Opinion
hath
been
,
That
the
possession
of
Tenant
for
life
should
be
the
possession
of
him
in
the
Remainder
,
as
to
this
purpose
.
Note
that
the
Principal
case
here
was
(
although
the
Case
before
put
was
also
agreed
for
Law
)
thus
:
Tenant
in
Tail
levied
a
Fine
,
to
the
use
of
himself
for
Life
,
the
remainder
in
Fee
to
I.
S.
and
died
:
In
that
Case
the
Council
in
the
Marches
would
settle
the
possession
upon
the
heir
of
Tenant
in
tail
,
against
the
Purchaser
,
who
held
in
by
the
Fine
which
had
bar'd
the
estate
tail
,
by
which
the
Issue
claimed
;
and
the
whole
Court
was
against
it
,
for
which
cause
a
Prohibition
was
granted
.
80.
Habeas
corpora
was
directed
to
the
Porter
of
Ludlore
,
to
bring
the
bodies
of
Iohn
Shielde
and
William
Shielde
into
the
Kings
Bench
;
the
case
shortly
(
as
appears
upon
the
retorn
)
was
this
.
Powell
the
Father
brought
a
Bill
,
in
the
nature
of
an
Information
,
against
the
said
Iohn
and
William
Shield
,
before
the
Council
of
the
Marches
in
Wales
,
for
an
unlawful
Practice
,
Combination
,
and
Procurement
of
a
clandestine
Marriage
in
the
night
,
betwixt
Mary
Shield
a
Maid-servant
,
and
the
Son
of
Powell
,
who
was
a
Gentleman
of
good
credit
and
worth
,
the
Parson
also
being
Drunk
,
as
he
himself
sware
,
and
the
same
also
being
without
Banes
or
Licence
;
for
which
offence
they
were
severally
Fined
to
the
King
,
and
an
hundred
Marks
damages
given
to
the
Plaintiff
,
and
farther
ordered
by
the
Council
,
that
they
should
be
imprisoned
till
they
paid
their
several
fines
to
the
King
,
and
damages
to
the
Party
,
and
found
Sureties
to
be
bound
in
Recognisance
for
their
good
behaviour
,
for
one
year
,
and
till
they
knew
the
farther
Order
of
the
Council
:
and
these
were
the
causes
which
were
retorned
.
And
upon
this
retorn
,
Glynn
,
who
was
of
Counsel
with
the
Prisoners
,
moved
many
things
;
and
many
of
them
,
as
was
conceived
by
the
Court
,
altogether
impertinent
.
But
the
Objections
which
were
pertinent
were
these
.
First
,
That
the
Councel
of
the
Marches
,
as
this
case
is
,
have
no
Jurisdiction
,
because
the
clandestine
Marriage
is
a
thing
meerly
Spiritual
,
and
therefore
not
within
their
instructions
.
The
second
was
,
That
they
have
exceeded
their
Instructions
,
in
that
they
have
given
damages
to
the
party
above
fifty
pounds
.
For
by
their
Instructions
,
they
ought
not
to
hold
Plea
where
the
Principal
or
Damages
exceed
fifty
pounds
.
But
as
to
the
first
he
said
,
there
may
be
this
Objection
▪
That
they
did
not
punish
them
for
the
clande●●in●
.
Marriag●
which
in
truth
is
a
thing
meerly
Spiritual
,
but
for
the
unlawful
Practise
and
Combination
,
and
for
the
execution
of
it
.
To
which
he
answered
,
That
they
have
not
Juristiction
of
the
Principal
,
and
therefore
not
of
the
Accessory
:
(
here
note
that
it
was
afterwards
said
by
Bramston
Chief
Justice
,
That
the
unlawful
Practise
and
Combination
was
the
Principal
,
and
the
clandestine
Marriage
but
the
Accessory
;
which
was
not
contradicted
by
any
.
)
Farther
,
it
was
objected
by
Glynn
,
That
they
were
Imprisoned
for
the
damages
of
the
Plaintiff
,
and
it
doth
not
appear
,
whether
it
was
at
the
Prayer
of
the
Party
,
as
he
ought
by
the
Law
.
Bankes
,
the
Kings
Atturny-General
contrary
.
And
as
to
the
first
,
Their
Instructions
give
them
power
to
hold
Plea
of
unlawful
Practises
and
Assemblies
:
And
this
is
an
unlawful
Practise
and
Assembly
,
and
therefore
within
their
Instructions
:
And
although
that
Heresie
,
and
clandestine
Marriage
,
and
such
offences
,
per
se
are
not
within
their
Instructions
,
yet
being
clad
with
such
unlawful
circumstances
and
practises
,
they
are
punishable
by
them
.
As
to
the
second
he
said
,
The
Instruction
which
restraineth
them
that
they
do
not
hold
Plea
above
fifty
pounds
,
is
only
in
civil
Actions
,
at
the
several
suit
of
the
party
:
But
there
is
another
Instruction
,
which
gives
them
power
,
where
the
cause
is
criminal
,
to
assess
damages
according
to
the
quality
of
the
Offence
,
and
at
their
discretions
.
As
to
the
third
Objection
,
he
said
,
That
the
Retorn
,
being
that
they
were
in
execution
for
the
damages
,
it
ought
to
be
meant
at
the
Prayer
of
the
Party
,
otherwise
it
could
not
be
.
For
which
causes
he
prayed
th●●
the
Prisoners
might
be
remanded
.
And
the
whole
Court
(
Crooke
being
absent
)
were
clear
upon
this
Retorn
,
That
they
should
be
remanded
;
because
it
appeareth
that
their
Fines
to
the
King
were
not
payed
:
And
therefore
,
although
that
the
other
matters
had
been
adjudged
for
them
,
yet
they
ought
to
be
remanded
for
that
one
.
And
as
to
the
Objections
which
were
made
,
the
Court
agreed
with
Mr.
Attorney
,
except
in
the
point
of
Damages
,
and
for
the
same
reasons
given
by
him
.
But
as
to
the
point
of
the
Damages
,
whether
they
have
gone
beyond
their
Instructions
,
and
so
exceeded
their
power
in
giving
above
fifty
pounds
damages
or
not
;
It
seemed
to
the
Court
they
had
;
and
as
it
seemed
to
them
,
if
the
Retorn
had
been
,
That
the
Kings
Fines
were
paid
,
it
would
have
been
hard
to
maintain
that
the
assessing
above
fifty
pounds
damages
,
was
not
out
of
their
Instructions
:
but
because
the
Kings
Fines
were
not
paid
,
they
were
Remanded
,
without
respect
had
thereunto
;
for
the
reasons
given
before
.
81.
It
was
said
by
the
Court
,
That
when
Judgment
is
given
in
this
Court
against
another
,
and
Execution
upon
it
,
and
the
Sheriff
levieth
the
mony
;
the
Lord
Keeper
cannot
order
that
the
mony
shall
stay
in
the
Sheriffs
hands
,
or
order
that
the
Plaintiff
shall
not
call
for
it
:
for
notwithstanding
such
Order
he
may
call
for
it
.
And
it
was
farther
said
by
the
Court
,
That
an
Attachment
shall
not
be
granted
against
the
High
Sheriff
for
the
contempt
of
his
Bayliffs
.
And
a
Writ
of
Error
is
a
Supersedeas
to
an
Execution
;
but
then
there
ought
to
be
notice
given
to
the
Sheriff
:
otherwise
,
if
he
notwithstanding
serve
the
Execution
,
he
shall
not
run
in
contempt
,
for
which
an
Attachment
shall
be
granted
.
82.
Serjeant
Callis
came
into
Court
,
and
moved
this
case
:
Chapman
against
Chapman
,
in
Trespass
done
in
Lands
within
the
Dutchy
of
Cornwal
,
which
were
Borough-English
,
where
the
custome
was
,
that
if
there
were
an
estate
in
Fee
in
those
Lands
,
that
they
should
go
to
the
younger
Son
,
according
tthe
custome
;
but
if
in
Tail
,
the
should
descend
to
the
Heir
at
Common
Law
:
And
it
was
moved
by
him
,
that
the
custom
was
not
good
,
because
it
cannot
be
at
one
time
customary
,
and
go
according
to
the
custom
,
and
at
another
guildable
.
And
the
whole
Court
(
Crooke
only
being
absent
)
were
against
him
,
that
the
custom
was
good
.
Hicks
against
Webbe
.
83.
IN
Trespass
for
a
way
,
the
Defendant
did
justifie
,
and
said
,
that
he
had
a
way
not
only
ire
,
equitare
&
averia
sua
fugare
;
but
also
carrucis
&
carreragiis
carriare
.
The
Plaintiff
traversed
it
absque
hoc
,
that
he
had
a
way
not
only
ire
,
equitare
,
&c.
in
the
words
aforesaid
:
and
thereupon
they
were
at
issue
,
and
found
for
the
Plaintiff
.
Glynn
moved
in
arrest
of
Judgment
,
that
the
Issue
was
ill
joyned
,
because
it
was
not
a
direct
affirmative
,
but
by
inducement
only
.
And
the
whole
Court
was
against
him
.
And
Justice
Iones
said
,
That
if
I
say
,
that
not
only
Mr.
Glynn
hath
been
at
such
a
place
,
but
also
Mr.
Iones
,
without
doubt
it
is
a
good
affirmative
,
that
both
have
been
there
.
But
they
all
agreed
,
that
the
pleading
was
more
elegant
than
formal
.
84.
In
the
Case
betwixt
Brooke
and
Boothe
:
Justice
Barckley
said
,
that
it
is
a
Rule
,
That
if
there
be
two
things
alledged
,
and
one
of
necessity
ought
to
be
alledged
,
and
he
relies
on-only
upon
the
other
,
it
is
no
double
Plea
:
As
if
a
man
plead
a
Feoffment
with
Warranty
,
and
relieth
upon
the
Warranty
,
it
is
not
double
.
85.
Justice
Barckley
said
,
That
the
Court
of
the
Exchequer
,
they
may
make
a
Lease
for
three
Lives
,
by
the
Exchequer-Seal
.
Clarke
against
Spurden
.
86.
IN
a
Writ
of
Error
to
reverse
a
Judgment
given
in
the
Court
of
Common
Pleas
,
the
case
was
shortly
thus
:
A.
wife
of
I.S.
intestate
,
promiseth
to
B.
to
whom
Adnistration
was
committed
,
that
if
he
shall
relinquish
the
Administration
at
the
request
of
C.
and
suffer
A.
to
Administer
,
that
A.
will
discharge
B.
of
two
Bonds
.
In
Assumpsit
brought
by
B.
in
the
common
Pleas
,
he
alledged
that
he
did
renounce
Administration
,
and
suffered
A.
to
Administer
,
and
that
A.
had
not
discharged
him
of
the
two
Bonds
.
And
it
was
found
for
the
Plaintiff
.
And
thereupon
Error
was
brought
,
because
B.
doth
not
shew
,
that
he
did
renounce
the
Administration
at
the
request
of
C.
And
Rolls
for
the
Plaintiff
,
in
the
writ
of
Error
,
did
assign
the
same
for
Error
.
Justice
Barckley
(
all
the
other
Justices
being
absent
)
held
that
it
was
Error
;
for
consideration
is
a
thing
meritorious
,
and
all
ought
to
be
performed
,
as
well
the
request
on
the
part
of
C.
as
the
permission
of
the
part
of
B.
which
ought
to
be
shewed
:
For
perhaps
B.
was
compelled
to
relinquish
it
in
the
Ecclesiastical
Court
,
as
it
might
be
;
for
of
right
the
wife
ought
to
Administer
.
And
therefore
it
ought
to
have
been
averred
,
that
it
was
at
the
request
of
C.
And
therefore
,
if
it
had
been
that
he
should
renounce
at
the
charge
of
C.
it
ought
to
be
averred
,
that
it
was
at
the
charge
of
C.
And
it
was
adjourned
.
87.
A
man
Libelled
in
the
Spiritual
Court
,
for
Tithes
for
barren
cattle
:
and
it
was
moved
for
a
Prohibition
upon
this
suggestion
,
viz.
That
he
had
not
other
cattle
than
those
which
he
bred
for
the
Plough
and
Pale
;
and
thereupon
Barckley
being
alone
there
,
granted
a
Prohibition
.
And
the
same
Parson
also
Libelled
for
Tithes
of
Conies
;
and
for
that
also
he
granted
a
Prohibition
,
for
they
are
not
Titheable
,
if
not
by
custome
:
And
here
Barckley
said
,
That
if
Land
be
Titheable
,
and
the
Tenant
doth
not
plough
it
,
and
manure
it
;
yet
the
Parson
may
sue
for
Tithes
in
the
Ecclesiastical
Court
.
North
against
Musgrave
.
88.
IN
Debt
upon
the
Statute
of
1
&
2
Phil.
&
Mar.
c.
12.
the
words
of
which
Statute
are
,
That
no
man
shall
take
for
keeping
in
pound
,
impounding
,
or
poundage
of
any
manner
of
distress
,
above
the
sum
of
four
pence
,
upon
pain
of
forfeiture
of
five
pounds
,
to
be
paid
to
the
party
grieved
.
And
the
Plaintiff
shewed
that
his
Cattle
were
distreyned
and
impounded
,
and
that
the
Defendant
took
of
him
ten
pence
for
the
poundage
:
And
thereupon
the
Plaintiff
brought
an
Action
for
the
penalty
of
five
pounds
,
and
found
for
the
Plaintiff
.
And
the
Judgment
was
,
That
he
should
recover
the
five
pounds
,
and
damages
,
ultra
&
praeter
the
mony
taken
for
the
poundage
.
And
thereupon
a
Writ
of
Error
was
brought
,
and
three
things
assigned
for
Error
.
First
,
because
the
Action
was
brought
for
the
penalty
of
five
pounds
only
,
and
not
for
the
six
pence
which
was
taken
above
the
allowance
of
the
Statute
,
which
ought
not
to
be
divided
.
Which
was
answered
by
Justice
Barckley
(
all
the
other
Justices
being
absent
)
That
notwithstanding
it
is
good
;
for
true
it
is
,
that
he
cannot
bring
his
Action
for
fifty
shillings
,
part
of
the
penalty
,
because
it
is
entire
;
but
here
are
two
several
penalties
,
and
he
may
divide
and
disjoyn
them
if
he
will
,
or
he
may
wave
the
six
pence
.
For
quilibet
potest
renunciare
,
juri
pro
se
introducto
.
The
second
was
,
That
he
doth
not
demand
that
which
is
ultra
&
praeter
the
four
pence
given
by
the
Statute
:
and
yet
the
Judgment
is
given
for
that
,
which
is
not
good
:
To
which
Justice
Barckley
said
,
That
the
Judgment
was
good
.
For
no
judgment
is
given
for
that
which
is
ultra
&
praeter
the
four
pence
,
but
only
for
the
four
pounds
,
because
he
doth
not
demand
it
.
And
we
cannot
judge
the
Judgment
to
be
erroneous
by
Implication
.
The
third
Objection
was
,
That
Costs
and
Damages
are
given
,
which
ought
not
to
be
upon
a
penal
Law
.
For
he
ought
not
to
have
more
than
the
Statute
giveth
;
and
therefore
upon
the
Statute
of
Perjury
,
no
Costs
are
given
:
so
upon
the
Statute
of
Gloucester
of
Wast
,
the
Plaintiff
shall
recover
no
more
than
the
treble
value
.
But
Rolls
who
was
on
the
contrary
,
said
,
That
there
are
many
presidents
in
the
common
Pleas
,
that
Damages
have
been
given
upon
this
Statute
.
But
Barckley
and
Iones
,
who
afterwards
came
,
and
seemed
to
agree
with
Justice
Barckley
in
the
whole
,
was
against
it
,
That
no
Damages
ought
to
be
given
;
and
desired
that
the
Presidents
might
be
viewed
.
But
here
Rolls
offered
this
difference
:
Where
the
penalty
given
by
the
Statute
is
certain
,
as
here
,
upon
which
he
may
bring
Debt
,
there
he
shall
recover
Damages
:
but
where
the
penalty
is
uncertain
,
as
upon
the
Statute
of
Gloucester
,
for
treble
damages
,
the
Statute
which
giveth
the
treble
value
,
and
the
like
;
there
,
because
it
is
incertain
,
he
shall
have
no
more
▪
Barckley
asked
Mr.
Hoddesdon
,
If
the
Informer
should
recover
Damages
.
And
he
and
Keeling
Clerk
of
the
Crown
,
answered
,
No
;
but
said
Damages
should
be
given
against
him
▪
and
it
was
adjourned
.
89.
Skinner
Libelled
in
the
Ecclesiastical
Court
for
th●
Tithes
of
Roots
,
of
a
Coppice
rooted
up
.
And
Porter
prayed
Prohibition
.
And
it
was
said
by
Iones
and
Barckley
Justice●●
no
other
Justice
being
present
,
That
if
cause
were
not
shewed
before
such
a
day
,
that
a
Prohibition
should
be
awarded
because
it
is
ad
exheredationem
,
and
utter
destruction
of
〈◊〉
▪
And
the
Opinion
was
,
that
the
Branches
should
be
priviledged
.
And
a
man
shall
not
pay
Tithes
of
Quarries
of
Ston●
▪
And
Barckley
said
,
It
had
been
adjudged
,
That
a
man
shal●
not
pay
Tithes
for
Brick
and
Clay
.
90
A.
said
to
B.
Hast
thou
been
at
London
to
change
〈◊〉
Mony
thou
stolest
from
me
?
And
it
was
Objected
,
That
thes●
words
are
not
actionable
,
because
they
are
an
Interrogator●
only
,
and
no
direct
affirmativ●
.
But
by
Barckley
and
Ione●
(
the
other
Justices
being
absent
)
the
words
are
actionabl●
.
For
the
first
words
,
Hast
thou
been
at
London
,
are
the
word●
of
Interrogation
;
and
the
subsequent
words
,
viz.
The
〈◊〉
thou
stolest
from
me
,
is
a
positive
affirmation
.
And
Barckley
said
,
That
it
had
been
oftentimes
adjudged
,
That
words
〈◊〉
Interrogation
should
be
be
taken
for
direct
affirmation
.
Ione●
also
agreed
to
it
;
and
he
said
that
this
Case
had
been
adjudged
,
That
where
a
man
said
to
I.
S.
I
dreamed
this
night
that
you
stole
an
Horse
,
That
the
words
are
actionable
.
And
if
these
and
▪
the
like
words
should
not
be
actionable
,
a
man
might
be
abusive
,
and
by
such
subtile
words
always
avoid
an
Action
.
91.
A.
said
of
B.
that
he
took
away
money
from
him
with
a
strong
hand
,
and
alledged
that
he
spoke
those
words
of
him
innuendo
felo●icè
:
and
for
them
the
Plaintiff
brought
an
Action
upon
the
Case
.
And
by
Barckley
and
Iones
(
none
other
being
present
)
the
Action
doth
not
lie
:
●or
he
may
take
money
from
him
manu
forti
,
and
yet
be
but
a
Trespasser
;
and
therefore
the
Innuendo
is
void
,
for
that
will
not
make
the
words
actionable
,
which
are
not
actionable
of
themselves
.
92
Justice
Iones
said
,
that
it
was
a
question
,
Whether
a
Bar
in
one
Ejectione
firme
,
were
a
Bar
in
another
.
And
Justice
Barckley
said
,
that
it
is
adjudged
upon
this
difference
,
That
a
Bar
in
one
Ejectione
firme
,
is
a
Bar
in
another
,
for
the
same
Ejectment
;
but
not
for
another
,
and
new
Ejectment
:
to
which
Iones
agreed
.
Dickes
against
Fenne
.
93.
IN
an
Action
upon
the
Case
for
words
;
the
words
were
these
:
the
Defendant
having
communication
with
some
of
the
Customers
of
the
Plaintiff
,
who
was
a
Brewer
,
said
,
That
he
would
give
a
peck
of
Malt
to
his
Mare
,
and
she
should
piss
as
good
Beer
as
Dickes
doth
Brew
.
And
that
he
laid
ad
grave
damnum
&c.
Porter
for
the
Defendant
;
that
the
words
are
not
actionable
o●
themselves
;
and
because
the
Plaintiff
hath
alledged
no
special
Damage
,
as
loss
of
his
Custome
,
&c.
the
Action
will
not
〈◊〉
Rolls
:
that
the
words
are
actionable
:
and
he
said
,
that
it
had
been
adjudged
here
,
That
i●●ne
say
of
a
Brewer
,
That
he
brews
naughty
Beer
,
wi●hout
more
saying
,
these
words
are
actionable
,
without
any
special
damage
alledged
.
But
the
whole
Court
was
against
him
(
Crooke
only
absent
)
That
the
words
of
themselves
,
were
not
actionable
,
without
alledging
special
damage
;
as
the
loss
of
his
Custome
,
&c.
which
is
not
here
.
And
therefore
not
actionable
.
And
Barckley
said
,
That
the
words
are
only
comparative
,
and
altogether
impossible
also
.
And
he
said
,
that
it
had
been
adjudged
,
that
where
one
says
of
a
Lawyer
,
That
he
had
as
much
Law
as
a
Monkey
,
that
the
words
were
not
actionable
;
because
he
hath
as
much
Law
,
and
more
also
.
But
if
he
had
said
,
That
he
hath
no
more
Law
than
a
Monkey
,
those
words
were
actionable
.
And
it
was
adjorned
.
Hodges
and
Simpsons
Case
.
94.
A
Man
brought
an
Action
of
Trover
and
Conversion
against
husband
and
wife
,
of
two
Garbes
,
Anglicè
,
Sheaves
of
Corn
;
and
said
that
they
did
convert
those
sheaves
ad
usum
ipsorum
,
viz.
of
the
Husband
and
Wife
.
And
here
were
two
things
moved
by
Hyde
.
First
,
that
he
shewed
the
Conversion
to
be
of
two
Garbes
,
Anglicè
,
Sheaves
of
Corn
:
which
plea
is
naught
and
incertain
.
And
Courts
ought
to
have
certainty
;
but
here
it
is
not
shewed
,
what
Corn
it
was
.
And
the
Anglicè
is
void
,
and
therefore
no
more
than
Trover
and
Conversion
of
so
many
Sheaves
,
which
is
altogether
incertain
;
and
therefore
not
good
.
The
other
thing
is
,
That
the
Plaintiff
sayth
,
that
the
conversion
was
ad
usum
ipsorum
,
which
cannot
be
,
for
the
wife
hath
no
property
during
the
life
of
the
husband
;
and
therefore
cannot
be
ad
usum
ipsorum
.
And
he
cited
two
Judgments
in
the
point
,
where
it
was
adjudged
accordingly
.
And
Justice
Barckley
said
,
that
it
had
been
many
times
so
adjudged
.
But
Justice
Iones
said
,
that
there
may
be
a
Conversion
by
the
wife
to
her
use
,
as
in
this
case
to
bake
the
Barley
into
bread
,
and
to
eat
it
her self
.
And
Bramston
Chief
Justice
said
,
that
a
wife
hath
a
capacity
to
take
to
her
own
use
;
for
there
ought
of
necessity
to
be
property
in
the
wife
,
before
the
husband
can
have
by
gift
in
Law
:
and
they
desired
to
see
Presidents
.
And
therefore
it
was
adjourned
,
as
to
this
point
.
But
by
the
whole
Court
,
the
other
was
not
good
.
More
of
the
Case
of
North
and
Musgrave
.
95.
MAynard
for
the
Plaintiff
,
in
the
Writ
of
Error
,
That
the
Judgment
was
erroneous
:
First
,
because
the
damages
and
costs
were
given
,
where
none
ought
to
be
given
,
being
a
penal
Law
:
and
therefore
no
more
than
the
penalty
shall
be
recovered
.
And
he
remembred
the
rule
taken
in
Pilfords
case
.
10
Rep.
116.
a.
and
he
cited
divers
Presidents
also
for
it
.
Cokes
Book
of
Entries
31
&
41.
And
Presidents
upon
the
Statute
of
Perjury
.
38
,
39.
Secondly
,
because
he
divided
the
Penalty
given
by
the
Statute
,
which
ought
not
to
be
,
for
by
such
means
the
offender
should
be
doubly
vext
;
for
he
might
sue
him
after
for
the
six
pence
praeter
&
ultra
that
which
was
taken
for
the
distress
.
And
he
said
,
it
is
like
to
the
case
of
an
Annuity
,
which
is
entire
and
cannot
be
divided
.
Thirdly
,
he
said
,
That
the
Judgment
it self
was
erroneous
,
because
that
Judgment
is
given
for
more
than
he
demands
.
For
the
Judgment
is
,
quod
recuperet
5.
li.
ultra
&
praeter
,
that
which
is
above
the
4
d.
given
by
the
Statute
.
Rolls
contrary
,
that
the
Damages
and
Costs
are
well
given
;
and
the
same
is
out
of
the
rule
of
Pilfords
case
:
because
that
the
Action
is
no
new
action
,
but
the
thing
is
a
new
thing
,
for
which
the
old
Action
is
given
:
And
the
Damages
and
Costs
are
here
given
for
the
Suit
and
Delay
,
and
not
for
the
Offence
.
And
he
cited
also
Presidents
for
him
,
viz.
The
new
Book
of
Entries
163
,
164.
For
the
second
point
,
he
said
,
That
they
are
several
penalties
which
are
given
,
and
therefore
he
might
bring
his
Action
severally
for
them
,
if
he
would
.
As
to
the
third
point
,
That
Judgment
is
given
for
more
than
the
party
declares
:
it
is
not
so
,
for
then
the
Judgment
shall
be
made
vitious
by
Implication
,
which
ought
not
to
be
.
And
as
to
dividing
of
the
penalty
and
Judgment
,
the
same
was
good
by
the
whole
Court
,
for
the
reasons
before
given
.
As
to
the
giving
of
Costs
,
Iones
and
Bramston
Chief
Justice
conceived
,
that
they
were
well
assessed
,
upon
the
presidents
before
cited
:
But
Barckley
doubted
thereof
,
and
did
conceive
that
no
costs
should
be
given
in
this
case
,
and
that
upon
Pilfords
case
10
Rep.
As
to
the
Presidents
,
he
said
,
that
they
did
not
bind
him
;
for
perhaps
,
they
passed
sub
silentio
.
And
afterwards
it
was
adjorned
.
Johnson
against
Dyer
.
96.
IN
an
Action
upon
the
Case
for
words
,
the
Defendant
having
speech
with
the
Father
of
the
Plaintiff
said
to
him
,
I
will
take
my
Oath
that
your
Son
stole
my
Hens
.
For
which
words
the
Plaintiff
brought
the
Action
.
But
did
not
aver
that
he
was
his
Son
,
or
that
he
had
but
one
Son
.
And
it
was
holden
by
the
whole
Court
(
Crooke
being
absent
)
that
the
plea
was
not
good
.
Leake
and
Dawes
Case
.
97.
LEake
brought
a
Scire
facias
,
in
the
Chancery
,
against
Dawes
,
to
avoid
a
Statute
;
and
the
Case
,
as
it
was
moved
by
Serjeant
Wilde
,
was
such
:
Hopton
acknowledged
a
Statute
to
Dawes
,
and
afterwards
conveyed
part
of
the
Land
liable
to
the
Statute
to
I.
S.
who
conveyed
the
same
to
Leake
,
the
plaintiff
;
and
afterwards
the
Conusor
conveyed
other
part
of
the
Land
to
Dawes
,
the
Defendant
,
who
was
the
Conusee
,
by
bargain
and
sale
:
the
Conusee
extended
the
Lands
of
Leake
,
the
Purchaser
;
who
thereupon
brought
this
Scire
facias
,
to
avoid
the
Statute
,
because
that
the
Conusee
had
purchased
parcel
of
the
Land
liable
to
the
Statute
,
and
so
ex●inguished
his
Statute
.
And
this
case
came
by
Mittimus
into
the
Kings
Bench.
And
here
it
was
moved
by
Serjeant
Wilde
,
for
Dawes
the
Defendant
,
in
arrest
of
Judgment
.
And
taken
by
him
for
Exce●●ion
,
That
the
bargain
and
sale
is
alledged
to
be
made
to
Dawes
,
but
it
is
not
shewed
,
that
it
was
by
Deed
inrolled
;
but
yet
it
is
pleaded
,
That
Virtute
cujus
,
viz.
of
Bargain
and
Sale
,
the
Conusee
was
seised
,
and
doth
not
shew
▪
that
he
entred
.
And
here
it
was
said
by
the
Court
,
There
are
two
points
.
First
,
Whether
an
Inrolment
shall
be
intended
,
without
pleading
of
it
?
Secondly
,
Admitting
not
what
Estate
the
Bargaine●
hath
,
as
this
Case
is
?
As
to
the
first
Justice
Iones
took
this
difference
.
Where
a
man
pleads
a
bargain
and
sale
to
a
stranger
,
and
where
to
himself
.
In
the
first
case
,
he
need
not
plead
an
Inrolment
;
but
contrary
in
〈…〉
.
Barckley
agreed
it
,
and
took
another
difference
,
betwixt
a
Plea
in
Bar
,
and
a
Count
:
In
a
Count
,
if
a
man
p●●ad
a
grant
of
a
Reversion
without
attor●ment
,
it
is
good
;
contrary
in
Bar
:
so
in
this
Case
.
The
second
question
is
(
admitting
that
the
Deed
shall
be
intended
not
to
be
inrolled
without
pleading
)
What
estate
Dawes
the
Conusee
hath
before
Entry
,
the
Deed
not
being
inrolled
.
For
it
was
agreed
by
the
whole
Court
,
That
if
he
be
a
disseior
,
or
if
he
hath
but
an
estate
at
will
,
that
the
Statute
is
suspended
.
And
first
,
whether
he
hath
an
estate
at
will
,
at
the
common
Law
,
or
not
,
without
Entry
.
Barckley
:
that
he
had
.
But
Iones
and
Bramston
,
contrary
;
and
it
seemed
that
he
had
an
estate
at
will
,
by
the
Statute
.
And
put
the
case
of
feoffment
in
Bucklers
case
.
3.
Rep.
Where
the
Feoffee
entreth
before
Livery
,
that
he
hath
an
estate
at
will
:
and
Barckley
agreed
therein
with
him
,
for
the
possibility
of
inrolment
.
But
Iones
conceived
that
an
estate
at
will
,
could
not
be
executed
by
the
Statute
.
And
it
was
adjorned
.
Curtisse
against
Aleway
.
98.
THe
Case
was
thus
:
A
woman
was
dowable
of
certain
Land
,
within
the
Jurisdiction
of
the
Council
of
the
Marches
,
of
which
I.
S.
died
seised
.
She
accepted
a
Rent
by
parol
of
the
Heir
,
out
of
the
same
Land
,
in
satisfaction
of
her
Dower
.
And
afterwards
there
was
a
Composition
betwixt
them
for
defalcation
of
that
Rent
.
Afterwards
there
was
an
Action
brought
before
the
Council
of
the
Marches
for
the
Arrerages
of
the
Rent
:
where
the
question
was
,
Whether
the
Rent
were
in
satisfaction
of
her
Dowe●
,
or
not
:
and
it
was
moved
by
Moreton
for
a
Prohibition
.
And
it
was
granted
by
the
Court
;
because
the
same
did
concern
Freehold
,
of
which
they
have
not
Jurisdiction
,
for
by
the
express
Proviso
of
the
Statute
of
34
H.
8.
of
holding
of
plea
of
Lands
,
Tenements
,
Hereditaments
,
or
Rents
.
But
because
that
it
appeared
by
the
Bill
,
that
the
woman
was
dead
,
so
as
the
realty
was
turned
into
the
personalty
,
viz.
into
Debt
.
And
therefore
it
was
conceived
by
Evers
Attorney
of
the
Marches
,
That
although
it
was
not
within
the
Jurisdiction
before
,
yet
being
now
turned
into
a
personal
Action
,
that
they
have
Jurisdiction
.
But
Iones
and
Barckley
Justices
,
were
of
a
contrary
Opinion
;
and
Iones
said
,
That
an
Action
of
Debt
for
Arrerages
would
not
lie
before
them
,
because
it
touched
the
realty
;
which
was
denied
by
none
but
Evers
Attorny
.
Edwards
against
Omellhallum
.
99.
IN
a
Writ
of
Error
,
to
reverse
a
Judgment
given
in
Ireland
,
in
an
Ejectione
firme
;
the
Case
was
this
,
as
it
was
found
by
special
verdict
:
A
Mortgager
made
a
Lease
for
years
,
by
Deed
indented
,
and
afterwards
performed
the
Condition
,
and
made
a
Feoffment
in
Fee
;
the
Lessee
entred
upon
the
Feoffee
,
who
re-entred
;
and
the
Lessee
brought
an
Ejectione
firme
.
And
the
only
question
,
as
it
was
moved
by
Glynn
,
was
;
Whether
this
Lease
,
which
did
inure
by
way
of
Estople
,
should
binde
the
Feoffee
,
or
no
:
and
by
him
it
did
,
and
Rawlyns
case
in
the
4
Rep.
53.
expresly
,
and
1
&
2
Phil.
&
Mar.
Dyer
agreeth
.
And
the
whole
Court
(
Crooke
only
absent
)
without
any
argument
,
were
clear
,
That
it
should
binde
the
Feoffee
:
for
all
who
claim
under
the
Estople
,
shall
be
bound
thereby
,
vid.
Edriches
case
13
H.
7.
100
Serjeant
Iermayn
came
into
the
Court
,
and
shewed
cause
why
a
Prohibition
should
not
be
granted
in
the
case
of
Skinner
before
;
who
Libelled
for
Tythes
of
Coppice
rooted
up
.
He
agreed
that
for
timber-trees
,
above
the
growth
of
twenty
,
no
Tithes
should
be
paid
;
and
so
he
said
was
the
common
Law
,
before
the
Statute
of
45
E.
3.
which
was
but
a
confirmation
of
the
Common
Law
.
And
he
said
,
That
as
the
body
of
the
tree
is
priviledged
,
so
are
the
branches
and
root
also
;
which
is
a
proof
,
that
where
the
body
is
not
priviledged
,
there
neither
shall
be
the
root
●or
branches
.
And
in
our
Case
he
Libels
for
roots
of
underwoods
,
and
the
underwood
it self
being
titheable
,
therefore
the
roots
shall
be
also
tithable
.
And
he
said
,
that
the
〈…〉
are
not
parcel
of
the
Land
.
But
Justice
Barckley
was
against
it
;
for
they
are
not
crescentia
,
nor
renovantia
,
as
Tithes
ought
to
be
;
and
therefore
no
Tithes
ought
to
be
paid
for
them
:
and
he
said
,
that
a
Prohibition
hath
many
times
been
granted
in
the
like
cases
.
But
Dr.
Skinner
did
alledge
a
custome
for
the
payment
of
Tithes
of
them
.
And
upon
that
they
were
to
go
to
trial
:
And
here
it
was
said
,
that
Dr.
Skinner
had
used
to
have
some
special
particular
benefit
of
the
Parishioners
,
in
lieu
of
Tithe
of
Roots
.
And
thereupon
Barckley
said
,
That
it
is
a
Rule
,
where
the
Parishioner
doth
any
thing
which
he
is
not
compellable
by
the
Law
to
do
,
which
cometh
to
the
benefit
of
the
Parson
;
there
if
he
demand
Tithes
of
the
thing
,
in
lieu
whereof
this
is
done
,
that
a
Prohibition
shall
be
granted
.
And
there
is
another
rule
:
That
Custom
may
make
that
titheable
,
which
of
it self
is
not
titheable
.
And
here
he
said
to
Dr.
Skinner
being
then
in
Court
,
That
he
had
two
matters
to
help
him
,
and
if
any
of
them
be
found
for
him
,
that
a
Prohibition
ought
not
to
be
awarded
.
101.
Justice
Barckley
said
,
That
if
a
man
be
living
at
the
day
of
Nisi
prius
,
and
dieth
before
the
day
in
Banck
,
the
Writ
shall
not
abate
.
So
if
a
man
be
living
the
first
day
of
the
●●rliament
,
and
dieth
before
the
last
day
,
yet
he
may
be
Attainted
:
and
the
reason
is
,
because
in
the
eye
and
judgment
of
Law
,
they
are
but
one
day
by
relation
,
which
the
Law
makes
.
102.
There
were
three
Brothers
,
the
Eldest
took
Administration
of
the
goods
of
the
Father
,
and
after
Debts
and
Legacies
paid
,
the
younger
Brothers
sued
the
eldest
in
the
Ecclesiastical
Court
,
to
compel
him
to
distribute
the
Estate
.
And
thereupon
a
Prohibition
was
prayed
,
and
denied
by
the
Court
:
for
they
having
Jurisdiction
of
the
Principal
,
may
have
Jurisdiction
of
the
Accessary
.
103.
A.
Libelled
against
B.
in
the
Spiritual
Court
,
for
these
words
:
Thou
art
a
Drunkard
,
and
usest
to
be
Drunk
thrice
a
week
.
And
upon
that
150
Caroli
,
in
Easter-Term
(
as
you
may
see
before
)
a
Prohibition
was
prayed
,
and
granted
.
And
now
Littleton
the
Kings
Sollicitor
came
in
Court
,
and
moved
for
a
Consultation
:
and
he
said
,
that
the
Statute
of
Articuli
Cleri
gave
power
unto
the
Ecclesiastical
Court
to
have
conusance
of
those
and
the
like
words
.
Register
49
F.
N.
B.
51.
They
may
hold
plea
for
defamation
;
as
for
calling
Adulterer
,
or
Usurer
.
13
H.
7.
Kellaway
.
27
H.
8.
14.
And
he
cited
many
Judgments
in
the
like
cases
,
where
Prohibitions
had
not
been
granted
:
and
amongst
others
this
Case
.
Mich.
20
Iac.
inter
Lewis
&
Whitton
Libel
in
the
Ecclesiastical
Court
,
for
calling
him
Pander
,
and
no
prohibition
granted
.
And
the
like
Case
was
for
calling
another
Pimp
,
and
no
Prohibition
granted
.
Justice
Iones
:
That
a
Prohibition
should
be
granted
;
for
they
have
conusance
of
defamation
,
for
any
thing
which
is
meerly
Spiritual
,
or
which
doth
concern
it
,
where
they
have
conusance
of
the
principal
,
else
not
:
as
in
Heresie
,
Adultery
,
and
the
like
:
but
in
this
Case
they
have
not
Conusance
of
the
principal
.
True
it
is
,
that
it
is
peccatum
:
But
if
they
should
punish
every
thing
which
is
Sin
,
they
would
altogether
derogate
,
and
destroy
the
Temporal
Jurisdiction
.
And
therefore
if
I
say
,
that
another
is
an
Idle
man
,
or
envious
,
these
are
deadly
Sins
;
and
yet
they
have
not
Conusance
of
them
.
And
he
cited
Coltrops
Case
,
adjudged
in
the
Common
pleas
,
which
was
our
very
Case
in
point
:
and
there
he
said
that
upon
solemn
debate
it
was
adjudged
,
That
a
Prohibition
should
be
awarded
.
Bramston
Chief
Justice
agreed
.
Barckley
contrary
,
That
a
Consultation
should
be
awarded
:
and
he
said
,
in
many
Cases
,
although
they
have
Jurisdiction
of
the
principal
,
yet
they
shall
not
have
Conusance
;
as
in
the
Case
of
22
E.
4.
tit'
Consultation
.
But
he
said
,
that
the
Offence
of
Drunkenness
is
mixt
,
and
is
an
offence
against
the
Spiritual
,
and
Common
Law
also
;
and
if
it
be
mixt
,
both
may
hold
plea
:
and
Adultery
and
Murder
are
the
common
effects
of
Drunkenness
;
which
are
offences
against
both
Laws
,
and
therefore
he
shall
be
punished
by
both
.
But
yet
Barckley
yielded
to
the
Judgment
cited
by
Iones
.
And
therefore
the
whole
Court
(
Crooke
being
absent
)
was
,
That
a
prohibition
should
be
awarded
.
104.
Rolls
moved
this
Case
:
The
Parishioners
of
a
certain
Parish
in
Devonshire
,
did
alledge
a
Custom
to
chuse
the
two
Churchwardens
of
the
Parish
,
and
they
did
so
;
the
Parson
chose
another
:
and
the
Archdeacon
swore
one
of
the
Church-wardens
chosen
by
the
Parish
,
and
refused
to
swear
the
other
,
but
would
have
sworn
him
who
was
chosen
by
the
Parson
.
And
because
they
did
refuse
him
,
they
were
Excommunicate
.
Rolls
prayed
a
Mandat
to
the
Archdeacon
,
to
compel
him
to
swear
the
other
chosen
by
the
Parish
;
and
a
Prohibition
also
,
by
reason
of
the
Excommunication
.
And
he
cited
a
preeedent
for
it
,
which
was
the
case
of
Sutton-Valence
in
Kent
.
And
the
whole
Court
(
Crooke
being
absent
)
inclined
to
grant
them
:
for
they
said
,
they
conceived
no
difference
betwixt
London
and
the
Country
,
as
to
that
purpose
:
for
as
in
London
they
are
a
Corporation
,
and
may
take
Land
for
the
benefit
of
the
Church
:
So
throughout
England
,
they
are
a
Corporation
,
and
capable
to
take
,
and
purchase
Goods
for
the
benefit
of
the
Church
.
And
therefore
they
did
conceive
there
was
no
difference
.
See
the
case
before
,
the
case
of
the
Parish
of
Saint
Ethelborough
,
London
.
105.
Keeling
moved
to
quash
an
Indictment
of
Rescous
,
because
it
is
shewed
that
the
Rescous
was
at
W.
and
doth
not
shew
that
W.
was
within
this
County
;
and
if
it
was
not
within
the
County
,
then
it
was
an
Escape
,
and
no
Rescous
:
And
we
cannot
aver
in
this
case
,
that
it
was
out
of
the
County
.
Farther
,
it
was
not
shewed
where
the
Rescous
was
,
so
that
upon
the
matter
it
is
no
Arrest
;
nor
was
the
Indictment
vi
&
armis
,
as
it
ought
to
be
.
As
to
the
first
,
the
Court
strongly
inclined
,
that
they
might
well
intend
it
to
be
within
the
County
,
because
the
Indictment
says
,
in
Com.
meo
.
apud
W.
tent
.
But
for
the
other
Exceptions
,
the
Indictment
was
quashed
.
106.
In
Trespass
of
Assault
and
Battery
,
and
Wounding
,
the
Defendant
pleaded
Not
Guilty
,
as
to
the
Wounding
;
and
pleaded
special
matter
of
justification
as
to
the
Assault
and
Battery
;
and
found
for
the
Plaintiff
;
and
it
was
moved
in
arrest
of
Judgment
,
That
the
plea
was
repugnant
,
for
Assault
and
Battery
doth
imply
Wounding
,
and
therefore
it
is
repugnant
for
him
to
justifie
it
,
for
it
is
a
confession
of
wounding
.
But
Justice
Crooke
and
Justice
Barckley
(
the
others
being
absent
)
were
clear
,
that
the
plea
was
good
;
for
so
is
the
common
form
of
pleading
:
and
farther
,
he
might
be
guilty
of
the
Battery
,
and
not
of
the
wounding
:
for
Crooke
said
,
Wounding
implied
Assault
and
Battery
;
but
not
è
contra
.
Brookes
against
Baynton
.
107.
IN
a
Writ
of
Error
to
reverse
a
Judgment
given
i●
the
Court
of
Common
pleas
,
in
Trespass
for
assault
battery
and
wounding
;
it
was
assigned
for
Error
,
by
Maynard
,
That
there
was
variance
betwixt
the
Original
and
the
Declaration
;
for
the
Original
was
only
of
Battery
and
Wounding
of
himself
;
and
he
declared
of
Battery
and
wounding
of
him
and
his
horse
also
;
for
he
said
,
that
quendam
equum
,
upon
which
the
Plaintiff
equitavit
,
percussit
,
its
quod
cecidit
,
&c.
and
that
was
not
helped
by
the
Statute
.
But
Rolls
contrary
,
and
here
is
no
variance
:
for
the
alledging
of
striking
of
the
horse
was
only
inducement
to
alledge
the
Battery
of
himself
;
for
he
doth
not
bring
the
Action
for
the
beating
of
his
horse
,
for
it
was
not
alledged
that
it
was
his
own
horse
,
but
quendam
equum
;
and
for
that
reason
,
by
the
whole
Court
the
Judgment
was
affirmed
.
More
of
the
Case
of
Leake
against
Dawe●
.
108.
SErjeant
Mallet
for
the
Plaintiff
,
That
the
Scire
fa●●●s
is
good
,
notwithstanding
the
exceptions
,
for
these
reasons
.
First
,
because
it
is
not
a
Declaration
,
but
a
Writ
;
which
is
not
drawn
by
Counsel
;
and
it
is
to
declare
the
matter
briefly
;
but
if
it
were
in
a
Declaration
,
yet
I
hold
it
good
,
because
he
saith
,
that
it
was
modo
&
adhuc
seisitus
existit
,
which
as
I
conceive
,
helps
it
:
and
besides
,
it
is
not
his
title
,
but
the
title
of
his
Adversary
,
which
he
is
not
bound
to
plead
so
exactly
as
his
own
title
.
See
for
that
,
14
Eliz.
Dyer
.
204.
2
Car.
beswixt
Green
and
Moody
,
in
Audita
Querela
,
he
shewed
that
there
was
Debt
brought
upon
a
Lease
for
years
,
to
begin
at
a
day
to
come
,
and
did
not
shew
whether
the
Lessee
entred
before
the
day
or
not
,
so
as
he
might
be
a
disseisor
:
and
yet
notwithstanding
it
being
in
Audita
querela
,
which
is
an
equitable
Action
,
it
is
good
.
Hil.
1
Iac.
betwixt
Blackston
and
Martin
in
this
Court
,
a
Scire
facias
was
brought
to
avoid
a
Statute
,
and
it
was
shewed
that
the
Defendant
was
Tenant
,
but
doth
not
shew
how
Tenant
;
but
it
said
ad
grave
damnum
,
which
could
not
be
,
if
he
were
not
lawful
Tenant
;
and
therefore
adjudged
good
,
notwithstanding
that
general
allegation
.
See
new
Book
of
Entries
,
Mollins
case
,
98
,
99.
a
strong
case
to
this
purpose
.
Besides
,
he
said
,
That
here
issue
was
taken
upon
another
point
,
Whether
he
bargained
or
not
;
and
therefore
he
conceived
in
this
Scire
facias
,
that
it
is
not
h●r●
needful
to
shew
the
Inrolment
;
and
for
these
reasons
,
prayed
Judgment
for
the
Plantiff
.
Serjeant
Wild
for
the
Defendant
,
That
the
shewing
of
the
Inrolment
is
not
helped
by
the
Issue
joyned
,
being
matter
of
substance
;
for
he
saith
,
that
virtute
cujus
,
and
of
the
Statute
of
27
H.
8.
of
uses
,
that
the
Defendant
was
seised
,
and
we
ought
not
to
intend
an
Estate
by
any
other
means
or
seisin
,
than
himself
hath
alledged
.
And
th●refore
it
ought
to
be
adjudged
upon
his
own
pleading
,
whether
the
Defendant
hath
any
estate
without
inrolment
or
entry
,
by
force
of
the
Statute
of
Uses
.
And
I
conceive
he
hath
not
.
True
it
is
,
that
all
circumstances
ought
not
to
be
pleaded
,
but
the
substance
,
viz.
the
Inrolment
;
and
therefore
it
ought
to
be
pleaded
,
as
Fulmerston
and
Stewards
case
is
in
the
Commentaries
,
and
2
Eliz.
Dyer
.
And
no
estate
passeth
without
Inrolment
:
not
a
Fee-simple
;
for
then
there
ought
to
be
Inrolment
according
to
the
Statute
:
and
no
estate
at
will
can
pass
without
Entry
,
for
that
is
as
opposit'
in
objecto
,
that
a
man
shall
be
tenant
at
will
against
his
will
;
for
his
Entry
proves
his
intent
to
hold
at
will
.
For
Littleton
saith
,
By
force
whereof
he
is
possessed
;
so
that
there
ought
to
be
possession
to
make
an
Estate
at
will
.
And
in
case
of
a
Lease
for
years
,
although
it
be
true
that
he
is
a
Lessee
for
years
to
many
purposes
before
Entry
,
yet
an
Entry
ought
to
be
pleaded
.
And
Dyer
14.
is
non
habuit
;
non
occupavit
is
no
good
plea
in
a
Lease
for
years
;
contrary
in
the
case
in
a
Lease
at
will
;
which
is
a
strong
proof
,
that
he
is
not
Lessee
at
will
before
entry
.
3
Iac.
betwixt
Bellingham
and
Fitzherbert
.
5
El.
Dyer
.
10
Eliz.
Mockets
case
,
&
Mich.
15
Iac.
betwixt
Coventry
and
Stacie
,
resolved
that
a
release
to
the
Bargainee
before
Inrolment
is
not
good
:
And
by
consequence
he
hath
not
an
estate
at
will
before
Inrolment
,
or
Entry
made
;
for
if
he
had
,
the
Release
should
be
good
.
18
H.
8.
the
Lord
Lovells
case
,
that
no
estate
at
Will
.
Lastly
,
Parrolls
font
plea
,
and
the
case
of
a
man
shall
not
be
taken
to
be
otherwise
than
he
hath
pleaded
it
;
and
he
having
pleaded
that
virtute
cujus
,
and
of
the
Statute
of
Uses
,
that
the
Defendant
was
seised
,
he
shall
be
concluded
thereby
.
5
H.
7.
A
man
shewed
,
that
another
licenced
him
to
enter
into
his
land
and
occupy
for
a
year
,
it
is
not
good
,
but
he
ought
to
plead
it
as
a
Lease
.
Besides
,
the
virtute
cujus
is
not
traversable
,
as
the
11
Rep.
Pridle
and
Nappers
case
is
▪
Rolls
accord
,
and
he
said
,
That
if
it
shall
be
construed
,
That
the
Conusee
shall
have
an
estate
by
Disseisin
,
the
Plaintiff
ought
to
plead
it
,
that
the
Defendant
was
seised
by
way
of
disseisin
.
And
where
it
was
objected
,
That
this
is
a
Writ
,
and
not
a
Declaration
,
he
answered
,
It
is
a
Writ
and
Declaration
also
;
and
therefore
he
ought
to
declare
his
case
at
large
,
and
the
defect
of
the
Conveyance
,
viz.
the
want
of
Inrolment
is
not
supplied
by
the
virtute
cujus
.
And
he
having
made
that
his
Title
,
you
ought
to
judge
upon
it
,
and
not
otherwise
.
But
the
whole
Court
,
viz.
Bramston
Ch.
Just.
Crooke
,
Iones
,
and
Barckley
,
Justices
,
That
the
Scire
facias
was
good
,
for
it
was
said
that
the
Defendant
perquisivit
sibi
&
heredibus
suis
,
and
concludes
,
virtute
cujus
,
and
of
the
Statute
of
Uses
,
he
was
seised
;
which
is
a
good
averment
that
he
hath
a
Fee
,
and
it
was
not
material
how
he
hath
it
:
and
he
need
not
shew
his
Title
so
fully
,
being
a
stranger
to
it
.
And
this
being
an
equitable
Action
,
if
the
Court
upon
this
Writ
shall
conceive
sufficient
matter
,
upon
which
the
Plaintiff
may
bring
his
Action
,
it
is
good
:
and
the
Court
ought
to
give
Judgment
for
him
:
for
being
but
matter
of
form
,
it
is
not
material
,
unless
a
Demurrer
had
been
special
upon
it
.
And
wheresoever
there
is
damnification
,
there
the
Court
ought
to
give
Judgment
for
the
Plaintiff
,
notwithstanding
a
defect
of
form
in
the
Writ
.
And
Barckley
said
,
That
if
a
man
be
seised
of
Bl.
acre
and
Wh.
acre
,
and
acknowledgeth
a
Statute
;
and
afterwards
makes
a
Lease
for
years
of
Wh.
acre
,
the
remainder
over
in
Fee
,
&
then
the
Conusee
purchase
Bl.
acre
,
and
extendeth
the
land
of
the
Lessee
for
years
;
he
held
,
that
he
in
the
remainder
should
have
an
Audita
querela
,
or
a
Scire
facias
for
the
damnification
,
which
came
to
his
interest
.
And
he
held
,
that
he
who
had
but
interesse
termini
should
have
an
Audita
querela
,
That
one
jointly
only
might
have
an
Audita
querela
,
and
that
the
death
of
one
of
them
should
not
abate
the
Writ
.
And
he
held
that
Cestui
que
use
before
the
Statute
,
might
have
an
Audita
querela
:
all
which
proves
it
to
be
but
an
equitable
Action
,
upon
which
the
Law
doth
not
look
with
so
strict
an
eye
,
as
upon
other
Actions
.
And
as
to
the
Objection
which
was
made
by
R●lls
,
that
he
ought
to
shew
,
That
the
Conusee
had
an
estate
by
disseisin
:
Iones
was
against
that
,
for
that
no
man
is
bound
to
betray
his
Title
.
And
for
these
reasons
it
was
adjudg●d
by
the
whole
Court
,
That
the
Judgment
should
be
affirm●d
.
109.
A
Writ
of
Error
was
brought
to
reverse
a
Judgment
given
in
the
Common
pleas
,
and
after
a
Certiorari
,
and
Error●
assigned
,
they
in
the
Common
pleas
did
amend
the
Record
.
And
by
the
whole
Court
(
Crooke
only
absent
)
they
cannot
do
it
,
for
after
a
transmittitur
,
they
have
not
the
Record
before
them
.
And
Barckley
said
,
That
the
difference
stands
betwixt
the
Common
Pleas
and
the
Kings
Bench
,
and
betwixt
the
Kings
Bench
and
the
Exchequer
.
For
the
Record
remains
always
in
this
Court
,
notwithstanding
a
Writ
of
Error
brought
in
the
Exchequer-chamber
;
and
therefore
we
may
amend
after
.
Wherefore
the
Court
said
,
that
if
the
thing
were
amendable
,
that
they
would
amend
it
.
But
the
Court
of
Common
Pleas
cannot
.
Sewel
against
Reignalls
.
110.
THe
case
was
thus
:
Husband
and
Wise
did
joyn
in
an
Action
of
Debt
in
the
right
of
the
Wife
,
as
Administratrix
to
I.
S.
And
the
Defendant
being
arrested
at
their
suit
,
did
promise
to
the
Husband
,
in
consideration
that
the
Husband
would
suffer
him
to
go
at
large
,
that
he
would
give
him
so
much
.
The
husband
and
wise
did
joyn
in
an
Action
upon
the
Case
,
upon
the
promise
made
to
the
husband
alone
.
And
upon
Non
assumpsit
pleaded
,
it
was
found
for
the
Plaintiff
.
Porter
moved
in
arrest
of
Judgment
,
that
the
promise
being
made
to
the
husband
only
,
that
they
ought
not
to
joyn
in
the
Action
.
Barckley
:
the
Action
is
well
brought
,
for
the
husband
is
Administrator
in
the
right
of
the
wife
:
for
otherwise
the
consideration
were
not
good
.
For
if
he
were
not
Administrator
,
then
he
could
not
suffer
him
to
go
at
large
:
and
then
if
he
be
Administrator
in
the
right
of
his
wife
,
the
promise
which
is
made
to
the
husband
,
is
in
judgment
of
Law
also
made
to
the
wise
;
and
they
ought
to
joyn
in
the
Action
.
But
Crooke
Iones
,
and
Bramston
Chief
Justice
contrary
,
That
●●e
Action
will
not
lie
,
because
the
promise
is
of
a
collateral
thing
,
and
not
touching
the
duty
due
to
the
wise
,
as
Executrix
,
for
then
perhaps
it
would
have
been
otherwise
.
And
they
said
(
against
the
Opinion
of
Barckley
)
that
this
sum
received
should
not
be
assets
in
their
hand
.
And
Bramston
said
,
that
it
is
not
like
the
case
,
where
a
man
promiseth
to
the
father
of
Iane
Gappe
,
in
consideration
of
a
marriage
to
be
had
betwixt
his
daughter
and
him
,
that
he
would
make
her
a
Joynture
;
there
as
well
the
daughter
as
the
father
may
bring
the
Action
.
And
it
was
adjourned
.
111.
A
Parson
Libelled
in
the
Ecclesiastical
Court
for
Tithes
.
And
after
Sentence
Rolls
moved
for
a
Prohibition
upon
the
Suggestion
of
a
Modus
decimandi
;
but
it
was
not
granted
,
because
too
late
.
But
Rolls
took
this
difference
,
and
said
,
that
so
had
been
the
Opinion
of
the
Court
,
where
the
party
pleads
the
Modus
,
and
where
not
;
for
if
he
plead
it
,
there
notwithstanding
a
Sentence
,
Prohibition
hath
been
granted
;
contrary
where
he
doth
not
plead
it
.
But
notwithstanding
the
Court
refused
to
grant
a
Prohibition
.
112.
The
Parishioners
of
a
Parish
,
together
with
the
Parson
,
sued
the
Churchwardens
in
the
Ecclesiastical
Court
,
to
render
Accompt
,
and
recovered
against
them
,
and
Costs
taxed
.
Afterwards
the
Parson
released
the
Costs
,
and
notwithstanding
the
Parishioners
sued
for
the
Costs
:
and
thereupon
a
Prohibition
was
prayed
;
because
that
the
Costs
are
joyntly
assessed
,
and
the
release
of
one
would
bar
the
others
.
But
the
Opinion
of
the
whole
Court
,
that
a
Prohibition
shall
not
be
granted
:
For
the
costs
recovered
there
,
an
Action
might
be
sued
in
the
Ecclesiastical
Court
:
and
therefore
although
that
in
our
Law
,
the
release
of
one
shall
bar
the
others
;
yet
the
Action
being
sued
there
,
and
they
having
conusance
thereof
,
the
same
is
directed
according
to
their
Law
.
And
therefore
it
hath
been
adjudged
,
that
if
the
husband
and
wise
sue
in
the
Ecclesiastical
Court
for
the
defamation
of
the
wife
,
and
Sentence
be
given
for
them
,
and
Costs
taxed
,
and
afterwards
the
husband
releas●th
the
costs
,
in
the
suit
commenced
in
the
Ecclesiastical
Court
,
it
shall
not
bar
the
Wife
,
for
the
reasons
given
before
.
Brooke
and
Booth
against
Woodward
Administrator
of
John
Lower
.
113.
IN
Debt
upon
a
Bond
,
the
Defendant
prayed
Oyer
of
the
Condition
,
which
was
entred
,
in
haec
venba
.
The
Condition
of
this
Obligation
is
such
,
That
if
the
Obligor
did
deliver
to
the
Plaintiffs
two
hundred
weight
of
Hops
in
consideration
of
ten
pounds
already
paid
,
and
fifty
five
pound
to
be
paid
at
the
delivery
;
and
the
Plaintiffs
to
chuse
them
out
of
twenty
four
Bags
of
the
Obligors
own
growing
,
and
to
be
delivered
at
F.
at
a
day
certain
.
Provided
,
that
if
the
Plaintiffs
should
dislike
their
Bargain
,
that
then
they
should
lose
their
ten
pounds
:
and
if
they
liked
they
should
give
ten
pounds
more
,
&c.
Upon
Oyer
of
which
,
the
Defendant
pleaded
,
that
the
Plaintiffs
non
elegerunt
.
And
upon
that
the
Plaintiffs
did
Demur
in
Law
:
and
shewed
for
special
cause
of
Demurrer
,
that
the
Plea
was
double
.
Withrington
for
the
Plaintiffs
,
that
the
Plea
is
double
,
in
that
the
Defendant
hath
alledged
,
that
he
was
ready
,
and
that
the
Plaintiffs
non
elegerunt
;
which
are
both
issuable
pleas
,
and
each
of
them
,
of
it self
(
admitting
no
request
of
the
part
of
the
Defendant
requisite
)
is
sufficient
in
bar
of
the
Action
.
Besides
,
he
conceived
,
as
this
case
is
,
that
the
first
act
ought
to
be
done
by
the
Defendant
;
for
he
ought
to
shew
the
bags
,
and
request
the
Plaintiffs
to
make
election
.
And
he
compared
it
to
the
case
in
44
E.
3.
43.
and
also
to
Hawlins
case
,
5
Rep.
22.
Farther
,
he
conceived
that
the
Defendant
ought
to
have
alledged
,
that
he
had
twenty
four
bags
,
and
twenty
four
bags
of
his
own
growing
:
for
if
he
have
not
them
,
it
was
impossible
for
the
Plaintiffs
to
make
choice
,
and
by
consequence
the
condition
broken
.
Twisden
contrary
,
That
the
plea
is
not
double
,
for
the
alledging
himself
to
be
ready
,
was
but
inducement
to
the
subsequent
matter
,
quod
non
elegerunt
.
And
he
relied
only
upon
their
election
;
and
in
proof
thereof
he
relied
upon
the
Books
,
1
H
▪
7.
16.
and
24
E.
3.
19.
Farther
,
here
no
notice
is
requisite
,
not
he
ought
not
to
aver
that
he
had
them
;
for
he
being
bound
to
deliver
them
,
he
is
estopt
to
say
that
he
hath
them
not
.
19
Eliz.
Dyer
314.
and
3
Eliz.
Dyer
.
As
to
the
shewing
of
them
,
we
ought
not
to
do
it
,
for
the
Plaintiffs
ought
to
do
the
first
Act
,
viz.
Request
the
Defendant
to
shew
th●
bags
for
them
to
make
choice
of
.
And
the
whole
Court
strongly
enclined
against
the
Plaintiffs
,
for
the
reasons
before
given
,
and
they
advised
them
to
waive
the
Demurrer
,
and
plead
de
novo
;
which
they
did
.
Thorps
Case
.
114.
IN
an
Action
upon
the
Case
upon
Assumpsit
,
it
was
agreed
by
the
whole
Court
,
That
where
there
is
a
mutual
promise
,
viz.
A.
promiseth
to
B.
that
he
will
do
such
a
thing
;
and
B.
promiseth
to
A.
that
in
consideration
thereof
,
that
he
will
do
another
thing
;
If
A.
bring
an
Action
against
B.
and
alledge
a
breach
in
non
faciendo
,
and
saith
that
he
is
ready
to
do
the
thing
which
he
promised
,
but
that
the
other
refused
to
accept
of
it
:
Notwithstanding
the
breach
is
well
laid
,
and
the
Action
well
lieth
;
for
it
was
idle
,
and
more
than
the
Plaintiff
was
compelled
to
do
,
to
shew
that
paratus
est
to
do
the
thing
which
he
promised
:
So
that
if
there
were
a
breach
upon
the
part
of
the
Defendant
,
it
is
sufficient
,
and
if
there
was
a
breach
on
the
Plaintiffs
part
,
the
Defendant
ought
to
bring
his
Action
for
it
.
And
the
difference
was
taken
by
Bramston
,
Where
the
promise
is
conditional
,
and
where
absolute
,
as
in
our
case
.
And
agreeing
with
this
difference
,
it
was
said
at
the
Bar
and
Bench
,
That
it
was
adjudged
.
115.
Hutton
moved
to
quash
certain
Presentments
,
because
they
were
taken
in
a
Hundred-Court
,
which
is
not
the
Kings
Court
;
and
therefore
coram
non
Iudice
.
It
was
said
by
Justice
Iones
,
That
a
Hundred
may
have
a
Leet
appendant
to
it
;
and
then
they
were
lawfully
taken
.
Barckley
and
the
whole
Court
answered
,
because
it
doth
not
appear
to
the
Court
,
whether
there
was
so
or
not
,
that
the
Presentments
were
void
.
116.
Concerning
damage
clear
,
It
was
agreed
,
that
it
was
hard
that
the
Plaintiff
should
be
stopt
of
his
Judgment
until
he
had
paid
his
damages
clear
.
For
perhaps
,
if
the
Defendant
be
insolvant
,
the
Plaintiff
should
pay
more
for
damages
clear
,
than
he
should
ever
get
.
And
therefore
the
Court
was
resolved
to
amend
it
.
This
damage
clear
,
is
twelve
pence
in
the
pound
of
the
damages
given
to
the
party
in
this
Court
,
and
two
shillings
in
the
Common
pleas
.
See
the
Register
,
where
is
a
Writ
for
damage
clear
.
Harris
against
Garret
.
117.
IT
was
agreed
by
the
whole
Court
,
that
it
is
no
good
plea
to
say
,
That
such
an
one
was
bound
in
a
Recognisance
,
and
not
to
say
per
scriptum
obligat
'
;
and
to
conclude
that
it
was
secundum
formam
Statuti
,
doth
not
help
it
.
But
in
a
Verdict
it
was
agreed
to
be
good
.
And
according
to
this
difference
,
it
was
said
by
the
Court
,
That
it
was
adjudged
in
Goldsmiths
case
,
and
Fulwoods
case
.
118.
It
was
agreed
by
the
Court
,
that
upon
a
Certiorari
to
remove
an
Indictment
out
of
an
Inferiour
Court
,
that
the
Defendant
shall
be
bounden
in
a
Recognisance
to
prosecute
with
effect
,
viz.
to
Traverse
the
Indictment
,
or
to
quash
it
for
some
defect
.
And
if
he
doth
not
appear
,
an
Attachment
shall
issue
out
against
him
.
Iustice
Crooks
Case
.
119.
IT
was
agreed
by
the
Court
,
That
although
a
Bill
be
preferred
in
the
Starchamber
against
a
Judge
for
Corruption
,
or
any
other
,
for
any
great
misdemeanour
;
yet
if
the
Plaintiff
will
tell
the
effect
of
his
Bill
in
a
Tavern
,
or
any
other
open
place
,
and
by
that
means
scandalize
the
Defendant
;
that
the
same
is
punishable
in
another
Court
,
notwithstanding
the
suit
dependant
in
the
Starchamber
:
And
so
Iones
said
,
that
it
was
adjudged
in
a
Bill
in
the
Starchamber
against
Justice
Crooke
;
which
was
abated
,
because
it
was
brought
against
him
as
Sir
George
Crooke
only
,
without
addition
of
his
Office
and
Dignity
of
Judge
.
Pasch.
17ᵒ
Car.
in
the
Kings
Bench.
137.
PRescription
to
have
Common
for
all
his
cattle
Commonable
,
is
not
good
,
for
thereby
he
may
put
in
as
many
beasts
as
he
will
.
But
a
Prescription
to
have
Common
for
his
cattle
commonable
levant
and
couchant
,
is
a
good
Prescription
.
And
it
was
said
,
that
that
was
Sayes
case
of
the
County
of
Lincoln
adjudged
in
this
Court
.
138.
In
Tompson
and
Hollingsworths
case
,
it
was
agreed
,
That
a
Court
of
Equity
cannot
meddle
with
a
cause
after
it
hath
received
a
lawful
Trial
and
Judgment
at
the
Common
Law
,
although
that
the
Judgment
be
surreptitious
.
139.
The
Statute
of
31
Eliz.
enacts
,
That
if
a
man
be
presented
,
admitted
,
instituted
,
and
inducted
upon
a
Simoniacal
contract
,
that
they
shall
be
utterly
void
,
&c.
Whether
the
Church
shall
be
void
without
deprivation
,
or
sentence
declaratory
in
the
Spiritual
Court
or
not
,
was
the
Question
in
a
Quare
impedit
brought
by
Sir
Iohn
Rowse
against
Ezechiel
Wright
.
Rolls
and
Bacon
Serjeants
,
That
it
is
absolutely
void
without
sentence
declaratory
,
&c.
Where
the
Statute
makes
a
thing
void
,
it
shall
be
void
according
to
the
words
of
the
Statute
,
unless
there
shall
be
inconvenience
or
prejudice
to
him
for
whom
the
Statute
was
made
.
The
Statute
of
8
H.
6.
cap.
10.
That
an
utlagary
shall
be
void
if
process
do
not
issue
to
the
place
where
the
party
is
dwelling
;
yet
it
is
not
void
before
Errour
brought
.
The
Statutes
of
1
Eliz.
&
31
Eliz.
That
all
Leases
by
a
Bishop
not
warranted
&c.
shall
be
void
:
They
are
not
void
,
but
voidable
only
;
which
agreeth
with
the
reason
of
the
Rule
given
before
.
The
Statute
of
18
H.
6.
6.
That
if
the
King
grant
Lands
by
Patent
not
found
in
the
Office
,
that
the
Patent
shall
be
void
;
it
is
void
presently
,
M.
30
H
6.
Grants
92.
and
Stamford
61.
although
they
be
matter
of
Record
.
The
Statute
of
31
Eliz.
is
expresly
that
it
shall
be
void
,
frustrate
,
and
of
none
effect
;
therefore
by
the
Rule
before
given
,
it
shall
be
absolutely
void
.
M.
10
Iac.
Stamford
and
Dr.
Hutchinsons
case
.
Resolved
that
an
Incumbent
presented
by
Simony
cannot
sue
for
Tythes
against
his
Parishioners
;
a
villain
purchaseth
an
Advowson
,
the
Church
becomes
void
,
the
Lord
presents
by
Simony
,
and
the
Clark
is
admitted
,
Institute
,
and
Inducted
,
yet
it
is
void
,
and
doth
not
gain
the
Advowson
to
the
Lord.
Institut.
120
a.
If
an
Incumbent
take
a
second
Benefice
,
the
first
is
meerly
void
.
4
Rep.
Hollands
Case
.
The
difference
is
,
where
it
is
of
the
value
of
8
l.
where
not
.
And
there
is
difference
betwixt
avoidance
by
Statute
,
and
avoidance
by
the
Ecclesiastical
Law
.
Avoydance
is
a
thing
of
which
the
Common
Law
takes
notice
,
and
shall
be
tried
by
Jury
if
it
be
avoydance
in
fact
;
if
an
avoydance
in
Law
,
by
the
Judges
.
If
a
Parson
doth
not
read
the
Articles
according
to
the
Statute
of
13
Eliz.
it
is
ipso
facto
void
,
without
sentence
.
6
Rep.
29.
Greens
case
30
Eliz.
Eatons
case
.
Instit.
120.
a.
express
in
the
point
.
And
the
difference
is
,
that
before
the
Statute
of
31
Eliz.
it
was
only
voidable
by
deprivation
;
but
now
by
the
Statute
it
is
absolutely
void
.
Mich.
9
▪
Iac.
Cobbert
and
Hitchins
case
.
Mich.
42
Eliz.
Baker
and
Rogers
case
.
2
Iac.
Goodwins
case
,
in
Com'
Banc.
in
all
which
cases
it
was
not
resolved
,
but
passed
tacitely
,
and
without
denial
,
That
a
Presentation
by
Simony
was
void
,
without
declaratory
Sentence
.
It
was
objected
,
that
it
is
clear
by
the
Ecclesiastical
Law
,
it
is
not
void
without
a
Sentence
declaratory
.
It
is
answered
,
Of
things
of
which
our
Law
and
the
Ecclesiastical
Law
take
conusance
,
we
are
only
to
relie
upon
our
Law
,
and
not
upon
the
Ecclesiastical
Law
:
especially
when
the
Ecclesiastical
is
repugnant
or
contrary
to
our
Law
,
as
in
this
Case
it
is
.
The
Judges
of
the
Common
Law
shall
judge
the
Church
void
,
or
not
void
.
Fitz.
Annuity
45.
12
&
13
Iac.
in
the
Kings
Bench
,
Hitchin
and
Glovers
case
,
in
an
Ejectione
firme
.
In
this
case
it
was
resolved
,
That
if
I.
S.
marry
two
wives
,
the
Judges
of
the
Common
Law
may
take
conusance
of
it
:
yet
marriage
is
meerly
an
Ecclesiastical
thing
.
It
was
objected
,
That
the
first
branch
of
the
Statute
of
31
Eliz.
that
it
shall
be
void
,
&c.
Secondly
,
that
it
shall
be
void
as
if
he
were
naturally
dead
,
&c.
So
that
the
adding
of
these
words
(
as
if
he
were
naturally
dead
)
in
the
later
clause
,
prove
that
it
was
the
meaning
of
this
Statute
,
that
it
should
not
be
void
in
the
first
case
,
without
Sentence
declaratory
.
It
is
answered
,
There
is
a
difference
in
words
,
not
in
substance
,
or
the
intent
,
&
qui
haeret
in
litera
,
&c.
Iermin
and
Taylor
Serjeants
,
That
it
is
not
void
before
Sentence
,
&c.
First
,
Admission
,
Institution
,
and
Induction
,
are
Judicial
acts
,
and
done
by
the
Bishop
:
and
therefore
shall
not
be
void
before
an
act
done
to
make
them
void
,
which
is
Sentence
declaratory
,
or
deprivation
.
Secondly
,
the
Statute
of
31
Eliz.
saith
,
it
shall
be
void
,
not
that
it
is
,
&c.
Thirdly
,
the
Ecclesiastical
L●w
is
,
That
no
Presentation
,
&c.
shall
be
void
before
Sentence
,
&c.
Fourthly
,
the
Ecclesiastical
Law
is
Judge
of
it
,
&c.
Plenarty
shall
be
tried
by
the
Bishop
,
not
by
Jury
.
6
Rep.
49.
a.
Refusal
shall
not
be
tried
by
Jury
,
but
Death
shall
.
5
Rep.
57.
9
H.
7.
Profession
shall
be
tried
by
the
Spiritual
Court
,
4
Rep.
71.
b
▪
4.
vid.
4.
Rep.
29.
a.
the
credit
which
our
Law
gives
to
the
Ecclesiastical
Law
.
It
is
there
put
,
That
one
was
divorced
without
his
knowledge
,
which
was
said
to
be
a
strange
case
.
Fifthly
the
Presentee
by
Simony
doth
remain
Incumbent
de
facto
,
although
not
de
jure
;
and
that
by
the
words
of
the
Statute
which
makes
the
Church
void
,
as
to
the
King
only
,
not
as
to
the
Incumbent
,
without
declaratory
Sentence
:
and
the
Church
is
no
more
capable
to
have
two
Incumbents
,
than
a
woman
to
have
two
husbands
.
There
is
a
difference
where
the
Incumbent
presented
by
Simony
is
alive
,
the
same
is
not
void
in
facto
,
without
sentence
declaratory
:
but
if
he
be
dead
,
there
itis
.
And
this
difference
stands
upon
the
two
clauses
in
the
Statute
of
31
Eliz.
And
the
Statute
of
17
Car.
of
Election
of
Burgesses
,
taken
notice
of
Avoidance
de
facto
&
de
jure
.
Trinit.
16
Car.
in
Com.
Banc.
Ogelbics
case
.
One
was
Presented
within
the
age
o●
twenty
three
years
,
it
did
not
give
Lapse
without
notice
:
for
it
was
avoidance
in
Law
,
not
in
Fact
.
vid.
Stat.
9.
Eliz.
for
Excommunicating
a
striker
in
the
Churchyard
,
&c.
This
Statute
of
31
Eliz.
differs
from
the
Statute
of
1
Eliz.
for
not
reading
of
the
Articles
.
Those
Statutes
say
,
that
it
shall
be
void
ipso
facto
,
but
not
so
in
our
Case
.
And
the
Cases
cited
for
Authority
in
the
point
,
are
betwixt
party
and
party
,
and
not
in
case
of
a
third
person
,
as
our
case
is
.
18
Eliz.
Dyer
A
meer
Lay-man
is
presented
,
it
is
not
ipso
facto
void
,
without
Sentence
.
So
it
is
of
one
within
the
age
of
nine
years
;
for
he
cannot
govern
others
.
Trinit.
4
Iac.
in
the
Common
Pleas
,
Cooke
and
Stranges
case
.
The
King
Presents
,
and
before
Institution
Presents
another
,
it
is
good
:
but
in
the
interim
,
the
King
ought
to
repeal
his
first
presentment
,
and
that
is
a
revocation
,
vid.
Dyer
292.
a.
where
it
is
a
Quere
,
Whether
he
need
not
to
alledge
that
a
Repeal
was
brought
and
shewed
,
&c.
The
King
grants
,
and
afterwards
makes
a
second
Grant
of
the
same
thing
.
There
are
many
Examples
in
Brooke
and
Fitzherbert
,
that
it
is
not
good
without
a
Repeal
.
But
this
Case
,
viz.
of
6
H.
8
,
9.
extends
only
to
●and
,
and
not
to
an
Advowson
,
&c.
But
it
was
resolved
by
all
the
Judges
,
That
the
Church
was
void
by
the
Statute
of
31
Eliz.
to
all
purposes
,
and
to
all
persons
,
as
to
the
P●r●shioners
,
as
to
a
stranger
,
who
brings
Trespass
,
or
Ejectione
firme
as
to
the
King
,
as
to
him
who
Presents
;
and
that
without
deprivation
,
or
Sentence
declaratory
in
the
Ecclesiastical
Court
:
And
accordingly
Judgment
was
given
.
Hichcocke
against
Hichcocke
.
140.
THe
Case
was
this
:
The
Vicar
did
contract
with
a
Parishioner
to
pay
so
much
for
encrease
of
Tithes
,
and
died
;
and
his
Successor
fued
in
the
Ecclesiastical
court
for
them
.
And
a
Prohibition
was
prayed
,
and
granted
by
all
the
Justices
.
And
here
it
was
said
,
That
a
real
Contract
made
by
the
Parson
,
and
confirmed
by
the
Ordinary
,
could
not
be
altered
in
the
Spiritual
Court
.
And
by
Serjeant
Mallet
;
a
real
accord
though
it
be
between
Spiritual
Persons
,
and
of
Spiritual
things
yet
it
is
only
questionable
at
the
Common
Law
.
20
E.
3.
Annuity
32.
38
E.
3.
6.
8
&
19.
And
by
Serjeant
Clarke
,
Real
composition
by
a
Parson
,
who
claims
not
any
encrease
of
the
endowment
to
the
Parsonage
,
shall
not
binde
his
Successor
.
The
words
of
the
Contract
here
were
,
inter
se
convenerunt
:
and
that
is
no
real
Composition
,
although
that
the
Bishop
call
it
so
,
realis
Compositio
,
and
his
calling
of
it
so
doth
not
alter
the
nature
of
it
,
but
it
remains
a
Personal
agreement
;
and
so
shall
not
bind
the
Successor
,
although
it
be
confirmed
by
the
Bishop
.
A
Parson
cannot
do
any
thing
to
the
damage
of
his
Successor
.
The
Vicar
took
Oath
,
That
they
were
not
for
encrease
of
Tithes
:
the
Ordinary
being
a
stranger
to
the
Composition
,
is
not
made
a
party
by
his
Confirmation
,
nor
is
the
Composition
altered
by
it
.
Littleton
Sect.
335.
The
Lord
confirms
the
Land
to
the
Tenant
,
the
same
doth
not
alter
the
Tenure
,
nor
prejudice
the
Lord
.
The
power
of
the
Bishop
,
augendi
&
minuendi
the
Portion
of
the
Vicar
,
is
by
the
Common
Law
,
for
general
Cure
of
Souls
.
The
Parson
and
Vicar
have
privity
betwixt
them
.
40
E.
3.
28.
31
H.
6.
14
,
16
Ass
Annuity
32.
2
Rep.
44.
Plow
.
Com.
496.
21.
E.
3.
5.
10
H.
7.
18.
Dyer
43
&
84.
141.
A
Prohibition
was
prayed
to
the
Court
of
Requests
,
and
the
Case
was
thus
:
A
Feme
sole
possessed
of
a
Term
,
conveyed
the
same
over
in
Trust
for
her
,
and
Covenanted
with
I.
S.
whom
she
did
intend
to
marry
,
that
he
should
not
meddle
with
it
,
and
for
that
purpose
took
a
Bond
of
him
.
They
intermarried
:
he
may
intermeddle
with
it
,
but
he
shall
not
have
it
;
and
by
Equity
he
cannot
assigne
it
,
by
reason
of
the
Covenant
before
marriage
.
A
Feme
sole
conveys
a
Term
in
Trust
,
and
then
marrieth
;
the
husband
assignes
it
,
the
Trust
,
not
the
Estate
shall
pass
,
by
Reeve
and
Foster
.
But
by
all
the
Judges
a
Prohibition
shall
not
be
,
for
it
is
matter
only
for
Equity
:
But
if
they
direct
Demisit
,
or
non
demisit
,
Assignavit
,
or
non
,
&c.
then
they
exceed
their
Jurisdiction
,
and
a
Prohibition
heth
.
142.
A
woman
brought
a
Writ
of
Dower
,
and
recovered
,
and
upon
a
suggestion
made
upon
the
Roll
that
the
husband
died
seised
,
a
Writ
of
enquiry
of
Damages
issued
forth
.
And
before
the
Retorn
thereof
,
a
Writ
of
Error
was
brought
;
and
it
was
by
Steward
against
Steward
;
and
two
things
were
moved
:
1.
Whether
Error
would
lie
before
the
Retorn
of
the
Writ
of
Enquiry
,
or
not
.
2.
Whether
the
Writ
of
Error
be
a
Supersedeas
to
the
Writ
of
Enquiry
.
And
by
Taylor
and
Rolls
Serjeants
,
That
Error
doth
not
lie
before
Judgment
upon
the
Writ
of
Enquiry
.
And
this
case
they
compared
to
Medcalfes
case
11
Rep.
38.
But
by
Serjeant
Bacon
it
is
well
brought
.
Dower
is
by
the
Common
Law
,
and
damages
are
given
by
the
Statute
of
Merton
,
and
that
is
the
main
Judgment
.
5.
Rep.
58
,
59.
And
the
very
case
is
put
in
Medcalfes
case
,
11
Rep
▪
and
distinguished
from
other
cases
.
And
it
was
argued
by
another
Serjeant
,
That
the
Error
was
well
brought
,
because
that
in
Dower
the
Judgment
doth
determine
the
Original
:
and
therefore
at
the
Common
Law
Error
will
well
lie
.
And
the
damages
are
given
by
the
Statute
of
Merton
,
but
that
doth
not
alter
the
Judgment
,
or
the
nature
of
the
Action
.
It
differs
from
the
case
of
Judgment
in
an
Ejectione
firme
,
and
Accompt
;
for
after
such
Judgments
No●suit
may
be
:
but
not
so
in
the
case
of
Dower
,
in
which
Judgment
is
,
quod
recuperet
,
&c.
A
Precipe
is
brought
against
two
,
one
pleads
to
issue
,
the
other
an
insufficient
Plea
,
upon
which
Judgment
is
given
.
No
Error
lieth
before
Judgment
be
given
for
the
other
:
for
the
whole
matter
is
not
determined
.
But
in
several
Precipes
against
two
,
it
is
otherwise
.
34.
H.
6.
18.
Fitz.
Scire
facias
.
11
Rep.
39.
a.
b.
In
case
of
Ejectione
firme
it
is
a
Quere
if
Error
may
be
brought
,
&c.
And
Bankes
Chief
Justice
said
That
it
had
been
adjudged
both
ways
:
but
that
differs
from
our
case
,
for
in
that
damages
are
given
by
the
Common
Law
.
Judgment
is
,
in
a
Quare
impedit
Error
may
be
brought
before
,
&c.
which
is
like
to
our
case
,
for
damages
in
both
cases
are
given
by
Statute
.
And
where
it
was
objected
,
That
thereby
damages
should
be
lost
;
He
answered
,
No.
For
the
Kings
Bench
may
award
a
Writ
of
Enquiry
of
Damages
.
And
the
11
Rep.
is
express
Authority
.
2.
The
Error
is
no
Supersedeas
,
&c.
11
Iac.
in
Tincke
and
Brownes
case
,
it
was
ruled
and
resolved
,
That
a
Writ
of
Error
brought
,
was
not
a
Supersedeas
to
the
Writ
of
Enquiry
of
damages
.
But
it
was
resolved
by
all
the
Judges
,
that
the
Error
was
well
brought
,
for
the
reasons
before
given
:
and
that
Error
is
a
Supersedeas
to
the
Writ
of
Enquiry
.
And
it
was
entred
for
a
Rule
,
That
in
all
Writs
of
Enquiry
of
damages
,
notice
ought
to
be
given
aswel
in
Real
as
Personal
Actions
.
143.
If
a
Prisoner
will
remove
himself
by
a
Habeas
Corpus
,
he
shall
pay
the
Costs
of
the
Removal
:
but
it
the
Plaintiff
will
remove
the
Prisoner
,
he
shall
pay
reasonable
charges
.
144.
Dickenson
Libelled
against
Barnaby
in
the
Spiritual
Court
for
these
words
:
D.
is
a
Beastly
Quean
,
Drunken
Quean
,
Copper-nose
Quean
,
and
she
was
one
cause
wherefore
Barnaby
left
his
wife
,
and
hath
mispended
five
hundred
pounds
,
and
that
she
keeps
company
with
Whores
.
And
a
Prohibition
was
prayed
and
granted
,
because
that
the
words
are
not
actionable
.
145.
Hill
.
16.
Car.
in
this
Court
.
A.
a
poor
man
sold
his
estate
for
twenty
pound
yearly
,
to
be
paid
during
his
life
:
for
the
security
of
which
,
the
Vendee
was
bound
to
A.
and
another
in
a
thousand
pounds
;
the
other
releaseth
the
Bond
,
the
mony
not
being
paid
.
A.
is
compelled
to
have
Relief
of
the
Parish
for
his
maintenance
.
The
Churchwardens
and
A.
exhibited
a
Bill
in
the
Court
of
Requests
,
and
there
had
remedy
.
146.
A.
and
B.
his
wife
Present
to
a
Church
,
to
which
they
have
no
Right
.
Question
,
Whether
that
doth
grant
any
thing
to
the
wife
or
no
?
Resolved
,
No.
For
the
wife
is
at
the
will
of
her
husband
,
and
Presentation
is
but
Commendation
,
or
the
Act
of
the
husband
,
&c.
And
it
is
not
like
unto
an
Entry
in
Land
by
them
.
Mich.
16
Car.
betwixt
Nesson
and
Hampton
.
Otherwise
it
is
when
the
wife
hath
Right
.
Sir
John
Pits
Case
.
147.
IN
the
case
of
Sir
Iohn
Pits
Philizor
of
London
,
it
was
moved
,
that
his
Executors
might
have
the
profits
of
the
Writs
which
are
to
be
subscribed
with
his
name
,
forasmuch
as
all
Process
of
the
same
suit
ought
to
have
the
same
name
subscribed
to
them
:
for
the
attendance
of
them
being
necessary
,
they
ought
to
have
the
profits
according
to
it
.
Tooleys
case
,
Hobarts
Reports
.
The
reason
which
was
given
to
the
contrary
was
,
because
there
was
another
Officer
,
who
is
to
answer
any
damages
,
by
reason
whereof
he
is
to
have
the
benefit
.
148.
Judges
are
the
only
Expositors
of
Acts
of
Parliaments
,
although
they
concern
Spiritual
things
,
Searles
case
,
Hobarts
Rep.
437.
4.
E.
4.
37
,
38.
149.
If
horses
be
traced
together
,
they
are
but
one
distress
.
And
note
,
Fetters
upon
a
horse
leg
,
may
be
distreined
with
the
horse
.
Trin.
17ᵒ
Car.
in
the
Common
Pleas.
175.
WHite
exhibited
a
Bill
in
the
Court
of
Request
against
Grubbe
for
Money
due
upon
account
;
upon
which
Mallet
moved
for
a
Prohibition
,
because
it
's
no
other
than
in
the
nature
of
a
debt
upon
account
,
of
which
a
Court
of
Equity
hath
no
Jurisdiction
,
for
by
such
means
the
King
should
lose
his
Fine
,
the
Defendant
should
be
put
to
another
Answer
upon
his
Oath
,
and
which
is
above
all
,
they
would
refer
the
merits
of
the
Cause
to
others
,
and
according
to
their
Certificates
make
a
Decree
,
so
that
by
this
means
they
would
create
Courts
of
Equity
without
number
.
Serjeant
Clark
contrary
against
the
Prohibition
,
for
he
said
the
Defendant
had
exhibited
a
Cross
Bill
,
and
so
had
affirmed
the
Jurisdiction
,
and
he
ought
to
have
demurred
to
the
Jurisdiction
;
and
he
said
that
where
parties
assent
to
a
Decree
,
there
the
Kings
Bench
will
not
grant
a
Prohibition
.
For
he
said
,
that
by
the
same
reason
that
a
man
may
chuse
Arbitrators
,
he
may
elect
his
Judges
;
and
further
,
he
said
that
the
suit
was
for
moneys
due
for
divers
things
delivered
by
the
Plaintiff
being
a
Chandler
in
a
Country-town
,
which
he
ought
to
prove
to
be
delivered
,
and
he
had
no
proof
:
but
Crawley
and
Reeve
Justices
,
the
others
being
absent
,
granted
a
Prohibition
,
because
it
is
no
other
but
an
Action
of
debt
upon
account
;
and
Crawley
said
,
that
the
particulars
are
out
of
doors
by
the
account
,
&
in
debt
brought
,
it
is
sufficient
to
say
,
that
the
Defendant
was
indebted
to
him
for
divers
Commodities
.
And
they
accounted
,
and
upon
the
account
the
defendant
was
found
to
be
in
debt
to
him
such
a
sum
,
&c.
And
note
,
it
was
said
in
the
Bill
that
the
Plaintiff
had
no
Witnesses
to
prove
the
delivery
of
the
things
aforesaid
,
and
notwithstanding
they
granted
a
Prohibition
.
for
they
said
,
there
is
no
remedy
in
the
Court
of
Requests
if
you
have
no
proof
.
But
is
was
said
that
the
Defendant
in
the
Court
of
Requests
had
confessed
the
delivery
of
the
things
in
his
answer
there
.
For
which
cause
the
Judges
said
,
that
this
confession
there
might
be
given
in
evidence
against
him
at
Law
.
176.
Three
covena●●ed
joyntly
and
severally
with
two
severally
,
and
afterwards
one
of
the
Covenanters
married
with
one
of
the
Covenantees
:
by
Serjeant
Mallet
the
Covenant
is
gone
;
besides
,
a
man
cannot
covenant
with
two
severally
,
as
a
man
cannot
bind
himself
to
two
severally
.
Further
,
they
joyned
in
in
Action
where
the
covenant
is
several
,
that
which
they
should
not
do
.
Crawley
and
Reeve
Justices
did
conceive
that
a
man
might
covenant
with
two
severally
,
because
that
it
differs
from
the
case
of
a
Bond
,
for
a
covenant
sounds
only
in
damages
,
but
they
conceived
clearly
that
they
ought
not
to
joyn
in
action
,
and
it
was
adjourned
.
177.
It
was
said
in
a
Case
at
the
Bar
by
Sergeant
Godbold
that
it
was
a
Rule
in
the
Kings
Bench
,
That
although
an
Atturney
be
dead
,
yet
the
Warrant
of
Atturney
might
be
siled
,
which
was
not
denied
by
the
Court
here
.
Lawson
and
Cookes
Case
.
178.
IN
a
second
deliverance
,
which
was
entred
Hill
.
16
Car.
Rot.
1530
:
the
Case
was
thus
:
A
man
had
a
Rent-charge
in
Fee
,
and
for
Arrerages
thereof
,
did
distrain
,
&
then
granted
the
same
over
.
And
the
Question
here
was
,
Whether
he
ought
to
avow
or
justifie
;
and
the
doubt
rested
upon
this
,
viz.
Whether
the
arrerages
be
gone
by
the
grant
of
the
rent
,
notwithstanding
the
distress
before
taken
,
or
not
.
By
Serjeant
Ca●lis
the
arrerages
are
lost
,
for
without
question
he
cannot
have
debt
.
And
he
cannot
avow
,
for
that
depends
upon
the
inheritance
which
is
gone
by
the
grant
,
4
Rep.
5.
Ognels
case
,
&
19
H.
6.
42.
b.
Acc.
And
here
he
hath
avowed
and
not
justified
,
as
●e
ought
for
to
excuse
himself
of
damages
,
and
therefore
it
is
naught
.
But
he
took
this
difference
betwixt
the
Act
of
God
,
and
the
Act
of
the
party
,
as
here
it
is
;
where
it
is
by
the
Act
of
God
,
as
where
there
is
grantee
for
anothers
life
of
●●ent
,
and
cestuy
qui
vie
dieth
,
or
where
a
man
hath
rent
〈◊〉
the
right
of
his
wife
and
she
dieth
,
in
those
cases
the
arresages
shall
not
be
lost
:
But
where
a
man
grants
over
the
rent
as
in
our
Case
which
is
his
own
Act
,
there
the
arrerages
are
lost
.
Institut.
285.
A
man
intitled
to
waste
accepts
of
a
surrender
,
it
destroys
his
Action
,
otherwise
where
it
is
by
act
of
Law
.
So
if
a
man
bring
debt
for
twenty
pounds
,
and
afterwards
accepts
ten
pounds
,
that
shall
abate
the
Writ
,
because
that
it
is
his
own
Act
;
and
this
difference
may
be
collected
out
of
the
book
of
19
H.
6.
Besides
,
until
avowry
it
doth
not
appear
upon
Record
for
what
the
distress
is
taken
,
whether
for
rent
,
or
for
damage
feasant
.
Serjeant
Godbold
contrary
,
that
he
ought
to
avow
,
because
the
rent
in
this
case
is
not
gone
;
and
he
said
,
there
was
a
difference
between
this
Case
and
Ognells
case
,
for
there
was
no
distress
taken
before
the
rent
granted
,
as
here
is
;
and
there
the
privity
is
gone
,
and
the
distress
follows
the
rent
,
but
here
we
have
a
pledge
for
the
rent
which
is
the
distress
,
and
return
of
the
cattle
if
it
be
found
for
us
,
19
H.
6.
41.
a.
Where
the
distress
was
lawfully
taken
at
the
beginning
,
there
we
may
avow
,
and
it
is
good
to
intitle
us
to
a
retorn
,
22
E.
4.
36.
Where
there
is
a
duty
at
the
time
of
the
distress
,
there
he
shall
always
avow
and
not
justifie
,
and
at
least
it
turns
the
Avowry
into
a
Justification
in
our
Case
,
so
as
you
shall
not
make
us
Trespassers
,
but
that
we
may
well
justifie
to
save
our
damages
.
Crawley
Justice
:
that
the
Avowry
is
turned
into
a
Justification
,
and
that
there
is
sufficient
substance
in
the
Plea
to
answer
the
unjust
taking
the
distress
.
Justice
Reeve
:
that
it
is
good
by
way
of
Avowry
,
for
the
distress
being
lawfully
taken
at
the
time
,
it
shall
not
take
away
his
avwry
,
&
therefore
he
shall
have
Retorn
,
for
that
was
as
a
gage
for
the
rent
,
and
therefore
differs
from
the
other
Cases
.
Justice
Foster
put
this
Case
at
the
Common
Law
:
Distress
was
taken
,
and
before
avowry
Tenant
for
life
died
,
Whether
he
shall
avow
or
justifie
.
But
all
agreed
,
that
at
the
least
the
Avowry
is
turned
into
a
Justification
,
but
it
was
adjourned
.
179.
The
Court
demanded
of
the
Protonotharies
,
Whether
a
man
might
make
a
new
assignment
to
a
special
Bar
;
and
they
said
no
,
but
to
a
common
Bar
only
,
viz.
that
the
Trespass
(
if
any
were
)
was
in
Bl.
Acre
,
there
ought
to
be
a
new
assignment
by
the
Plaintiff
:
but
Reeve
and
Crawley
Justices
(
the
other
being
absent
)
held
clearly
,
that
the
Plaintiff
might
make
a
new
assignment
to
a
special
Bar
;
and
further
they
said
,
that
the
Plaintiff
if
he
would
might
trise
the
Desendant
upon
his
Plea
,
but
we
will
not
suffer
him
to
do
so
,
because
that
his
Plea
is
meerly
to
make
the
Plaintiff
to
shew
the
place
certain
in
his
Replication
in
which
the
Trespass
was
done
.
180.
The
Disseisee
levieth
a
Fine
;
by
Reeve
and
Crawley
,
Justices
,
it
shall
not
give
right
to
the
Disseisor
,
because
that
this
Fine
shall
enure
only
by
way
of
Estoppel
,
and
Estoppels
bind
only
privies
to
them
and
not
a
stranger
,
and
therefore
the
Disseisor
here
shall
not
take
benefit
of
it
,
and
therefore
they
did
conceive
the
2
Rep.
56.
a.
to
be
no
Law
,
Vid.
3
Rep.
90.
a
&
6
Rep.
70.
a.
181.
Serjeant
Callis
prayed
a
Prohibition
to
the
Court
of
Requests
for
cause
of
priority
of
Suit
,
but
by
Foster
and
Crawley
Justices
(
the
other
being
absent
)
priority
of
Suit
was
nothing
,
the
Bill
being
exhibited
there
before
Judgment
given
in
this
Court
.
182.
The
Case
of
White
and
Grubbe
before
being
moved
again
,
it
was
said
in
this
case
by
Reeve
and
Foster
Justices
,
that
where
a
man
is
indebted
unto
another
for
divers
wares
,
and
the
debt
is
superannuated
according
to
the
Statute
of
21
Iac.
cap.
16.
and
afterwards
they
account
together
,
and
the
party
found
to
be
indebted
unto
the
other
party
,
in
so
much
mony
for
such
wares
,
in
that
Case
although
that
the
party
were
without
remedy
before
,
yet
now
he
may
have
debt
upon
accompt
,
because
that
now
he
is
not
bound
to
shew
the
particulars
,
but
it
is
sufficient
to
say
,
that
the
Defendant
was
indebted
to
the
Plaintiff
upon
accompt
,
pro
diversis
mercimoniis
,
&c.
183.
A
Prohibition
was
prayed
unto
the
Council
of
the
Marches
of
Wales
,
and
the
Case
was
thus
:
A
man
being
posfessed
of
certain
goods
,
devised
them
by
his
will
unto
his
wife
for
her
life
,
and
after
her
decease
to
I.
S.
and
died
.
I.
S.
in
the
life
of
the
wife
did
commence
Suit
in
the
Court
of
Equity
,
there
to
secure
his
Interest
in
Remainder
,
and
thereupon
this
Prohibition
was
prayed
.
And
the
Justices
,
viz.
Banks
Chief
Justice
,
Crawley
,
Foster
(
Reeve
being
absent
)
upon
consideration
of
the
point
before
them
,
did
grant
a
Prohibition
,
and
the
reason
was
because
the
devise
in
the
remainder
of
goods
was
void
,
and
therefore
no
remedy
in
equity
,
for
Aequitas
sequitu●
legem
.
And
the
Chief
Justice
took
the
difference
,
as
is
in
37
H.
6.
30.
Br.
Devise
13.
and
Com.
Welkden
&
Elkingtons
Case
,
betwixt
the
devise
of
the
use
and
occupation
of
goods
,
and
the
devise
of
goods
themselves
.
For
where
the
goods
themselves
are
devised
,
there
can
be
no
Remainder
over
;
otherwise
,
where
the
use
or
occupation
only
is
devised
.
It
is
true
that
heir
looms
shall
descend
,
but
that
is
by
custome
and
continuance
of
them
,
and
also
it
is
true
that
the
devise
of
the
use
and
occupation
of
Land
is
a
devise
of
the
land
it self
,
but
not
so
in
case
of
goods
,
for
one
may
have
the
occupation
of
the
goods
,
and
another
the
Interest
,
and
so
it
is
where
a
man
pawns
goods
and
the
like
:
For
which
cause
the
Court
all
agreed
that
a
Prohibition
should
be
awarded
.
Trin.
17ᵒ
Car.
in
the
Common
Pleas.
Dewel
against
Mason
.
186.
IN
an
Action
upon
the
Case
upon
an
Award
,
the
case
was
this
:
The
Award
was
that
the
Defendant
should
pay
to
the
Plaintiff
eight
pound
,
or
three
pound
and
Costs
of
suit
in
an
Action
of
Trespass
betwixt
the
Plaintiff
and
Defendant
,
as
appears
by
a
note
under
the
Plaintiffs
Attorneys
hand
,
ad
libitum
defendentis
,
&c.
And
the
Plaintiff
doth
not
aver
that
a
note
was
delivered
by
the
Attorney
of
the
Plaintiff
to
the
Defendant
;
and
the
Defendant
pleaded
Non
assumpsit
,
and
it
was
found
for
the
Plaintiff
,
and
it
was
moved
in
arrest
of
Judgment
for
the
reason
given
before
:
Rolls
contrary
,
that
there
needs
no
averment
,
and
he
said
it
was
Wilmots
case
adjudged
in
this
Court
,
Hill
.
15
Car.
where
the
Case
was
,
that
the
Defendant
should
pay
to
the
Plaintiff
such
costs
as
shall
be
delivered
by
note
of
the
Attorneys
hand
:
and
it
was
here
adjudged
that
there
needs
no
averment
,
because
it
was
to
be
done
by
a
stranger
,
but
otherwise
it
had
been
,
if
it
had
been
to
be
done
by
the
Plaintiff
himself
:
and
by
the
Justices
,
the
only
question
here
is
,
Whether
the
Attorney
shall
be
taken
for
a
stranger
or
not
?
Justice
Foster
:
that
the
Defendant
ought
first
to
make
his
election
;
which
is
,
to
pay
either
the
eight
pound
which
is
certain
,
or
the
costs
which
shall
be
delivered
by
a
note
of
the
Attorney
.
Besides
,
here
the
Attorney
is
a
stranger
,
because
the
suit
is
ended
,
and
to
the
Defendant
he
is
totally
a
stranger
,
and
therefore
he
ought
to
seek
him
to
have
the
note
delivered
to
him
.
But
notwithstanding
he
did
conceive
that
as
this
Case
is
,
Judgment
ought
to
be
stayed
,
because
the
Plaintiff
hath
not
well
entitled
himself
to
the
Action
,
because
he
hath
not
averred
that
there
were
costs
expended
in
such
a
suit
:
and
in
the
Case
ci●ed
by
Rolls
,
the
Plaintiff
did
aver
the
costs
incertain
.
Justice
Crawley
:
it
is
without
question
,
the
Defendant
hath
Election
in
this
case
▪
but
as
this
Case
is
,
he
ought
to
have
notice
:
and
if
the
Case
had
been
such
,
that
the
Plaintiff
himself
had
been
to
have
delivered
the
note
,
then
without
question
there
ought
to
be
notice
,
and
here
the
Attorney
is
no
stranger
,
but
is
a
servant
to
the
Plaintiff
,
as
every
Attorney
is
,
And
I
conceive
,
that
if
the
Case
had
been
that
the
Plaintiffs
servant
had
been
to
deliver
such
a
note
,
that
there
notice
ought
to
be
given
:
And
for
want
thereof
,
in
this
Case
I
conceive
that
the
Judgment
ought
to
be
stayed
.
Bankes
Chief
Justice
:
I
doubt
upon
the
different
Opinions
of
my
Brethren
,
whether
Judgment
ought
to
be
stayed
or
not
.
I
agree
that
the
Defendant
hath
Election
in
this
Case
;
and
further
,
I
agree
that
where
a
thing
is
to
be
done
by
the
Plaintiff
or
D●fendant
himself
,
there
notice
ought
to
be
given
;
but
otherwise
,
in
Case
of
a
stranger
,
and
upon
this
difference
stands
our
Books
:
as
10
H.
7.
and
all
our
Books
:
but
the
Question
here
is
,
Whether
the
Attorney
be
a
stranger
or
not
?
and
I
conceive
that
it
is
not
in
the
power
of
the
Plaintiff
to
compel
him
to
bring
the
note
,
and
is
all
one
as
a
stranger
,
and
therefore
the
Defendant
ought
to
seek
the
Attorney
to
deliver
this
unto
him
:
but
the
Case
was
adjourned
,
because
Justice
Reeve
was
not
present
in
Court
.
187.
A.
said
to
B.
Thou
hast
killed
my
Brother
:
for
which
B.
ought
an
Action
upon
the
Case
;
and
by
Serjeant
Whitfield
it
will
not
lie
,
because
it
is
not
averred
that
the
Brother
of
the
Defendant
was
dead
at
the
time
,
and
if
he
were
not
dead
,
then
it
is
no
slander
,
because
the
Plaintiff
is
not
in
danger
for
it
,
4
Rep.
16.
a.
Snaggs
Case
,
A●●
.
Serjeant
Evers
contrary
,
because
the
words
imply
that
he
is
dead
,
and
besides
,
in
the
(
Innuendo
)
it
is
also
shewed
that
he
was
●ead
,
for
that
is
the
innuendo
C.
&c.
fratrem
nuper
mortuum
:
But
by
the
whole
Court
the
words
are
not
actionable
without
averment
that
he
was
dead
,
and
the
Innuendo
doth
not
help
it
,
Hobarts
Rep.
p.
8.
Miles
and
Iacobs
Case
,
acc
.
188.
A
Frenchman
had
his
Ship
taken
by
a
Dunkirk
upon
the
Sea
,
and
before
that
it
was
brought
infra
praesidia
of
the
King
of
Spain
,
it
was
driven
by
a
contrary
wind
to
Waymouth
;
and
there
the
Dunkirk
sold
the
Ship
and
Goods
to
a
Lord
in
Waymouth
:
whereupon
the
Frenchman
having
notice
of
his
ship
and
goods
to
be
there
,
libelled
in
the
Admiralty
pro
interesse
suo
,
against
the
Lord
the
Vendee
of
the
Ship
,
shewing
that
it
was
taken
by
Piracie
and
not
by
Letters
of
Mart
,
as
was
pretended
,
and
thereupon
a
Prohibition
was
prayed
,
and
by
Foster
a
Prohibition
ought
to
be
granted
,
for
whether
the
Dunkirk
took
it
by
Letters
of
Mart
or
as
a
Pirate
,
it
is
not
material
,
the
sale
being
upon
the
Land
and
infra
corpus
comitatus
;
and
so
he
said
it
was
adjudged
in
such
a
case
,
for
whether
the
sale
were
good
or
not
,
Non
constat
.
Justice
Crawley
conceived
it
should
be
hard
that
the
sale
being
void
,
if
it
were
taken
as
a
Pirate
,
or
by
Letters
of
Mart
,
not
being
brought
infra
pr●sidia
of
the
King
of
Spain
,
that
by
this
means
you
should
take
away
the
Jurisdiction
of
the
Admiralty
,
but
he
said
he
did
conceive
it
more
fit
for
the
Frenchman
to
have
brought
a
Replevin
,
which
he
said
lieth
of
a
Ship
,
or
Trover
and
Conversion
,
and
so
have
had
the
matter
found
specially
.
Bankes
Chief
Justice
conceived
that
there
should
be
a
Prohibition
,
otherwise
upon
such
pretence
that
it
was
not
lawful
prize
,
and
by
consequence
the
sale
void
,
you
would
utterly
take
away
the
Jurisdiction
of
the
Common
Law
.
But
because
there
was
some
misdemeanor
in
the
Vendee
,
the
Court
would
not
award
a
Prohibition
,
but
awarded
that
the
buyer
should
have
convenient
time
given
him
by
the
Court
of
Admiralty
to
find
out
the
seller
to
maintain
his
Title
,
and
in
the
mean
time
that
he
give
good
caution
in
the
Admiralty
,
that
if
it
be
found
against
him
,
that
then
he
restore
the
ship
with
damages
.
But
note
,
the
Court
did
agree
(
Justice
Reeve
only
absent
)
that
if
a
ship
be
taken
by
Piracie
,
or
if
by
Letters
of
Mart
,
and
be
not
brought
infra
praesidia
of
that
King
by
whose
subject
it
was
taken
,
that
it
is
no
lawful
prize
,
and
the
property
not
altered
,
and
therefore
the
sale
void
;
and
that
was
said
by
the
Pr●cto●
of
the
Frenchman
to
be
the
Law
of
the
Admiralty
.
Rudston
and
Yates
Case
.
189.
RVdston
brought
an
Action
of
debt
upon
an
Obligation
against
Yates
for
not
performance
of
an
Award
according
to
the
Condition
of
the
Bond
:
the
Defendant
pleaded
that
the
Arbitrators
Non
fecerunt
arbitrium
,
upon
which
they
were
at
issue
,
and
found
for
the
Plaintiff
;
and
it
was
now
moved
in
arrest
of
Judgment
by
Trevor
,
that
the
Defendant
was
an
Infant
,
and
therefore
that
the
submission
was
void
,
and
by
consequence
the
Bond
which
did
depend
upon
it
:
and
he
conceived
the
submission
void
,
First
,
because
it
is
a
Contract
,
and
an
Infant
cannot
contract
:
and
he
took
a
difference
betwixt
acts
done
which
are
ex
provisione
legis
,
and
acts
done
ex
provisione
of
the
Infant
;
an
Infant
may
bind
himself
for
his
diet
,
schooling
and
necessary
apparel
,
for
that
is
the
provision
of
the
Law
for
his
maintenance
;
but
a
Bond
for
other
matters
,
or
Contracts
of
other
nature
which
are
of
his
own
provision
,
those
he
cannot
do
.
Secondly
,
an
Arbitrator
is
a
Judge
;
and
if
an
Infant
should
be
permitted
to
make
an
Arbitrator
,
he
should
make
a
Judge
,
who
by
the
Law
is
not
permitted
to
make
an
Attorny
,
which
were
against
reason
.
Thirdly
,
it
is
against
the
nature
of
a
Contract
,
which
must
be
reciprocally
binding
;
here
the
Infant
should
not
be
bound
,
and
the
man
of
full
age
should
be
,
which
should
be
a
great
mischief
.
And
where
it
is
objected
,
it
may
be
for
his
benefit
:
To
that
he
answered
,
that
the
Law
will
not
leave
that
to
him
to
judge
what
shall
be
for
his
benefit
,
what
not
:
and
to
this
purpose
amongst
other
he
cited
it
to
be
adjudged
,
That
where
an
Infant
took
a
shop
for
his
trading
,
rendring
ren●
,
and
in
debt
brought
for
the
rent
the
Infant
pleaded
his
Infancie
,
the
other
replied
that
it
was
for
his
benefit
and
liv●lihood
,
and
yet
it
was
adjudged
for
the
Infant
.
vid.
13
H.
4.
12.
&
10
H.
6.
14.
Books
in
the
point
,
and
therefore
he
prayed
that
Judgment
might
be
stayed
.
Bramston
,
Heath
and
Mallet
Justices
,
(
Barckley
being
then
impeached
for
High
Treason
by
the
Parliament
)
were
clear
of
Opinion
,
That
the
submission
by
an
Infant
was
void
;
and
they
all
agreed
,
That
if
the
Infant
was
not
bound
,
that
the
man
of
full
age
should
not
be
bound
;
so
that
it
should
be
either
totally
good
,
or
totally
void
.
But
Ward
who
was
of
Counsel
with
the
Plaintiff
said
,
that
the
case
was
not
that
the
infant
submitted
himself
to
the
award
,
but
that
a
man
of
full
age
bound
himself
,
that
the
Infant
should
perform
the
Award
,
which
was
said
by
the
Court
quite
to
alter
the
Case
.
To
that
Trevor
said
,
that
the
case
is
all
one
;
for
there
cannot
be
an
Award
if
there
be
not
first
▪
submission
:
and
then
the
submission
being
void
,
the
Award
will
be
void
,
and
so
by
consequence
the
Bond
:
and
to
prove
it
,
he
cited
10
Rep.
171.
b.
where
it
was
adjudged
that
the
non-performance
of
a
void
Award
did
not
forfeit
the
Bon●
and
many
other
Cases
to
that
purpose
.
And
the
Court
agreed
That
if
the
Condition
of
a
Bond
recite
,
that
where
an
Infa●●
hath
submitted
himself
to
an
Award
,
that
the
Defendant
doth
bind
himself
that
the
Infant
shall
perform
it
,
that
the
sam●
makes
the
Bond
void
,
because
the
submission
being
void
,
all●
void
,
and
therefore
day
was
given
to
view
the
Record
.
190.
A.
and
B.
are
indicted
for
murder
:
B.
flies
,
and
A.
brings
a
Certiorare
to
remove
the
Indictment
into
the
King●
Bench
;
Whether
the
whole
Record
be
removed
,
or
but
part●
Keeling
the
younger
said
,
that
all
is
removed
,
and
that
the●
cannot
be
a
Transcript
in
this
Case
,
because
he
said
the
Writ
saith
,
Recordum
&
processus
cum
omnibus
ea
tangentibus
:
but
the
Chief
Justice
doubted
of
it
,
and
he
said
that
the
Opinion
of
Markham
in
one
of
our
Books
is
against
it
;
and
he
said
it
should
be
a
mischievous
case
if
it
should
be
so
,
for
so
the
other
might
be
attainted
here
by
Outlawry
who
knew
not
of
it
;
and
note
,
that
Bramston
Chief
Justice
said
,
That
the
Clerk
of
the
Assises
might
bring
in
the
Indictment
propriis
manibus
if
he
would
without
a
Certiorare
.
190.
A
man
was
outlawed
for
Murder
,
and
died
:
his
Administrator
brought
a
Writ
of
Error
to
reverse
the
Outlawry
,
and
it
was
prayed
that
he
might
appear
by
Atturney
,
and
by
Bramston
Chief
Justice
and
Justice
Mallet
(
none
other
being
then
in
Court
)
it
was
granted
that
he
might
,
for
they
said
that
the
reason
wherefore
the
party
himself
was
bound
to
appear
in
proper
person
is
,
that
he
may
stand
rectus
in
Curia
,
and
that
he
may
answer
to
the
matter
in
fact
;
which
reason
fails
in
this
case
,
and
therefore
the
Administrator
may
Appear
by
Attorney
.
191.
One
said
of
Mr.
Hawes
these
words
,
viz.
My
Cozen
Hawes
hath
spoken
against
the
Book
of
Common
Prayer
;
and
said
it
is
not
fit
to
be
read
in
the
Church
:
upon
which
Hawes
brought
an
Action
upon
the
case
,
and
shewed
how
that
he
was
cited
into
the
Ecclesiastical
Court
by
the
Defendant
,
and
had
paid
several
sums
,
&c.
The
Defendant
denied
the
speaking
of
these
words
:
upon
which
they
were
at
issue
,
and
it
was
found
for
the
Plaintiff
;
and
now
it
was
moved
by
Keeling
for
stay
of
Judgment
,
That
the
words
are
not
Actionable
;
as
to
say
,
A
man
hath
spoken
against
a
penal
Law
,
which
doth
not
inflict
punishment
of
life
and
member
,
will
not
bear
Action
;
and
the
punishment
which
is
inflicted
by
the
Statute
of
1
Eliz.
cap.
2.
is
pecuniary
only
and
not
corporal
;
but
in
default
of
payment
of
the
sum
,
that
he
shall
be
imprisoned
for
such
a
time
,
which
meerly
depends
upon
the
non-payment
,
and
is
incertain
:
And
by
the
same
reason
he
said
,
to
say
of
a
man
,
that
he
hath
not
Bowe
and
Arrows
in
his
house
,
or
not
a
Gun
:
or
to
say
of
a
man
,
That
he
hath
spoken
against
any
penal
Law
whatsoever
,
would
bear
Action
,
which
should
be
unreasonable
:
wherefore
he
prayed
that
Judgment
might
be
stayed
.
Brown
contrary
;
the
words
are
actionable
,
because
that
if
it
was
true
that
he
spoke
them
,
he
subjected
himself
to
imprisonment
by
the
Statute
of
1
Eliz.
although
not
directly
,
yet
in
default
of
payment
;
so
as
there
might
be
corporal
damage
:
and
to
prove
it
,
he
cited
Anne
Davies
Case
4
Rep.
17.
a.
where
it
is
said
,
that
to
say
that
a
woman
hath
a
Bastard
will
bear
Action
,
because
that
if
it
were
true
,
she
was
punishable
by
the
Statute
of
18
Eliz.
Further
,
he
said
,
that
if
the
words
are
not
Actionable
,
yet
the
Action
will
lie
for
the
special
damage
,
which
the
Plaintiff
hath
suffered
in
the
Ecclesiastical
Court
.
Justice
Mallet
:
the
words
of
themselves
are
not
Actionable
,
because
that
the
corporal
punishment
given
by
the
Statute
doth
depend
upon
the
non-payment
,
and
is
not
absolute
of
it self
;
but
the
Action
will
lie
for
the
temporal
damage
,
and
therefore
he
conceived
that
the
Plaintiff
ought
to
have
Judgment
.
Justice
Heath
:
that
the
Plaintiff
ought
to
have
Judgment
for
the
pecuniary
Mulct
is
a
good
cause
of
Action
,
there
being
in
default
of
payment
,
a
corporal
punishment
given
.
But
here
is
not
only
injuria
,
but
damnum
also
;
which
are
the
foundations
of
the
Action
upon
the
Case
:
and
if
the
words
of
themselves
be
not
Actionable
,
yet
the
Action
will
lie
for
the
damage
that
the
Plaintiff
here
suffered
by
the
citation
in
the
spiritual
Court
.
Bramston
Chief
Justice
doubted
it
,
and
he
conceived
it
hard
that
the
words
should
bear
Action
,
because
as
he
said
the
corporal
punishment
doth
meerly
depend
upon
the
not
payment
:
and
upon
the
same
reason
,
words
upon
every
penal
Law
should
bear
Action
;
and
therefore
this
being
a
leading
Case
,
he
took
time
to
consider
of
it
.
It
was
said
,
To
say
of
a
man
,
that
he
had
received
a
Romish
Priest
,
was
adjudged
Actionable
,
and
that
was
agreed
,
because
it
is
Felony
.
At
another
day
the
Case
was
moved
again
,
and
Justice
Mallet
was
of
the
same
Opinion
as
before
,
viz.
That
the
words
themselves
were
not
actionable
,
but
for
the
special
damage
that
the
Action
would
lie
;
and
he
said
,
that
one
said
of
another
,
That
he
was
a
Recusant
;
for
which
an
Action
was
brought
in
the
Common
Pleas
,
and
he
conceived
the
Action
would
not
lie
.
Justice
Heath
was
of
the
same
Opinion
as
before
,
that
the
words
o●
themselves
would
bear
Actio●
and
●e
conceived
,
That
if
a
man
speak
such
words
of
another
,
that
if
they
were
true
,
would
make
him
liable
to
a
pecuniary
,
or
corporal
punishment
,
that
they
would
bear
an
Action
,
and
here
the
Plaintiff
was
endamaged
,
and
therefore
without
question
they
will
bear
an
Action
.
Bramston
Chief
Justice
,
as
before
also
;
That
the
words
are
not
Actionable
,
neither
of
themselves
,
nor
for
the
damage
;
not
of
themselves
,
for
no
words
which
subject
a
man
to
a
pecuniary
Mulct
if
they
were
true
,
either
at
the
Common
Law
,
or
by
the
Statute
,
will
bear
an
Action
:
For
by
the
same
reason
,
to
say
that
a
man
hath
erected
a
Cottage
,
or
to
say
that
a
man
hath
committed
a
Riot
,
would
bear
Action
,
37
Eliz.
in
the
Common
Pleas.
One
said
of
another
,
That
he
did
assault
me
,
and
took
away
my
Purse
from
me
▪
and
upon
Not
Guilty
pleaded
,
it
was
found
for
the
Plaintiff
,
and
Judgment
was
stayed
,
because
he
might
take
his
purse
from
him
,
and
yet
be
but
a
Trespasser
:
So
as
it
appeareth
that
words
ought
to
have
a
favourable
construction
,
to
avoid
multiplicity
of
Suits
:
and
if
these
words
would
bear
an
Action
,
by
the
same
reason
words
spoken
against
every
penal
Law
should
bear
Action
,
which
against
the
reason
given
before
should
be
a
means
to
increase
Suits
.
And
he
took
it
for
a
rule
,
If
the
words
import
scandal
of
themselves
,
by
which
damage
may
accrue
,
then
the
words
will
bear
action
without
damage
,
otherwise
not
,
and
therefore
the
damage
here
shall
not
make
the
words
Actionable
which
of
themselves
are
not
actionable
,
as
I
conceive
they
are
not
.
Besides
,
by
this
means
the
Act
of
a
third
person
should
prejudice
me
,
which
is
against
reason
,
as
here
the
Act
of
the
Ordinary
by
the
Citation
and
damage
thereupon
accrued
,
which
perhaps
might
be
ex
officio
only
,
for
which
cause
he
conceived
that
Judgment
should
be
stayed
,
but
because
there
were
two
Judges
against
one
,
Judgment
was
given
for
the
Plaintiff
.
Mich.
17ᵒ
of
the
King
,
in
the
Common
Pleas.
192.
BAine
brought
an
Action
upon
the
Case
against
—
for
these
words
,
viz.
That
he
kept
a
false
Bushel
,
by
which
he
did
cheat
and
cosen
the
poor
;
&
he
said
in
his
Declaration
,
That
he
was
a
Farmor
of
certain
lands
,
and
used
to
sow
those
lands
,
and
to
sell
the
Corn
growing
on
them
,
and
thereby
per
majorem
partem
used
to
maintain
himself
and
his
family
▪
and
that
those
words
were
spoken
to
certain
persons
who
used
to
buy
of
him
,
and
that
by
reason
of
those
words
,
that
he
had
lost
their
custom
;
the
parties
were
at
issue
upon
the
words
,
and
found
for
the
Plaintiff
,
and
it
was
moved
by
Serjeant
Gotbold
in
arrest
of
Judgment
,
that
the
words
were
not
actionable
,
because
that
the
Plaintiff
doth
not
alledge
that
he
kept
the
false
Bushel
,
knowing
the
same
to
be
a
false
Bushel
,
for
if
he
did
not
know
it
to
be
a
false
Bushel
,
he
was
not
punishable
,
and
by
consequence
no
Action
will
lie
;
and
compared
it
to
the
case
,
Where
a
man
keeps
a
Dog
that
useth
to
worry
sheep
,
but
he
doth
not
know
of
it
,
no
Action
lieth
against
him
for
it
:
but
yet
notwithstanding
,
Bankes
chief
Justice
and
Crawley
were
of
Opinion
,
that
the
words
were
Actionable
,
for
of
necessity
it
ought
to
be
taken
that
he
kept
the
Bushel
knowingly
,
for
otherwise
it
is
no
cousenage
;
and
here
being
special
damage
alledged
,
which
was
the
loss
of
his
custom
,
as
he
had
pleaded
it
,
the
maintenance
of
his
livelihood
,
they
hold
the
words
clearly
actionable
,
&
gave
Judgment
accordingly
.
Note
,
the
other
Judges
were
in
Parliament
.
193.
Doctor
Brownlow
brought
an
Action
upon
the
case
for
words
against
〈◊〉
spoken
of
him
as
a
Physitian
,
which
words
were
agreed
to
be
Actionable
,
but
yet
Serjeant
Gotbold
conceived
that
although
that
the
words
were
actionable
,
that
the
Plaintiff
had
not
well
intitled
himself
to
his
Action
,
because
although
that
he
said
that
he
is
in
Medicinis
Doctor
,
yet
because
he
doth
not
shew
that
he
was
licens●d
by
the
Colledge
of
Physitians
in
London
,
or
that
he
was
a
Gr●d●ate
of
the
Universities
according
to
the
Statute
of
14.
H.
8.
cap.
5.
that
therefore
the
action
will
not
lie
,
see
Doctor
B●unchams
case
8
Rep.
113.
●
.
where
he
shewed
the
Statute
a●or●said
,
and
pleaded
it
accordingly
,
that
he
was
a
Graduate
of
the
University
of
Cambridge
,
wherefore
he
prayed
that
Judgment
might
be
stayed
.
Bankes
Chief
Justice
and
Crawley
doubted
whether
the
Act
were
a
general
Act
or
not
;
for
if
it
were
a
particular
Act
,
he
ought
to
have
pleaded
it
;
otherwise
that
they
could
not
take
notice
of
it
;
but
upon
reading
of
the
Statute
in
Court
,
they
agreed
that
it
was
a
general
Act
,
wherefore
they
gave
day
to
the
party
to
maintain
his
Plea
.
194.
By
Bankes
Chief
Justice
:
upon
an
Elegit
there
needs
no
Liberate
,
otherwise
upon
a
Statute
:
and
note
,
the
Elegit
doth
except
Averia
Corucae
.
Dye
and
Olives
Case
.
195.
IN
an
Action
of
false
Imprisonment
,
the
Defendant
shewed
,
that
London
hath
a
Court
of
Record
by
prescription
,
and
that
the
same
was
confirmed
by
Act
of
Parliament
,
and
that
he
was
one
of
the
Serjeants
of
the
Mace
of
that
Court
,
and
that
he
had
a
Warrant
directed
unto
him
out
of
that
Court
to
arrest
the
Plaintiff
pro
quodam
contemptu
committed
to
the
Court
for
not
paying
twenty
shillings
to
K.
B.
and
that
in
pursuance
of
the
command
of
the
Court
,
he
accordingly
did
arrest
the
Plaintiff
.
Maynard
:
that
the
justification
was
not
good
,
because
the
Defendant
doth
not
shew
what
the
contempt
was
,
nor
in
what
Action
,
so
as
it
might
appear
to
the
Court
whether
they
had
Jurisdiction
or
not
:
And
if
such
general
Plea
should
be
tolerated
,
every
Court
would
usurp
Jurisdiction
,
and
every
Officer
would
justifie
,
where
the
proceeding
is
C●ram
non
Iudice
and
void
,
and
thereby
the
O●●icer
liable
to
false
Imprisonment
,
according
to
the
case
of
the
Marshal●ee
in
the
10
Rep.
And
here
the
pleading
is
incertain
,
that
the
Jury
cannot
try
it
:
and
he
put
the
case
of
the
Mayo●
of
Plymouth
.
The
Mayor
hath
Juris●iction
in
D●bt
,
and
Trespass
is
brought
there
,
which
is
Coram
non
Iudice
.
But
in
this
Action
the
par●y
is
imprisoned
pro
quodam
contemptu
,
shall
this
be
a
good
Justification
in
a
false
imprisonment
brought
against
the
Officer
?
certainly
no.
Serjeant
Rolls
contrary
,
that
the
Plea
was
good
,
because
that
the
Defendant
hath
shewed
that
the
Court
was
holden
secundum
consuetudinem
,
and
therefore
it
shall
be
intended
that
the
contempt●
was
committed
in
a
Case
within
their
Jurisdiction
;
and
therefore
he
cited
the
8
Rep.
Turners
Case
,
to
which
Maynard
replied
,
that
that
doth
not
make
it
good
,
because
that
issue
cannot
be
taken
upon
it
.
At
another
day
,
the
Judges
gave
their
Opinions
;
Justice
Mallet
:
That
the
Plea
is
not
good
,
because
that
it
is
too
general
,
and
non
constat
whether
within
their
Jurisdiction
or
not
:
and
where
it
was
objected
that
he
is
a
Minister
of
the
Court
,
and
ought
to
obey
their
commands
,
and
therefore
it
should
go
hard
that
he
should
be
punished
for
it
,
he
conceived
that
there
is
a
difference
betwixt
an
Officer
of
an
inferiour
Court
which
ousts
the
Common
Law
of
Jurisdiction
,
and
one
of
the
four
Courts
at
Westminster
;
for
where
an
Officer
justifies
an
Act
done
by
the
command
of
an
Inferiour
Court
,
he
ought
to
shew
precisely
that
it
was
in
a
Case
within
their
Jurisdiction
;
and
he
cited
20
H.
7.
the
Abbot
of
St.
Alb●rs
case
.
Justice
Heath
contrary
;
the
party
is
servant
to
the
Court
,
and
if
he
have
done
his
duty
,
it
should
be
hard
that
he
should
be
punished
for
it
:
and
he
agreed
that
there
is
a
difference
betwixt
the
Act
of
a
Constable
and
a
Justice
of
Peace
,
and
the
Act
of
a
Servant
of
a
Court
,
for
the
Servant
ought
to
obey
his
Master
;
and
although
it
be
an
inferiour
Court
,
yet
it
is
a
Court
of
Record
,
and
confirmed
by
Act
of
Parliament
and
all
that
is
confessed
by
the
Demurrer
.
Bramston
Chief
Justice
:
that
the
Plea
is
naught
,
because
that
it
is
too
general
and
incertain
;
true
it
is
,
that
it
is
hard
that
the
Officer
should
be
punished
in
this
case
for
his
obedience
to
which
he
is
bound
,
and
it
is
as
true
that
the
Officer
for
doing
of
an
act
by
the
command
of
the
Court
,
whether
it
be
just
or
unjust
,
is
excused
,
if
it
appear
that
the
Court
hath
Jurisdiction
:
but
here
it
doth
not
appear
that
the
Court
hath
Jurisdiction
;
and
if
the
Court
had
not
Jurisdiction
,
then
it
is
clear
that
the
Officer
by
obeying
the
Court
when
they
have
not
Jurisdiction
,
doth
subject
himself
to
an
Action
of
false
imprisonment
,
as
it
is
in
the
Case
of
the
Marshalsy
in
the
10
Rep.
but
it
was
adjorned
,
&c.
The
Bishop
of
Hereford
and
Okeleys
Case
.
196.
THe
Bishop
of
Hereford
brought
a
Writ
of
Error
against
Okeley
,
to
reverse
a
Judgment
given
in
the
Common
Pleas
:
the
point
was
briefly
this
.
One
under
the
age
of
twenty
three
years
is
presented
to
a
Benefice
,
Whether
the
Patron
in
this
case
shall
have
notice
,
or
that
lapse
otherwise
shall
not
incur
to
the
Bishop
,
which
is
grounded
upon
the
Statute
of
13
Eliz.
cap.
12.
And
upon
debate
by
the
Counsel
of
the
Plaintiff
in
the
Writ
of
Error
,
that
which
was
said
being
upon
the
general
Law
of
notice
,
nothing
moved
the
Court
against
the
Judgment
given
in
the
Common
Pleas
upon
solemn
debate
,
as
it
was
said
,
and
therefore
they
gave
day
to
shew
better
matter
,
or
else
that
Judgment
should
be
affirmed
.
The
Reasons
of
the
Judgment
in
the
Common
Pleas
were
two
.
First
,
upon
the
Proviso
of
the
Statute
,
which
says
,
That
no
Lapse
shall
incur
upon
any
deprivation
ips●
facto
without
notice
.
Second
reason
was
upon
the
body
of
the
Act
;
which
is
,
That
admission
,
institution
,
and
induction
shall
be
void
,
but
speaks
nothing
of
presentation
;
so
as
the
presentation
remaining
in
force
,
the
Patron
ought
to
have
notice
,
and
that
was
said
was
the
principal
reason
upon
which
the
Judgment
was
given
:
and
upon
the
same
reasons
the
Court
here
,
viz.
Mallet
,
Heath
,
and
Bramston
▪
Justices
,
held
clearly
that
the
notice
ought
to
be
given
,
or
otherwise
that
Lapse
shall
not
incur
:
but
they
agreed
that
if
the
Act
had
avoided
the
presentation
also
,
that
in
such
case
the
Patron
ought
to
have
taken
notice
at
his
peril
,
being
an
avoydance
by
Statute
,
if
the
Proviso
help
it
not
.
Mich.
17ᵒ
of
the
King
,
in
the
Common
Pleas.
197.
A.
Said
of
B.
that
he
kept
false
weights
;
for
which
words
B.
brought
an
Action
upon
the
case
,
&
shewed
how
that
he
got
his
living
by
buying
and
selling
,
but
did
not
shew
of
what
profession
he
was
;
and
by
all
the
Court
,
viz.
Foster
,
Reeve
,
Crawley
,
and
Bankes
in
the
Common
Pleas
,
the
Action
will
not
lie
.
First
,
because
he
doth
not
shew
of
what
Trade
or
profession
he
was
;
and
it
is
too
general
to
say
that
he
got
his
living
by
buying
and
selling
.
Secondly
,
because
although
that
he
had
shewed
of
what
Trade
he
was
,
as
that
he
was
a
Mercer
,
as
in
truth
he
was
,
that
yet
the
words
are
not
actionable
,
because
there
is
nothing
shewed
to
be
done
with
them
,
or
that
he
used
them
:
and
it
can
be
no
scandal
,
if
the
words
do
not
import
an
act
done
by
the
false
weights
,
for
he
may
keep
them
and
yet
not
use
them
;
and
he
may
keep
them
that
another
do
not
use
them
;
and
the
keeping
of
false
weights
is
presentable
in
Leet
,
if
the
party
use
them
,
otherwise
not
.
And
where
one
said
of
another
,
That
he
kept
a
false
Bushel
,
by
which
he
did
cheat
and
cousen
the
poor
;
the
same
was
adjudged
actionable
,
that
is
,
True
;
and
differs
from
this
case
,
for
there
he
said
,
he
not
only
kept
them
,
but
used
them
,
and
cheated
with
them
;
but
it
is
otherwise
in
our
case
:
and
this
case
was
compared
to
Hobarts
Reports
,
where
one
said
of
another
,
That
he
kept
men
which
did
rob
upon
the
High-way
:
and
adjudged
that
the
words
were
not
actionable
,
for
he
might
keep
them
and
not
know
of
it
.
Bankes
:
the
action
upon
the
case
for
words
is
to
recover
damages
:
and
here
it
can
be
no
damage
.
First
,
because
he
doth
not
shew
of
what
profession
he
was
:
and
Secondly
,
because
although
he
had
shewed
it
,
yet
the
words
will
not
bear
Action
:
and
Judgment
was
given
against
the
Plaintiff
.
198.
It
was
moved
by
Serjeant
Wild
,
That
depositions
taken
in
the
Ecclesiastical
Court
might
be
given
in
evidence
in
a
Trial
in
this
Court
;
and
the
Court
was
against
it
,
because
they
were
not
taken
in
a
Court
of
Record
;
and
they
said
,
although
the
parties
were
dead
,
yet
they
ought
not
to
be
allowed
;
and
by
Bankes
Chief
Justice
,
no
depositions
ought
to
be
allowed
which
are
not
taken
in
a
Court
of
Record
.
and
Foster
and
Reeve
were
of
Opinion
,
that
although
the
parties
would
assent
to
it
,
yet
they
ought
not
to
be
given
in
evidence
against
the
constant
rule
in
such
case
.
Crawley
contrary
,
for
he
said
,
that
a
writing
which
by
the
Law
is
not
Evidence
,
might
be
admitted
as
Evidence
by
the
consent
of
the
parties
.
200.
A
man
was
bound
to
keep
a
Parish
harmless
from
a
Bastard-child
,
and
for
not
performance
thereof
,
the
Obligee
brought
Debt
upon
the
Bond
:
the
Defendant
pleaded
that
he
had
saved
the
Parish
harmless
,
and
did
not
shew
how
the
Plaintiff
replied
,
and
shewed
how
that
the
Parish
was
warned
before
the
Justices
of
Peace
at
the
Sessions
of
Peace
,
and
was
there
ordered
by
Record
to
pay
so
much
for
the
keeping
of
the
childe
;
and
because
the
Defendant
had
not
saved
him
harmless
,
&c.
The
Defendant
pleaded
,
Nul
tiel
Record
,
upon
which
the
Plaintiff
did
demur
.
And
here
two
things
were
resolved
:
First
,
that
the
Plea
Nul
tiel
Record
upon
an
Order
at
Sessions
of
Peace
is
a
good
Plea
,
because
that
an
Order
at
the
Sessions
of
Peace
is
a
Record
.
Secondly
,
that
notwithstanding
Judgment
ought
to
be
given
for
the
Plaintiff
,
because
the
D●fendants
bar
was
not
good
,
in
that
he
hath
pleaded
in
the
affirmative
that
he
hath
saved
the
Parish
harmless
,
and
doth
not
shew
how
as
he
ought
to
have
done
:
but
he
ought
to
have
pleaded
non
damnificatus
,
and
that
had
been
good
without
any
further
shewing
,
which
he
hath
not
done
,
and
therefore
the
Plea
was
not
good
;
and
it
was
agreed
that
the
same
was
not
helped
by
the
Demurrer
,
because
the
same
was
matter
of
substance
,
but
the
Plaintiff
might
take
advantage
of
it
notwithstanding
,
and
therefore
Judgment
was
given
for
the
Plaintiff
.
201.
In
Debt
Judgment
was
given
against
the
principal
,
whereupon
a
Scire
facias
issued
forth
against
the
Bail
,
and
Judgment
upon
Nihil
dicit
was
given
against
them
:
whereupon
a
Writ
of
Error
was
brought
,
and
Error
assigned
,
that
there
was
no
warrant
of
Attorny
filed
for
the
Plaintiff
;
and
upon
debate
whether
the
warrant
of
Attorny
ought
to
be
filed
or
on
,
the
Court
seemed
to
incline
their
opinion
upon
these
differences
,
but
gave
not
any
Judgment
.
First
,
where
it
may
appear
to
the
Court
,
that
there
was
a
warrant
of
Attorny
,
and
where
not
.
If
there
was
not
any
warrant
of
Attorny
,
there
they
cannot
order
the
making
of
one
;
but
if
there
was
one
,
they
conceived
that
they
might
order
the
filing
of
it
.
Second
difference
,
Where
the
warrant
wanting
,
were
of
the
part
of
the
Defendant
,
and
where
of
the
part
of
the
Plaintiff
,
in
the
Writ
of
Error
:
if
it
be
of
the
part
of
the
Plaintiff
,
such
a
warrant
of
Attorney
shall
not
be
filed
,
because
he
shall
not
take
advantage
of
his
own
wrong
:
the
last
thing
was
,
where
the
Record
by
the
lachess
of
the
Plaintiff
in
the
Writ
of
Error
is
not
certified
in
due
time
,
there
the
warrant
of
Attorny
shall
be
filed
:
And
the
Books
cited
to
warrant
these
differences
were
,
2
H.
8.
28.
7
H.
4.
16.
2
Eliz.
Dyer
180.
5
Eliz
Dyer
225.
1
&
2
Phil.
&
Mar.
Dyer
105.
15
Eliz.
Dyer
330.
20
Eliz.
Dyer
363.
and
6.
El.
Dyer
230.
Note
,
that
it
was
said
by
Crawley
,
That
it
is
all
one
whe●e
there
is
no
warrant
of
Attorney
,
and
where
there
is
;
and
he
said
,
there
are
many
Presidents
accordingly
,
and
that
the
same
is
holpen
by
the
Statute
of
8
H.
6.
cap.
1
,
2.
But
Bankes
Chief
Justice
contrary
,
That
it
is
not
helped
by
the
Statute
of
H.
6.
and
so
it
is
resolved
in
the
8
Rep.
162.
And
he
caused
the
Pro●onotharies
so
search
Presidents
,
but
yet
he
said
they
should
not
sway
him
against
the
printed
Law
,
because
they
might
pass
sub
silentio
.
And
the
Chief
Justice
observed
also
,
that
the
same
is
not
holpen
by
the
Statute
of
18
Eliz.
for
that
helps
the
want
of
warrant
of
Attorny
after
Verdict
only
,
and
not
upon
Nihil
dicit
,
as
this
case
is
,
or
upon
wager
of
Law
,
or
upon
confession
,
or
non
sum
informatus
:
And
the
Court
said
,
That
it
shall
be
a
mischievous
case
,
that
Attornies
should
be
suffered
to
file
their
warrants
of
Attorny
when
they
pleased
;
and
therefore
they
gave
warning
,
that
none
should
be
filed
after
the
Term
,
and
willed
that
the
Statute
of
18
Eliz.
cap.
16.
should
be
put
in
execution
.
Mich.
17ᵒ
Car.
in
the
Kings
Bench.
202.
ACertiorare
was
directed
to
the
Commissioners
of
Sewers
,
who
according
to
the
Writ
made
a
Certificate
,
to
which
Certificate
divers
exceptions
were
taken
by
Saint-Iohn
the
Kings
Sollicitor
.
First
,
that
it
appeareth
not
by
the
Certificate
,
that
the
Commission
was
under
the
Great
Seal
of
England
,
as
it
ought
to
be
by
the
Statute
of
23
H.
8.
cap.
5.
Secondly
,
the
Certificate
doth
not
express
the
names
of
the
Jurors
,
nor
shew
that
there
were
twelve
sworn
,
who
made
the
pr●sentment
,
as
by
the
Law
it
ought
to
be
,
but
only
quod
praesentatum
fuit
per
Iurator
'
;
so
that
there
might
be
but
two
or
three
.
Thirdly
,
it
appears
by
the
Certificate
,
that
it
was
presented
by
the
Jury
,
That
the
Plaintiff
ought
to
repair
such
a
Wall
,
but
it
is
not
shewed
for
what
cause
;
either
by
reason
of
his
Land
,
prescription
or
otherwise
.
Fourthly
,
they
present
that
there
wants
reparation
,
but
doth
not
shew
that
it
lies
within
the
Level
and
Commission
.
Fifthly
,
there
was
an
Assesment
without
a
presentment
,
contrary
to
the
Statute
,
for
it
is
presented
that
such
a
Wall
wanted
reparation
,
and
the
Commissioners
assessed
the
Plaintiff
for
reparation
of
that
Wall
and
another
,
for
which
there
was
no
presentment
.
Sixthly
,
the
Tax
was
laid
upon
the
person
,
whereas
by
the
Statute
it
ought
to
be
laid
upon
the
La●d
Seventhly
,
there
was
no
not●ce
given
to
the
Plaintiff
,
which
as
he
conceived
ought
to
have
been
,
by
reason
of
the
great
penalty
which
fol●ows
for
non-payment
of
the
Assesment
:
for
by
the
Statute
the
Land
ought
to
be
sold
for
want
of
payment
.
These
were
the
Principal
exceptions
taken
by
the
Sollicitor
.
Lane
th●
Princes
Attorney
took
other
exceptions
.
First
,
because
they
assess
the
Plaintiff
upon
information
;
for
they
said
that
they
w●re
credibly
informed
,
that
such
a
Wall
wanted
reparation
,
and
that
the
Plaintiff
ought
for
to
repair
it
;
whereas
they
ought
to
have
done
it
upon
presentment
,
and
not
upon
information
,
or
their
private
knowledge
.
Secondly
,
that
they
assessed
the
Plaintiff
,
and
for
not
payment
sold
the
distress
,
which
by
the
Law
they
ought
not
to
do
,
for
that
enables
them
only
to
distrein
;
and
it
was
intended
by
the
Statute
,
that
a
Replevin
might
be
brought
in
the
Case
for
it
gives
Avow●y
or
Justification
of
a
distress
taken
by
reason
of
the
Commission
of
Sewers
,
and
there
ought
to
be
a
Replevin
,
otherwise
no
avowty
;
and
if
Sale
of
the
distress
should
be
suffered
,
then
that
priviledge
given
by
the
Parliament
should
be
taken
away
,
which
is
not
reasonable
:
Keeling
of
the
same
side
,
and
he
said
,
that
it
was
adjudged
,
Pasch.
14
Car
in
this
Court
in
Hungers
case
,
That
the
certificate
of
the
Commissioners
was
insufficient
,
because
that
it
was
not
shewed
that
the
Commission
was
under
the
Great
S●al
of
England
,
as
by
the
Statute
it
ought
to
be
:
and
the
Judges
then
in
Court
,
viz.
Mallet
,
Heath
and
Bramston
,
strongly
inclined
to
many
of
the
exceptions
,
but
chiefly
to
that
,
that
there
wanted
virtute
Literarum
Paten
.
But
day
was
given
to
hear
Counsel
of
the
other
side
.
203.
A
man
acknowledgeth
a
Statute
,
and
afterwards
grants
a
Rent-charge
,
the
Statute
is
afterwards
satisfied
,
Whether
the
grantee
of
the
rent
may
distrein
without
suing
a
Scire
facias
was
the
Question
,
which
was
twice
or
thrice
debated
at
the
Bar
;
but
because
it
was
before
that
Mallet
the
puisne
Judge
was
Judge
,
the
Court
gave
order
that
it
should
be
argued
again
.
Thornedike
against
Turpington
in
the
Common
Pleas.
204.
IN
Debt
upon
a
Bond
,
the
Defendant
demanded
Oyer
of
the
Condition
,
and
had
it
,
which
was
,
that
the
Defendant
should
pay
so
much
in
a
house
of
the
Plaintiffs
at
Lincoln
.
The
Defendant
pleaded
payment
at
Lincoln
aforesaid
,
upon
which
they
were
at
issue
,
and
the
Venire
facias
was
De
Vicines
civitatis
Lincoln
,
and
found
for
the
Plaintiff
.
And
now
it
was
moved
in
arrest
of
Judgment
,
that
it
was
a
mis-trial
;
because
the
Venire
facias
ought
to
have
been
of
the
body
of
the
County
,
and
not
of
the
City
,
which
was
also
a
County
of
it self
:
but
it
was
resolved
by
the
Judges
,
viz.
Foster
,
Reeve
,
and
Bankes
chief
Justice
,
(
Justice
Crawley
only
against
it
)
that
the
trial
was
good
:
and
this
resolution
was
grounded
upon
the
Book
of
34
H.
6.
49
&
50.
pl.
17.
there
being
no
authority
in
the
Law
(
as
was
agreed
)
in
point
to
this
case
,
but
the
Case
aforesaid
.
And
it
was
taken
for
a
rule
,
that
where
it
doth
not
appear
upon
the
Record
,
that
there
is
a
more
proper
place
for
trial
,
than
where
the
trial
was
,
that
there
the
trial
is
good
:
but
here
is
not
a
more
proper
place
.
Further
,
the
chief
Justice
said
,
that
it
was
not
possible
to
be
tried
in
the
body
of
the
County
,
because
that
the
payment
was
to
be
in
the
City
;
and
he
said
,
it
is
true
,
that
if
a
man
speak
generally
of
the
County
of
Lincoln
;
it
shall
be
intended
of
the
body
of
the
County
,
and
not
the
City
,
because
that
the
City
is
but
derivative
out
of
the
County
:
and
further
he
said
,
that
the
Judges
are
bound
to
take
notice
of
a
County
,
not
of
a
particular
liberty
:
Yet
it
was
resolved
here
,
because
the
trial
was
in
the
most
proper
place
,
and
could
not
be
otherwise
,
that
the
Venire
facias
was
well
awarded
,
and
the
trial
good
.
See
the
Book
of
34.
H.
6.
Bayly
against
Garford
.
205.
BAyly
brought
an
Action
of
Debt
upon
a
Bond
against
Garford
executor
of
another
:
the
Defendant
pleaded
Non
est
factum
of
the
Testator
,
upon
which
a
special
Verdict
was
given
,
viz.
That
the
Testator
was
bound
in
that
Bond
with
two
others
joyntly
and
severally
;
and
that
afterwards
the
Seals
of
the
two
others
were
eaten
with
mice
and
r●ts
;
and
whether
now
that
were
the
Bond
of
the
Testator
or
not
was
the
Question
:
which
the
Jury
referred
to
the
Court
,
and
it
was
now
argued
by
Serjeant
Whitfield
for
the
Plaintiff
,
that
the
Obligation
stood
good
against
the
Defendant
,
notwithstanding
the
eating
of
the
Seals
of
the
two
others
:
and
his
reason
was
,
Because
that
where
three
are
bound
joyntly
and
severally
,
that
is
all
one
as
if
they
had
been
several
Obligations
:
for
as
when
three
are
bound
joyntly
and
severally
there
may
be
one
Precipe
,
one
Declaration
,
and
one
Ex●cution
against
them
all
together
;
so
when
three
are
bounden
joyntly
and
severally
,
there
may
be
several
Precipes
,
several
Declarations
,
and
several
Executions
against
them
,
so
it
is
as
it
were
several
and
distinct
Obligations
,
and
therefore
the
avoiding
of
part
,
is
not
the
avoiding
of
the
whole
.
Further
,
he
put
cases
where
a
Deed
which
is
intire
may
be
void
in
part
,
and
good
for
the
residue
,
14
H.
8.
25
&
26.
9.
H.
6.
15.
and
Piggots
Case
,
11
Rep.
27.
Where
it
is
resolved
that
if
some
of
the
Covenants
of
an
Indenture
,
or
conditions
of
a
Bond
are
against
the
Law
,
and
some
good
and
lawful
,
that
in
that
case
the
covenants
and
conditions
which
are
against
the
Law
,
are
void
ab
initio
,
and
the
others
shall
stand
good
:
and
he
cited
the
5
Rep.
23.
Matthewsons
Case
,
as
a
strong
case
to
this
purpose
.
But
the
Court
said
,
that
that
case
of
the
5
Rep.
differed
from
this
case
:
for
there
certain
persons
covenant
separatim
,
and
there
the
breaking
of
the
Seal
of
one
of
the
parties
from
the
deed
shall
not
avoid
the
whole
deed
,
for
it
is
as
several
deeds
;
but
here
they
are
bound
joyntly
and
severally
,
which
alter●th
the
case
.
Besides
,
he
said
the
Book
in
3
H.
7.
5.
made
not
against
it
,
for
there
it
shall
be
taken
that
they
were
bound
joyntly
and
not
severally
as
in
this
case
;
and
he
cited
a
Rep●rt
in
the
point
,
which
was
Trinit.
2.
Iae.
in
this
Court
betwixt
Banning
and
Symmonds
,
where
the
Case
was
,
That
twenty
●●ght
Merchants
were
bound
joyntly
and
severally
(
as●●ur
case
is
)
and
three
of
their
seals
were
broken
from
the
de●d
,
but
notwithstanding
it
was
resolved
that
the
deed
did
〈◊〉
good
against
the
others
(
note
,
that
the
Court
doubted
of
that
Report
,
and
therefore
ordered
that
the
Roll
should
be
searched
)
and
the
Objecti●●
here
,
that
it
is
joynt
,
is
worth
nothing
,
because
it
is
several
also
;
and
he
said
,
that
i●
two
levy
a
Fine
,
one
within
age
,
and
the
other
of
full
age
,
he
said
it
is
good
in
part
,
and
voidable
in
part
;
and
if
a
Fine
,
which
is
a
matter
of
Record
,
may
be
good
in
part
and
voidable
in
part
,
àfor●iori
he
conceived
a
matter
in
fait
,
as
a
Bond
:
and
〈…〉
of
the
Fine
he
said
was
Englishes
case
adjudged
:
and
he
would
have
taken
a
difference
betwixt
Rasing
,
Inter●●●tion
and
Addition
,
as
is
in
Piggots
Case
,
that
the
same
shall
avoid
the
whole
deed
.
But
that
the
breaking
of
the
Seal
of
one
should
not
avoid
it
but
for
part
.
But
the
Court
said
,
That
it
was
clearly
all
one
,
wherefore
he
prayed
Judgment
for
the
〈◊〉
Serjeant
Pheasant
contrary
,
That
the
whole
deed
is
avoid●d
,
and
non
est
factum
of
the
Defendant
,
it
is
not
the
same
B●●d
in
nature
and
effect
as
it
was
before
,
and
as
5
Rep.
119
W●elpdales
Case
,
is
if
the
deed
were
altered
by
inter●●●ation
,
●odition
,
rasure
and
breaking
of
the
Seal
,
there
the
D●●●nd●nt
may
plead
non
est
factum
,
because
it
is
not
the
same
deed
:
so
in
this
case
it
is
not
the
same
deed
,
for
whereas
it
was
joynt
at
the
first
,
now
if
the
deed
should
stand
good
against
the
Defendant
only
,
it
should
be
his
Bond
only
,
where
it
was
his
Bond
,
and
the
Bond
of
another
at
the
first
,
and
so
not
the
same
Bond
;
and
3
H.
7.
5.
ought
to
be
taken
of
a
Bond
joynt
and
several
,
because
that
most
Bonds
are
so
,
and
then
it
is
clear
our
very
Case
,
and
there
it
is
resolved
,
That
if
two
be
bounden
in
a
Bond
,
and
the
Seal
of
one
is
dissolved
and
taken
from
the
Bond
,
that
it
avoids
the
whole
deed
,
and
it
is
not
an
Obligation
joynt
and
several
,
but
joynt
or
several
at
the
Election
of
the
Obligee
,
for
he
cannot
use
both
;
and
when
he
hath
by
his
own
Act
deprived
himself
of
this
Election
(
as
in
our
Case
)
which
goes
in
prejudice
of
the
Obligor
,
who
is
the
Defendant
,
the
whole
Bond
is
thereby
gone
,
for
by
that
means
the
Defendant
only
shall
be
charged
,
where
both
were
;
and
therefore
he
conceived
that
if
I
grant
unto
a
man
an
Annuity
,
or
a
robe
,
if
the
grantee
release
one
of
them
,
both
are
gone
,
because
he
hath
deprived
himself
of
Election
:
so
in
this
case
:
he
by
his
default
should
prejudice
the
defendant
here
,
which
ought
not
to
be
,
&
he
compared
this
case
to
Laughters
case
,
C.
5.
Rep.
21.
Besides
,
if
the
whole
deed
should
not
thereby
be
avoided
,
it
should
be
a
great
prejudice
to
the
Defendant
,
in
as
much
as
if
all
happen
to
be
in
execution
for
the
debt
due
upon
that
Bond
,
as
by
the
Law
they
may
,
and
the
one
escape
,
the
same
should
give
advantage
to
the
others
to
have
Audita
querela
,
and
by
that
to
discharge
themselves
,
which
the
Defendant
here
should
lose
,
if
the
Obligation
should
stand
in
force
as
to
him
only
,
8
Rep.
136.
Sir
Iohn
Needhams
case
,
If
a
woman
Obligee
taketh
one
of
the
Obligors
to
be
her
Husband
,
the
same
is
a
discharge
to
the
other
.
Two
commit
a
trespass
,
the
discharge
of
one
is
the
discharge
of
both
,
yet
it
is
there
joynt
or
several
at
the
will
of
the
party
who
releaseth
.
But
it
may
be
objected
,
that
it
is
a
Casual
act
here
,
and
therefore
shall
not
be
so
prejudicial
to
the
Plaintiff
here
.
To
that
he
answered
,
That
that
shall
not
help
him
,
because
it
is
his
own
lachess
and
default
;
and
the
same
Objection
might
have
been
made
in
Piggots
case
,
where
the
Obligation
is
altered
in
a
material
place
by
a
stranger
without
the
privity
of
the
Obligee
,
and
yet
there
it
was
resolved
that
the
same
shall
avoid
the
deed
.
Besides
,
if
the
Obligee
had
delivered
the
same
over
to
another
to
keep
,
and
it
had
been
eaten
with
Rats
and
Mice
,
yet
that
would
not
excuse
him
,
and
by
the
same
reason
shall
not
help
the
Plaintiff
here
.
Matthewsons
Case
,
C.
5
Rep.
differs
much
from
this
case
,
because
there
the
Covenants
are
several
,
and
not
joynt
as
in
this
Case
,
and
therefore
if
the
Covenan●ee
doth
release
to
one
of
the
covenanters
,
that
shall
not
discharge
the
others
.
For
the
Cases
of
14
H.
8.
and
Piggots
Case
they
differ
much
from
our
Case
,
for
there
the
covenants
or
conditions
against
the
Law
are
void
ab
initio
by
the
construction
of
the
Law
,
and
no
alteration
as
in
our
case
by
the
Act
or
default
of
the
party
by
matter
ex
post
facto
,
and
therefore
those
Covenants
or
Conditions
against
the
Law
cannot
vitia●e
those
which
were
good
and
according
to
Law
,
because
they
took
not
any
effect
at
all
.
So
if
a
Monk
and
another
be
bound
,
the
Bond
is
void
as
to
the
Monk
,
and
good
as
to
the
other
,
because
there
is
no
subsequent
alteration
by
the
party
;
but
the
same
is
void
by
construction
of
law
ab
initio
:
and
upon
the
same
reason
stands
the
Case
of
the
Fine
put
of
the
other
side
.
For
which
causes
he
prayed
Judgment
for
the
Defendant
.
Note
,
the
Court
,
viz.
Foster
,
Reeve
,
Crawley
and
Bankes
Chief
Justice
did
strongly
incline
that
Judgment
ought
to
be
given
for
the
Defendant
;
and
their
reason
was
,
That
if
the
Obligee
by
his
Act
or
own
lachess
discharge
one
of
the
Obligors
,
where
they
are
joyntly
and
severally
bound
,
that
the
same
discharges
them
all
:
but
gave
day
for
the
further
debating
of
the
Case
,
for
that
this
was
the
first
time
it
was
argued
.
207.
By
Justice
Foster
and
Bankes
Chief
Justice
,
a
Trust
is
not
within
the
Statute
of
21
Iac.
cap.
16.
of
Limitations
;
and
therefore
no
lapse
of
time
shall
take
away
remedy
in
Equity
for
it
;
but
for
other
Actions
which
are
within
the
Statute
,
and
the
time
elapsed
by
the
Statute
,
there
is
no
remedy
in
Equity
;
and
that
(
they
said
)
was
always
the
difference
taken
by
my
Lord
Keeper
Coventry
:
but
Justice
Crawley
said
,
that
he
had
conferred
with
the
Lord
Keeper
,
and
that
he
told
him
that
remedy
in
Equity
was
not
taken
away
in
other
Actions
within
this
Statute
.
208.
It
was
said
by
the
whole
Court
,
that
they
never
grant
an
Attachment
without
an
Affidavit
in
writing
.
209.
The
Case
before
of
the
warrant
of
Attorney
,
was
betwixt
Firburne
and
Cruse
,
and
was
entred
Trinit.
17
Car.
And
now
it
was
resolved
upon
reading
of
Presidents
in
Court
,
that
no
warrant
of
Attorney
shall
be
made
or
filed
,
because
that
it
is
an
error
and
not
helped
,
being
after
judgment
in
Nihil
dicit
,
&
that
none
of
the
presidents
came
to
our
case
.
The
greatest
part
of
presidents
were
these
,
viz.
the
first
was
1
Car.
Taylor
against
Thellwell
,
the
same
appeared
to
be
upon
demurrer
,
and
no
Judgment
given
.
Another
was
Mich.
3
Car.
Peasgrove
against
Brooke
,
and
in
that
Case
it
did
not
appear
that
any
Writ
of
Error
was
brought
.
Another
was
,
Paseh
.
5.
Car.
Tayler
against
Sands
.
Another
Hill
.
6.
Car.
Smith
against
Bland
,
in
that
it
was
conceived
to
be
amendment
only
;
and
it
was
agreed
for
Law
,
that
where
there
was
a
warrant
of
Attorney
,
it
might
be
amended
for
any
defect
in
it
,
as
where
there
is
a
misprision
of
the
name
or
the
like
,
as
it
is
resolved
Br.
amendment
85.
and
so
is
1
and
2
Phil.
and
Mar.
Dyer
105.
pl.
6.
expresly
,
where
Alicia
for
Elizabetha
in
the
warrant
of
Attorney
was
amended
;
and
that
after
a
Writ
of
Error
brought
by
construction
of
the
Statute
of
8
H.
6.
and
so
is
9
E.
4.
Br.
amendment
47.
And
Justice
Reeve
said
,
it
cannot
appear
to
us
by
any
of
the
said
Presidents
,
whether
there
was
a
warrant
of
Attorney
or
not
:
and
perhaps
upon
examination
it
might
appear
to
the
Judges
that
there
was
a
warrant
of
Attorny
,
which
is
helped
by
the
Statute
of
8
H.
6.
and
that
might
be
the
reason
which
caused
them
to
order
that
it
should
be
filed
;
but
that
doth
not
appear
to
us
,
and
therefore
the
presidents
were
not
to
the
purpose
.
Besides
,
it
doth
not
appear
by
any
of
them
whether
judgment
were
given
or
not
;
and
before
judgment
it
may
be
amended
,
as
the
Book
is
,
9
E.
4.
14.
br
.
amendment
47.
Besides
,
in
one
of
them
the
Plaintiff
did
neglect
to
remove
the
Record
,
which
is
the
very
case
in
Dyer
,
and
that
was
the
reason
that
the
warrant
of
Attorney
was
filed
,
but
in
this
Case
there
appearing
to
be
no
warrant
of
Attorney
it
is
not
helped
by
the
Statute
of
8
H.
6.
and
after
a
Judgment
,
and
that
upon
Nihil
dicit
,
which
is
not
holpen
by
the
Statute
of
18
Eliz
▪
and
there
is
no
Lachess
in
removing
of
the
Record
by
the
Plaintiff
,
and
for
these
reasons
the
whole
Court
was
against
the
Defendant
in
the
Writ
of
Error
,
that
it
was
Error
,
and
therefore
ought
not
to
be
amended
.
Note
,
that
in
this
Case
it
was
moved
that
the
warrant
of
Attorney
might
be
filed
in
this
Court
,
after
Error
brought
in
the
Kings
Bench
:
but
observe
,
that
if
it
had
been
a
thing
amendable
,
that
had
been
no
impediment
to
it
,
for
things
amendable
before
Error
brought
,
are
amendable
after
,
and
if
the
inferior
Court
do
not
amend
them
,
the
superior
may
,
and
so
it
is
adjudged
8
Rep.
162.
in
Blackm●res
case
.
and
so
is
the
Case
express
in
the
point
,
1
and
2
Phil.
and
Mar.
Dyer
105.
pl.
16.
Where
a
warrant
of
Attorney
was
amended
in
Banco
after
Error
brought
and
the
Record
certified
.
This
is
only
my
own
observation
upon
the
Cale
.
Mich.
17ᵒ
Car.
in
the
Kings
Bench.
210.
AN
information
was
brought
for
the
King
against
Edgerley
Carrier
of
Oxford
,
because
that
where
by
the
custom
of
England
no
Carrier
or
other
person
ought
to
carry
above
two
thousand
weight
,
and
that
with
a
Waggon
having
but
two
wheels
,
and
but
four
horses
,
that
the
Defendant
had
used
for
the
space
of
a
year
last
past
to
drive
Quoddam
g●statorium
,
Anglicè
a
Drag
or
Waggon
,
Cum
quatuor
rotis
&
cum
inusitato
numero
equorum
,
viz.
with
twelve
Horses
betwixt
Oxford
and
London
,
and
he
had
used
to
carry
with
it
five
thousand
weight
,
so
that
he
had
digged
and
spoiled
the
way
in
a
Lane
called
Lobbe-Lanè
,
that
the
people
could
not
pass
.
To
which
the
Defendant
pleaded
Not
Guilty
,
and
was
found
guilty
by
Verdict
;
and
many
exc●ptions
were
taken
to
the
Information
:
all
which
were
over
ruled
by
the
Cour●
,
viz.
Mallet
and
Heath
Justices
,
and
Bramston
Chief
Justice
,
to
be
〈◊〉
:
the
first
was
,
That
he
drave
a
Waggon
Cum
i●usitato
numero
equorum
,
and
doth
not
shew
the
certain
number
of
them
,
and
therefore
the
Information
which
was
in
the
nature
of
a
Declaration
was
not
good
for
the
incertainty
.
But
per
Cu●iam
the
same
was
mistaken
,
for
it
saith
,
that
he
drave
with
eleven
horses
.
The
second
exception
was
,
That
the
usual
weight
which
it
ought
to
carry
is
not
shewed
;
but
that
was
ruled
also
to
be
a
mistake
,
for
it
saith
2000
weight
.
The
third
was
,
that
it
is
not
shewed
in
the
Information
that
the
way
did
lead
to
other
Market-Towns
than
from
Oxford
to
London
;
but
it
was
ruled
to
be
good
notwithstanding
that
exception
,
because
that
the
place
à
quo
,
and
the
place
ad
quem
is
set
down
.
And
it
is
not
material
whether
it
lead
to
other
towns
or
not
.
The
fourth
exception
was
,
That
the
Nusance
is
said
to
be
in
a
place
called
Lobbe-Lane
,
and
it
is
not
shewed
of
what
quantity
or
extent
that
Lane
is
,
viz.
how
many
poles
or
the
like
:
but
it
was
ruled
to
be
good
,
notwithstanding
that
,
First
,
because
that
the
Jury
have
found
that
the
way
was
stopt
that
the
people
could
not
pass
;
and
if
it
was
so
,
then
it
's
not
material
how
long
it
was
.
Secondly
,
Lobbe-Lane
is
said
only
for
the
certainty
of
the
place
,
that
the
Vi●●e
might
come
from
it
:
for
of
necessity
it
will
be
a
Nusance
through
the
whole
way
betwixt
Oxford
and
London
.
And
Lastly
,
the
Nusance
is
laid
to
be
through
all
Lobbe
Lane
,
and
therefore
it
is
good
notwithstanding
that
exceptson
also
.
And
therefore
the
matter
and
form
of
the
Information
being
admitted
good
,
then
the
Question
was
,
what
Judgment
sh●ould
be
given
in
this
Case
;
whether
that
the
Carrier
should
repair
it
at
his
own
costs
,
or
should
be
fined
for
the
Nusance
to
the
Commonwealth
or
not
?
Justice
Mallet
:
there
are
several
Judgments
in
Cases
of
Nusance
;
if
it
be
an
assise
quia
levavit
,
or
quia
exaltavit
,
it
ought
to
be
part
of
the
Judgment
,
that
the
Defendant
demolish
it
at
his
own
costs
:
so
where
a
Nusance
is
to
a
River
,
19
Ass.
pl.
6.
But
our
Case
differs
much
from
the
case
of
the
River
,
for
that
is
a
High-way
which
leadeth
to
a
Port
to
which
all
resort
,
and
therefore
a
stronger
Case
:
but
he
conceived
that
the
Judgment
should
not
be
that
he
should
repair
it
,
because
it
is
said
in
the
Information
,
that
the
Township
ought
,
and
therefore
it
differs
from
those
Cases
:
and
he
doubted
whether
he
should
be
fined
or
no
,
because
that
the
information
is
not
vi
.
&
armis
,
and
not
against
any
Sta●ute
,
for
then
it
should
be
a
contempt
,
and
so
fineable
:
but
notwithstanding
he
agreed
,
that
he
should
be
fined
.
First
,
becaus●
it
is
layed
to
be
Contra
pacem
Domini
Regis
,
&
ad
nocumentum
of
the
Kings
people
,
which
is
a
contempt
,
and
therefore
fineable
.
Secondly
,
because
that
although
it
is
not
laid
to
be
vi
&
armis
,
yet
it
is
laid
to
be
a
rooting
and
spoiling
,
which
implieth
fo●●e
;
11
Ass.
&
19
Ass.
6.
where
a
Nusance
was
with
force
,
there
the
Defendant
was
fined
:
Then
admitting
that
the
Defendant
shall
be
fined
;
the
Question
then
is
,
What
fine
shall
be
set
upon
him
?
and
he
said
,
that
it
shall
be
Secundum
quantitatem
delicti
,
&
salvo
wainagio
suo
,
according
to
the
Statute
of
Magna
Charta
,
cap.
14.
&
West
.
2.
So
that
we
ought
not
to
assess
a
Fine
upon
any
Freeholder
to
take
away
his
contenement
;
no●
upon
any
Villain
to
take
away
his
wainage
;
and
he
said
,
that
he
conceived
that
the
fine
set
upon
him
ought
to
be
the
less
,
for
the
great
prejudice
which
might
come
to
the
Defendant
,
because
that
the
Township
might
have
an
Action
upon
the
Case
against
him
,
because
they
are
bound
to
repair
it
,
and
therefore
he
cited
27
H.
8.
27.
Further
,
he
took
exception
to
it
,
that
it
is
not
shewed
of
what
value
or
estate
the
Defendant
is
,
so
as
we
might
know
what
fine
to
impose
;
for
such
fine
ought
to
be
imposed
Salvo
w●inagio
suo
as
aforesaid
:
and
he
compared
it
to
the
Case
in
4
E
4.
36.
a
Juror
is
demanded
,
and
doth
not
appear
,
he
shall
be
fined
to
the
value
of
his
estate
for
a
year
:
but
that
ought
to
be
enquired
of
by
the
Jury
,
and
not
set
by
the
Court
,
because
they
do
not
know
the
value
of
his
estate
,
so
in
this
Case
:
but
notwithstanding
he
agreed
,
that
he
should
be
fined
,
because
it
appeareth
to
us
how
great
his
fault
was
,
and
the
fine
ought
to
be
as
aforesaid
,
and
therefore
he
set
a
fine
upon
him
of
four
Marks
.
Justice
Heath
:
two
things
are
here
considerable
,
whether
there
shall
be
any
Judgment
as
this
Case
is
;
and
admitting
that
there
shall
,
what
Judgment
shall
be
given
;
and
he
agreed
that
Judgment
should
be
given
,
because
that
the
Information
is
good
,
as
well
for
the
form
as
for
the
matter
of
it
:
it
is
good
for
the
matter
of
it
,
because
Malum
in
se
&
ad
nocumentum
publicum
,
and
therefore
it
is
properly
p●●●shable
in
this
Court
,
&
the
rather
now
,
because
not
punishable
in
another
Court
,
the
Star-Chamber
b●ing
now
taken
away
:
and
it
is
good
for
the
form
of
it
,
for
it
hath
sufficient
certainty
,
as
is
before
shewed
.
Now
for
the
judgm●nt
what
shall
be
given
,
he
agreed
that
he
should
b●
fined
and
imprisoned
;
for
imprisonment
is
incident
to
a
fine
,
but
he
did
not
determine
what
the
fine
should
be
,
he
agreed
the
Rule
that
the
fine
shall
be
secundum
quantitatem
delicti
,
and
that
cannot
be
so
●ittle
as
it
is
made
:
for
although
Lobbe-Lane
be
layed
in
which
the
Nusance
should
be
,
that
is
only
for
necessity
,
that
there
may
be
a
certain
place
for
the
Vis●e
,
but
of
necessity
the
N●●ance
is
through
the
whole
High-way
betwixt
Oxford
a●●
London
.
And
because
we
will
not
offend
as
the
Star-chamber
did
by
assessing
too
high
fines
,
for
which
it
was
justly
condemned
;
so
upon
the
other
side
,
we
ought
not
to
set
so
small
fines
,
that
we
injure
Justice
,
and
be
thereby
an
occasion
to
increase
such
faults
where
we
ought
to
suppress
them
:
and
therefore
he
conceived
the
fine
set
by
Mallet
too
little
;
but
he
agreed
,
that
the
Judgment
should
be
fine
and
imprisonment
;
but
he
adjorned
the
setting
of
the
fine
,
until
he
had
consulted
with
the
Clerks
,
whether
it
should
be
inquired
of
by
Commission
,
or
other
good
information
.
Bramston
Chief
Justice
,
that
the
Information
is
good
for
the
matter
and
the
form
:
but
he
objected
,
that
where
it
is
said
,
that
he
did
drive
quoddam
gestatorium
,
that
gestatorium
is
a
word
incertain
,
and
that
therefore
the
Information
should
be
insufficient
;
but
he
agreed
that
notwithstanding
that
,
that
it
was
good
by
reason
of
the
Auglicè
▪
for
that
reduceth
it
to
certainty
;
and
he
cited
the
Case
betwixt
Sprigge
and
Rawlinson
,
P●seh
.
15
Car.
in
this
Court
;
where
the
Case
was
,
that
a
man
brought
an
Ejectione
firme
de
uno
repositorio
,
which
word
was
put
for
a
Warehouse
,
and
resolved
that
it
was
naught
for
the
incertainty
,
but
the
Chief
Justice
here
said
that
it
had
been
good
if
it
had
been
explained
by
an
Anglicè
,
and
so
he
said
it
was
resolved
in
that
Case
,
and
therefore
he
agreed
that
the
Information
here
was
good
notwithstanding
that
exception
by
reason
of
the
Anglicè
,
this
offence
is
an
offence
against
the
Commonwealth
,
and
such
an
offence
for
which
a
man
may
be
indicted
,
for
it
is
●aid
in
the
Information
to
be
ad
nocumentum
Ligeorum
Domini
Regis
,
wherefore
he
agreed
that
the
Judgment
should
be
a
fine
with
Capiatur
,
and
he
said
,
that
it
cannot
be
part
of
the
Judgment
in
this
Case
,
that
the
Defendant
should
repair
it
,
because
it
is
said
in
the
Information
expresly
,
tha●
the
Parishioners
ought
to
repair
it
:
and
the
Chief
Justice
said
,
(
and
so
Justice
Heath
which
I
before
omitted
)
that
the
Township
cannot
have
their
Actions
,
for
so
there
should
be
multiplicity
of
Actions
,
which
the
Law
will
not
suffer
;
but
he
conceived
that
if
any
man
had
a
special
and
peculiar
damage
,
then
he
might
have
his
Action
,
otherwise
not
:
as
if
a
man
were
bound
by
prescription
or
tenure
to
repair
that
place
called
Lobbe-Lane
,
or
any
part
of
it
,
then
he
might
have
his
action
upon
the
Case
against
the
defendant
,
otherwise
not
:
he
agreed
that
the
fine
should
be
secundum
quantitatem
delicti
▪
but
yet
not
too
high
,
because
the
other
Parishes
may
have
their
Information
in
like
manner
against
the
Defendant
,
but
he
agreed
to
adjorn
the
setting
of
the
fine
.
Southward
against
Millard
.
209.
IN
an
Ejectione
firme
,
the
Defendant
pleaded
Not
Guilty
.
Upon
which
a
special
Verdict
was
found
.
Nicholls
possessed
of
a
Term
for
1000
years
,
devised
the
same
to
E.
his
daughter
for
life
,
the
remainder
to
Iohn
Holloway
;
and
made
Lowe
the
Husband
of
the
Daughter
his
Executor
and
died
:
Iohn
Holloway
devised
his
interest
to
Henry
and
George
Holloway
,
and
made
Oliver
and
others
his
Executors
and
died
;
afterwards
Lowe
spake
these
words
:
If
E.
my
wife
were
dead
,
my
estate
in
the
premisses
were
ended
,
and
then
it
remains
to
the
Holloways
.
E.
died
,
the
Executors
of
Iohn
Holloway
made
the
Lease
to
the
Plaintiff
,
and
Lowe
made
the
Lease
to
the
Defendant
,
who
entred
upon
the
Plaintiff
,
who
brought
Ejectione
firme
;
and
whether
upon
the
whole
matter
the
Defendant
were
guilty
or
not
of
the
trespass
and
ejectment
supposed
,
the
Jury
referred
to
the
Court
:
and
the
points
upon
the
Case
are
two
.
First
,
whether
the
words
spoken
by
Lo●e
the
Executor
be
a
sufficient
assent
to
the
devise
or
not
:
admitting
that
it
is
,
then
the
Second
Point
is
,
Whether
th●
assen●
came
in
due
time
or
not
,
as
to
the
interest
of
Iohn
Holloway
in
the
remainder
,
because
he
died
before
the
words
spoken
which
should
make
the
assent
;
and
as
to
that
,
the
p●int
is
no
other
,
but
that
the
Legatee
dieth
before
assent
to
the
Legacie
,
whether
assent
afterwards
came
too
late
,
or
that
the
Legacie
shall
be
thereby
lost
or
not
,
that
is
the
Question
:
and
by
Justice
Mallet
,
it
is
a
good
assent
,
and
that
in
due
time
,
And
here
some
things
ought
to
be
cleared
in
the
Case
.
First
,
that
the
devise
to
Iohn
Holloway
in
the
Remainder
is
good
by
way
of
executory
devise
.
Secondly
,
that
the
devise
by
Iohn
Holloway
to
Henry
and
George
is
a
void
devise
,
because
but
a
possibility
.
Thirdly
,
that
the
assent
to
the
first
devise
is
an
assent
also
to
him
in
the
remainder
.
And
lastly
,
that
if
an
Executor
enter
generally
,
he
is
in
as
Executor
and
not
as
devisee
:
all
which
are
resolved
in
Lampetts
and
in
Matthew
Mannings
Case
.
Now
these
Cases
being
admitted
,
the
Question
is
,
Whether
that
Lowe
the
Executor
here
hath
made
a
sufficient
Declaration
,
to
take
the
Term
as
Devisee
in
the
right
of
his
wife
,
or
not
:
for
he
hath
his
Election
to
take
it
as
executor
,
or
in
the
right
of
his
wife
;
and
as
I
conceive
he
hath
made
a
good
Election
to
have
it
as
Legatee
in
the
right
of
his
wife
.
The
last
words
,
viz.
That
then
it
remains
to
the
Holloways
,
which
is
impossible
by
Law
to
be
,
because
that
the
devise
to
them
was
void
,
he
did
not
waigh
,
because
but
additional
,
and
the
first
words
of
themselves
are
sufficient
to
make
an
assent
,
it
is
not
a
transferring
of
an
Interest
,
but
an
assent
only
to
it
,
which
was
given
by
the
first
Testator
,
and
after
assent
,
the
devisee
is
in
by
the
first
Testator
,
and
that
being
but
a
perfecting
Act
like
an
Attornment
,
and
admittance
of
a
copy-holder
,
the
Law
always
favours
it
,
for
the
Law
delights
in
perfection
,
and
therefore
an
assent
by
one
Executor
shall
binde
all
,
so
an
assent
by
one
Infant-Executor
above
14
years
shall
binde
the
other
,
so
an
assent
to
the
particular
Tenant
is
good
to
him
in
the
Remainder
;
Admittance
of
a
Copyholder
for
life
,
is
admittance
of
him
in
the
remainder
:
which
Cases
shew
that
an
assent
being
but
a
perfecting
act
,
the
Law
shall
always
make
a
large
construction
of
it
:
and
he
said
,
that
Mannings
case
in
the
8
Rep.
is
the
very
Case
with
our
Case
,
as
it
appeareth
in
the
pleading
of
it
in
the
new
Book
of
Entries
149.
b.
and
also
in
Mannings
Case
aforesaid
,
but
that
Case
was
not
resolved
upon
that
point
,
for
the
devise
there
was
,
paying
so
much
,
and
the
devisee
being
also
executor
payed
the
money
,
and
therefore
it
was
ruled
to
be
a
sufficient
assent
to
the
Legacie
,
and
therefore
our
case
may
be
doubted
notwithstanding
that
case
;
and
for
my
part
I
conceive
it
a
good
assent
to
the
Legacie
in
our
Case
.
And
for
the
second
point
,
I
hold
that
the
assent
comes
in
due
time
to
settle
the
Remainder
,
although
that
Iohn
Holloway
were
dead
before
,
for
otherwise
by
this
common
casualty
of
death
,
which
may
happen
so
suddenly
that
an
assent
cannot
be
had
before
,
or
by
the
wilful
obstinacie
of
the
Executor
,
that
he
will
not
assent
,
Legatees
should
be
defeated
of
their
Legacies
,
which
would
be
a
great
inconvenience
.
Besides
,
I
hold
that
the
devise
by
Iohn
Holloway
was
void
,
he
having
but
a
possibility
at
the
time
of
the
devise
,
and
therefore
that
it
remain
to
his
Executors
,
and
by
consequence
,
that
the
Ejectione
firme
brought
by
their
Lessee
will
lie
.
Justice
Heath
acc
.
for
the
Plaintiff
:
Three
things
are
here
considerable
.
First
,
whether
there
need
any
assent
at
all
of
the
Executor
to
a
Legacie
.
Secondly
,
whether
here
be
an
assent
or
not
.
Thirdly
,
whether
this
assent
come
in
due
time
or
not
.
The
first
hath
been
granted
,
that
there
ought
to
be
assent
,
for
the
great
inconvenience
which
might
happen
to
Executors
if
Legatees
might
be
their
own
carvers
,
and
so
are
all
our
Books
except
2
H.
6.
16.
and
27
H.
6
,
7.
which
seem
to
take
a
difference
;
where
the
Legacie
is
given
in
certain
and
in
specie
,
there
it
may
be
taken
without
assent
,
but
where
it
is
not
given
in
certain
,
there
it
cannot
;
but
he
held
clearly
the
Law
to
be
otherwise
,
that
although
it
be
given
in
certain
,
yet
the
Legatee
cannot
take
it
without
assent
of
the
Executor
;
for
so
the
Executor
should
be
subject
to
a
Devastavit
without
any
fault
in
him
,
or
any
means
to
help
himself
,
which
should
be
very
inconvenient
.
Then
the
second
thing
here
to
be
considered
is
,
Whether
there
be
an
assent
or
not
:
It
is
clear
,
that
if
an
Executor
enter
generally
,
he
shall
be
in
as
Executor
,
and
not
as
Legatee
,
for
that
is
best
for
him
to
prevent
a
Devastavi●
;
and
it
is
as
clear
,
that
if
he
declare
his
intention
to
be
in
as
Legatee
,
that
then
he
shall
be
so
:
then
the
Question
here
is
,
Whether
the
words
in
our
Case
be
a
sufficient
declaration
of
the
mind
of
the
Executor
to
take
the
same
as
Legatee
in
the
right
of
his
wife
or
not
:
and
I
hold
that
it
is
.
He
agrees
that
the
second
words
are
not
so
weighty
as
the
first
;
but
he
held
the
first
words
are
sufficient
of
themselves
to
make
an
assent
:
and
when
he
saith
,
that
then
it
remains
to
the
Holloways
,
that
proves
that
he
took
notice
thereof
as
a
Legacie
,
and
that
he
would
have
it
in
that
right
,
although
in
truth
the
devise
by
Iohn
Holloway
was
void
,
so
as
it
could
not
remain
to
them
.
For
the
third
,
he
held
that
the
assent
came
in
due
time
,
otherwise
it
might
be
very
prejudicial
to
Legatees
,
for
else
by
that
means
they
may
be
many
times
defeated
of
their
Legacies
:
for
put
Case
that
an
Executor
will
not
assent
,
and
the
Legatee
dieth
before
he
can
compel
him
to
assent
,
or
that
the
Legatee
dieth
in
an
instant
after
the
devisor
,
in
the
5
Rep.
Princes
Case
it
is
resolved
that
an
Infant
under
17
may
not
assent
to
a
Legacie
,
nor
the
administrator
Durante
minori
aetate
;
then
put
case
that
the
Legatees
die
during
the
administration
,
durante
minori
aetate
,
in
whose
time
there
cannot
be
an
assent
,
It
would
be
a
v●ry
great
mischief
,
if
that
in
any
of
these
Cases
the
Legatees
should
be
defeated
of
their
Legacies
,
when
by
possibility
they
could
not
use
any
means
to
get
them
:
wherefore
he
held
clearly
that
the
assent
of
the
Executor
after
the
death
of
the
Legatee
came
in
good
time
,
and
therefore
he
concluded
for
the
Plaintiff
.
Bramston
Chief
Justice
also
for
the
Plaintiff
.
For
the
first
point
,
he
held
that
there
is
a
good
assent
;
and
he
said
,
that
Mannings
Case
hath
the
very
words
which
our
Case
hath
,
but
my
Lord
Cooke
did
not
speak
of
these
words
in
the
Report
of
the
Case
,
because
he
conceived
that
the
payment
of
the
money
was
a
sufficient
assent
to
the
Legacie
:
but
further
I
conceive
,
that
it
differs
fully
from
Mannings
Case
,
for
there
it
is
found
expresly
,
that
the
Executor
had
not
Assets
,
and
therefore
it
should
be
hard
to
make
him
assent
by
implication
,
thereby
to
subject
himself
to
a
Devastavit
;
for
as
I
conceive
,
an
Executor
shall
never
be
made
to
assent
by
implication
where
it
is
found
that
he
hath
not
Assets
,
but
there
ought
to
be
an
express
assent
,
by
reason
of
the
great
prejudice
which
might
come
unto
him
,
but
in
our
Case
it
is
not
found
that
Lowe
had
not
Assets
:
an
Infant
cannot
assent
without
Assets
;
but
if
there
be
,
then
it
shall
bind
him
,
and
perhaps
that
was
the
reason
that
my
Lord
Coke
did
not
report
any
thing
of
these
words
,
whether
they
were
an
assent
or
not
;
and
his
passing
over
them
without
saying
any
thing
of
them
,
seems
partly
to
grant
and
agree
,
that
they
did
not
amount
to
an
assent
.
A
man
deviseth
unto
his
Executor
paying
so
much
,
and
he
payeth
it
,
it
is
a
good
assent
to
the
Legacie
;
so
is
Matthew
Mannings
case
8
Rep.
and
Plowden
Comment.
Wel●den
and
Elkingtons
case
:
and
he
said
,
that
an
assent
is
a
perfecting
act
which
the
Law
favours
,
and
therefore
he
said
that
it
was
adjudged
,
that
where
an
Executor
did
contract
with
the
devisee
for
an
assignment
of
the
Term
to
him
devised
,
that
it
was
a
good
assent
to
the
Legacie
.
For
the
second
point
also
he
held
clearly
that
the
assent
came
in
due
time
;
for
otherwise
it
should
be
a
great
inconvenience
,
for
by
that
means
it
should
be
destructive
to
all
Legacies
;
for
of
necessity
there
ought
to
be
an
assent
of
the
Executor
,
and
if
he
will
not
assent
,
and
the
Legatee
dieth
before
he
can
compel
him
to
assent
,
or
if
the
Legatee
dieth
immediately
after
the
Devisor
before
any
assent
to
the
Legacie
,
in
the
first
Case
it
should
be
in
the
power
of
the
Executor
,
who
is
a
stranger
,
to
prejudice
me
;
and
in
the
latter
Case
,
the
Act
of
God
should
prejudice
me
,
which
is
against
two
Rules
of
Law
,
that
the
Act
of
a
stranger
,
or
the
act
of
God
shall
not
prejudice
me
,
wherefore
without
question
the
assent
comes
in
due
time
.
Besides
,
If
a
Legatee
dieth
before
assent
to
a
Legacie
,
the
same
shall
be
assets
in
the
hands
of
his
Executors
;
and
the
Legatee
before
assent
hath
an
interest
demandable
in
the
Spiritual
Court
.
An
Executor
before
probate
shall
not
have
an
Action
,
but
he
may
release
an
Action
,
because
that
the
right
of
the
Action
is
in
him
:
so
in
this
Case
,
although
that
the
Legatee
before
assent
hath
not
an
interest
grantable
,
yet
he
hath
an
Interest
releasable
.
A
man
surrenders
Copyhold-Land
to
the
use
of
another
,
and
the
surrenderee
dieth
before
admittance
,
yet
his
heir
may
be
admitted
;
and
this
Case
is
not
like
those
Cases
put
at
the
Bar
,
where
there
is
but
a
meer
possibility
,
and
not
the
least
Interest
;
as
where
the
grantee
of
a
reversion
dieth
before
Attornment
,
or
the
devisee
before
the
devisor
,
in
those
Cases
the
parties
have
but
a
meer
possibility
,
and
therefore
countermandable
by
death
:
but
it
is
otherwise
in
our
Case
,
as
I
have
shewed
before
,
and
therefore
I
conclude
that
here
is
a
good
assent
,
and
that
in
due
time
,
and
therefore
that
the
Ejectione
firme
brought
by
the
Plaintiff
well
lieth
.
Dale
and
Worthyes
Case
.
212.
DAle
brought
a
Writ
of
Error
against
Worthy
to
reverse
a
Judgment
given
in
the
County-Palatine
of
Chester
;
and
the
Writ
of
Error
bore
Teste
before
the
Plaint
there
entred
,
and
whether
the
Record
were
removed
by
it
or
not
,
was
the
Question
:
and
the
Court
,
viz.
Mallet
,
Heath
and
Bramston
were
clear
of
opinion
,
without
any
solemn
debate
,
that
the
Record
was
not
removed
by
that
Writ
of
Error
,
because
that
if
there
be
not
any
plaint
entred
at
the
Teste
of
the
Writ
,
how
can
the
Processus
according
to
the
Writ
be
removed
,
when
there
is
no
Processus
entred
?
and
that
failing
,
all
fails
;
and
besides
,
it
is
meer
for
delay
of
Justice
:
and
they
agreed
,
that
a
Writ
of
Error
bearing
Teste
before
Judgment
is
good
,
as
is
the
book
of
1
E.
5.
4.
because
that
there
the
foundation
stands
good
,
and
it
is
the
usual
course
of
practise
for
the
preventing
and
superseding
of
Execution
.
Tuder
against
Rowland
.
213.
AN
Ejectione
firme
was
brought
;
and
in
the
Writ
was
vi
&
armis
,
but
it
wanted
in
the
Declaration
,
and
whether
it
were
Error
or
not
,
or
whether
it
were
amendable
or
not
,
was
the
Question
:
and
Shaftoe
for
the
Plaintiff
held
clearly
that
it
was
not
Error
;
but
the
Court
did
not
hear
it
at
that
time
:
the
Case
was
Entred
Pasch.
16
Car.
Rot.
333.
214.
Bolstrood
prayed
a
Prohibition
to
a
Court-Baron
,
as
also
an
Attachment
against
the
Steward
for
dividing
of
Actions
to
bring
the
same
within
their
Jurisdiction
to
defeat
the
Common
Law
,
as
also
for
refusing
to
suffer
the
Defendant
to
put
in
any
other
Attorney
for
him
than
one
of
the
Attorneys
of
that
Court
:
and
the
Court
awarded
a
Prohibition
,
and
the
Steward
Darey
of
Lincolns-Inn
,
then
at
the
Bar
,
the
Court
ruled
that
he
stand
committed
until
he
had
answered
to
interrogatories
concerning
that
misdemeanor
;
and
they
said
,
That
an
Attorney
at
Common
Law
is
an
Attorney
in
every
inferiour
Court
,
and
therefore
ought
not
to
be
refused
.
Rudston
and
Yates
Case
,
entred
Hill
.
15
Car.
Rot.
313.
215.
RVdston
brought
an
Action
of
Debt
upon
a
Bond
against
Yates
;
the
Defendant
demanded
Oyer
of
the
deed
and
condition
thereof
,
and
upon
Oyer
it
appeared
,
that
the
Bond
was
conditioned
to
perform
an
award
:
to
which
the
defendant
pleaded
that
the
Arbitrators
made
no
arbitrament
;
upon
which
they
were
at
issue
,
and
the
Jury
found
this
special
Verdict
,
that
the
Defendant
Yates
and
one
Watson
submitted
themselves
to
Arbitrament
,
and
found
that
the
Arbitrators
made
an
Award
,
and
found
the
Award
in
haec
verba
;
but
further
,
they
found
that
Watson
was
within
age
at
the
time
of
the
submission
:
and
whether
upon
the
whole
matter
the
Arbitrator
had
made
any
award
or
not
,
the
Jury
left
it
unto
the
Court
;
so
as
the
Question
is
no
other
,
but
whether
an
Infant
may
submit
himself
to
an
award
or
not
:
for
it
was
agreed
,
that
if
the
submission
were
void
,
that
the
award
was
void
,
and
by
consequence
the
Bond
void
;
and
note
,
that
the
Case
was
,
that
Yates
bound
himself
that
Watson
who
was
an
Infant
should
perform
the
Award
;
and
the
Condition
recites
,
that
where
Watson
who
was
an
Infant
had
submitted
himself
to
an
award
,
that
the
Defendant
binds
himself
that
he
should
perform
it
,
&c.
So
then
if
the
Submission
be
void
,
all
is
void
;
no
submission
,
no
award
,
and
so
no
breach
of
the
Condition
,
and
therewith
the
Books
agree
,
17
E.
4.
5.
19
E
4.
1.
28
H.
6.
13.
5
Rep.
78.
10
Rep.
131.
b.
And
by
Justice
Mallet
,
the
submission
is
void
,
and
void
in
part
,
void
in
all
,
for
a
submission
is
an
entire
thing
,
and
therefore
cannot
be
void
as
to
the
Infant
,
and
stand
good
as
to
the
man
of
full
age
.
There
are
but
two
Books
express
in
the
point
,
14
H.
4.
12.
&
16
H.
6.
14.
and
none
of
those
are
of
any
authority
;
in
the
first
there
is
no
debate
of
the
Case
.
And
the
second
is
a
flat
quere
:
and
as
I
conceive
the
better
Opinion
is
,
that
the
award
is
void
;
for
where
it
is
there
objected
that
it
may
be
for
the
avail
of
the
Infant
,
Br.
tit
.
Coverture
and
Infancie
62
says
Quere
of
that
,
for
it
may
be
that
the
recompence
given
by
the
award
,
may
be
of
greater
value
than
the
Law
would
give
in
the
Action
,
and
therefore
by
possibility
it
may
be
a
disadvantage
unto
him
;
and
the
Case
betwixt
Knight
and
Stone
,
Hill
.
2.
Car.
in
this
Court
,
Rot.
234.
where
this
very
point
was
in
question
,
it
was
resolved
that
if
the
Infant
had
been
bound
to
perform
the
award
,
that
the
Obligation
had
been
void
.
Further
,
it
was
agreed
,
that
if
it
appear
afterwards
to
be
to
his
prejudice
,
that
that
shall
make
the
award
void
;
but
the
principal
point
was
not
adjudged
,
because
that
the
parties
agreed
.
But
whereas
it
was
then
,
and
now
also
objected
,
That
if
an
Infant
cannot
submit
himself
to
an
Arbitrament
;
that
thereby
he
should
be
in
a
worser
case
than
a
man
of
full
age
,
for
he
may
have
done
a
Trespass
which
subjects
himself
to
damages
by
suit
in
Law
,
which
if
he
cannot
discharge
by
this
way
,
he
should
be
in
a
worse
condition
than
a
m●n
of
full
age
,
for
he
should
lose
that
advantage
.
To
that
he
answered
,
that
if
an
Infant
should
be
permitted
to
that
,
he
might
have
loss
thereby
,
for
he
hath
not
discretion
to
chu●e
a
comp●tent
Arbitrator
,
and
an
Arbitrator
might
give
greater
damages
than
the
cause
did
require
:
and
he
is
worse
than
a
Judge
of
the
Court
is
,
he
is
not
sworn
,
a
Judge
is
:
Besides
,
an
In●ant
hath
divers
priviledges
which
the
Court
would
allow
,
but
an
Arbitrator
not
.
If
an
Infant
make
default
,
the
same
shall
not
bind
him
;
so
if
he
confess
an
Action
,
the
same
shall
not
bind
him
,
and
therefore
he
is
in
better
Case
without
submission
,
than
by
it
:
and
if
an
Infant
cannot
chuse
an
Attorney
,
much
less
a
Judge
,
for
an
Arbitrator
is
a
Judge
:
an
Infant
cannot
bind
himself
Apprentice
,
although
it
may
be
pretended
to
be
for
his
benefit
;
so
21
H.
6.
31.
he
cannot
chuse
a
Bayliff
,
yet
that
is
for
his
benefit
;
he
cannot
give
an
acquittance
if
he
do
not
receive
the
money
,
5
Rep.
Russels
case
,
but
if
it
be
apparent
for
his
benefit
,
it
may
be
good
,
as
a
Lease
of
Ejectment
to
try
a
title
made
by
an
Infant
is
good
,
because
it
is
apparent
for
his
benefit
:
an
Infant
is
in
custodia
Legis
,
and
therefore
we
are
bound
by
Oath
to
defend
him
.
Besides
,
an
Infant
hath
not
power
to
dispose
of
his
goods
himself
,
and
then
how
can
he
give
such
a
power
to
another
?
For
which
reasons
he
conceives
the
submission
void
;
and
if
no
submission
,
no
award
;
and
therefore
he
gave
Judgment
against
the
Plaintiff
,
Quod
nihil
capiat
per
●illam
.
Justice
Heath
also
against
the
Plaintiff
:
True
it
is
,
that
in
this
Case
a
stranger
is
bound
that
the
Infant
shall
perform
the
award
,
but
that
recites
the
submission
by
the
Infant
;
and
the
issue
is
,
whether
they
made
any
award
or
not
,
so
as
the
ground
is
,
whether
there
be
any
submission
or
not
;
for
no
submission
,
no
award
,
that
so
by
consequence
Judgment
ought
to
be
given
against
the
Plaintiff
:
and
he
held
clearly
that
the
submission
is
void
,
that
an
Infant
cannot
submit
himself
to
an
Arbitrament
:
the
Judgment
of
Arbitrators
(
provided
that
they
keep
themselves
within
their
Jurisdiction
)
is
higher
than
any
Judgment
given
in
any
Court
;
for
if
they
erre
,
no
Writ
of
Error
lieth
to
reverse
their
Judgment
,
and
there
is
not
so
much
as
equity
against
them
,
and
therefore
it
should
be
a
hard
case
,
that
an
Infant
should
have
power
to
submit
himself
to
that
which
should
be
final
against
him
,
and
no
remedy
;
for
,
consensus
tollit
errorem
:
wherefore
he
conceived
that
the
submission
was
void
;
and
if
that
which
is
the
ground
fa●ls
,
all
fails
.
An
Infant
may
take
any
thing
,
for
that
is
for
is
advantage
,
and
cannot
prejudice
him
;
and
the
Church
l●ke
an
Infant
is
in
perpetual
Infancie
,
and
conditionem
meliorem
facere
potest
,
but
deteriorem
nequaquam
:
And
where
it
was
objected
in
this
Case
,
that
this
submission
might
be
for
the
avail
of
the
Infant
,
and
therefore
should
be
good
;
he
answered
,
and
took
this
for
a
rule
,
that
an
Infant
shall
never
submit
himself
to
any
thing
under
a
pretence
of
benefit
,
which
by
possibility
may
prejudice
him
;
and
with
that
agreeth
the
better
Opinion
of
10
H.
6.
14.
that
it
shall
not
bind
him
because
it
may
be
to
his
prejudice
,
for
they
may
give
greater
damages
than
peradventure
the
Law
would
give
in
any
Action
brought
against
an
Infant
.
But
14
H.
4.
is
not
any
Authority
.
Where
it
was
objected
,
that
it
shall
be
voidable
at
the
election
of
the
Infant
;
To
that
he
answered
,
that
it
is
absolutely
void
,
and
therefore
there
cannot
be
any
Election
;
and
it
should
be
hard
,
that
the
man
of
full
age
should
be
bound
,
and
the
Infant
not
:
an
Infant
shall
not
be
an
accomptant
,
because
that
Auditors
cannot
be
assigned
to
him
;
and
he
conceived
that
an
Infant
cannot
bind
himself
an
Apprentice
,
but
it
is
usual
in
such
cases
for
some
friend
to
be
bound
for
him
;
and
as
this
Case
is
,
it
appeareth
by
the
Award
that
it
might
be
for
the
prejudice
of
the
Infant
.
For
the
Arbitrators
award
,
that
the
Infant
shall
pay
five
pound
for
quit-Rents
and
other
small
things
;
now
what
these
small
things
were
Non
constat
,
and
they
might
be
such
things
,
for
which
by
the
Law
the
Infant
was
not
chargeable
;
and
by
the
same
reason
that
they
may
assess
five
pound
,
they
might
have
set
twenty
pound
and
more
;
and
it
should
be
inconvenient
that
an
Infant
should
have
such
a
power
to
submit
himself
to
the
Judgment
of
any
which
might
charge
him
in
such
manner
.
Besides
,
part
of
the
Award
is
void
for
the
incertainty
,
for
it
is
said
small
things
;
and
it
doth
not
appear
what
in
certain
;
and
void
in
part
,
void
in
all
;
and
for
these
reasons
he
gave
Judgment
against
the
Plaintiff
.
Bramston
Chief
Justice
agreed
,
that
the
submission
is
void
,
and
not
voidable
only
,
as
it
was
objected
;
for
then
it
should
be
tale
arbitrium
until
reversal
of
it
.
10
H.
6.
and
14
H.
4.
are
no
Authorities
;
or
if
they
be
,
the
best
Opinion
is
for
the
Infant
,
as
it
hath
been
observed
,
and
Knight
and
Stones
Case
cited
before
is
no
authority
,
for
no
Judgment
was
given
in
the
Case
.
But
all
in
that
case
agreed
,
that
the
award
was
void
;
because
it
was
awarded
that
the
Infant
upon
the
payment
of
an
hundred
pounds
should
make
a
release
,
which
proves
that
the
submission
was
also
void
;
because
that
if
it
should
be
good
,
by
the
same
reason
the
release
.
Where
it
was
objected
,
that
it
shall
be
voidable
at
the
Election
of
the
Infant
;
To
that
he
answered
,
that
the
submission
ought
to
be
either
absolutely
good
,
or
absolutely
void
;
for
the
end
of
an
Arbitrament
is
to
conclude
and
compose
controversies
,
and
the
Arbitrators
are
Judges
to
determine
them
;
which
should
never
be
done
,
if
it
should
lie
in
the
power
of
the
Infant
to
make
good
or
frustrate
the
Arbitrament
at
his
Election
;
for
which
cause
,
to
say
that
it
shall
be
conditional
is
against
the
nature
of
an
Arbitrament
;
and
to
say
,
that
it
shall
bind
the
Infant
absolutely
cannot
be
;
and
to
say
,
that
it
shall
bind
the
one
and
not
the
other
is
unequal
:
Besides
,
there
can
be
no
election
in
this
case
;
for
if
he
were
within
age
,
nothing
binds
him
,
if
at
full
age
he
ought
to
perform
it
▪
Besides
,
the
Arbitrament
it self
,
as
this
Case
is
,
and
as
it
was
before
observed
by
Heath
,
is
void
:
for
the
award
was
,
That
the
Infant
should
pay
five
l.
for
quit-Rents
and
other
small
things
,
and
it
doth
not
appear
what
those
small
things
were
;
so
that
for
any
thing
that
appeareth
,
it
might
be
for
such
things
for
which
the
Infant
by
the
Law
was
not
chargeable
,
and
therefore
is
void
for
the
incertainty
;
and
void
in
part
,
void
in
all
;
and
by
the
same
reason
as
the
Arbitrators
might
award
five
pound
,
they
might
award
twenty
pound
or
more
.
But
he
conceived
that
if
it
had
appeared
in
certain
,
that
the
things
had
been
such
,
for
which
the
Infant
is
by
the
Law
chargeable
,
perhaps
it
had
been
good
;
but
here
it
doth
not
appear
what
the
things
were
,
and
therefore
it
was
not
good
.
Trinit.
4
Car.
Pickering
and
Iacobs
case
,
it
was
resolved
that
a
Bond
taken
for
necessaries
of
an
Infant
was
good
,
8
E.
4.
Arbitrators
Award
more
than
the
debt
is
,
the
same
is
naught
;
so
here
,
for
any
thing
that
appeareth
to
the
contrary
,
the
Award
was
to
pay
such
things
as
the
Infant
was
not
liable
to
pay
;
and
therefore
void
.
But
note
Reader
,
I
conceive
that
an
Infant
cannot
submit
himself
to
an
Arbitrament
for
things
for
which
by
the
Law
he
is
chargeable
,
for
the
reason
given
before
,
because
the
Arbitrators
may
charge
him
farther
than
by
the
Law
he
is
liable
;
which
should
be
to
his
prejudice
,
and
he
hath
not
any
remedy
for
it
.
Judgment
was
given
against
the
Plaintiff
,
Quod
nihil
capiat
per
Billam
.
The
Case
was
entred
Hill
.
15
Car.
Rot.
313.
The
Serjeants
Case
,
Trin.
17
o
Car.
in
the
Common
Pleas.
216.
THe
Serjeants
Case
was
this
.
A.
seised
of
Land
in
see
,
B.
his
Brother
levied
a
Fine
come
ceo
to
C.
B.
had
issue
D.
and
died
.
A.
died
without
issue
,
C.
entred
:
D.
entred
and
gave
it
to
C.
and
R.
his
wife
,
and
to
the
heirs
of
their
two
bodies
.
C.
levied
a
Fine
come
ceo
with
proclamations
to
D.
C.
and
R.
have
issue
L.
C.
dieth
:
D.
confirmeth
to
R.
his
estate
,
to
have
to
her
and
the
heirs
of
her
body
by
C.
begotten
.
R.
dies
,
D.
enters
,
L.
oustes
him
,
D.
brings
entre
in
the
Quibus
.
In
this
Case
there
are
two
points
;
First
,
Whether
the
Fine
levied
by
B.
shall
bar
his
Issue
as
this
Case
is
,
or
not
:
and
that
is
the
very
point
of
Edwards
and
Rogers
Case
,
Pasch.
15
Car.
in
the
Kings
Bench
:
and
admitting
it
shall
not
bar
D.
then
the
second
point
is
,
what
is
wrought
by
the
confirmation
,
if
by
that
the
Issue
in
Tail
shall
inherit
or
not
,
and
that
is
the
very
point
in
the
9
Rep.
Beaumonts
Case
.
Saunderson
and
Ruddes
Case
in
Common
Pleas
,
Trin.
17
Car.
217.
SAunderson
brought
an
Action
upon
the
Case
for
words
against
Rudde
;
the
Case
was
this
:
The
Plaintiff
being
a
Lawyer
,
was
in
competition
for
a
Stewardship
of
a
Corporation
;
and
the
Corporation
being
met
together
for
Election
of
a
Steward
,
the
Plaintiff
was
propounded
to
be
Steward
,
and
then
the
Defendant
being
one
of
the
Corporation
,
spake
these
words
of
the
Plaintiff
to
his
Brethren
of
the
Corporation
:
He
(
praedict
the
Plaintiff
innuendo
)
is
an
ignorant
man
,
and
not
fit
for
the
place
:
and
he
said
,
that
by
reason
of
speaking
of
these
words
,
that
they
refused
to
elect
him
Steward
;
and
whether
these
words
were
actionable
or
no
,
was
the
Question
.
This
case
was
argued
twice
in
Trinity-Term
by
Callis
and
Gotbold
Serjeants
,
and
the
Judges
seemed
to
incline
to
opinion
,
That
the
words
were
Actionable
,
but
yet
no
judgment
is
given
.
Selden
against
King
in
Common
Pleas
,
Trin.
17
Car.
Regis
.
218.
IN
a
Replevin
the
Case
was
thus
:
A
man
granted
a
rent
out
of
certain
Lands
,
and
limited
the
same
to
be
paid
at
a
house
,
which
was
another
place
off
the
Land
;
and
in
the
grant
was
this
clause
,
that
if
the
rent
were
behind
,
and
lawfully
demanded
at
the
house
,
that
then
it
should
be
lawful
for
the
grantee
to
distrein
:
the
Rent
was
afterward
behind
,
and
the
grantee
distreined
,
and
upon
traverse
taken
upon
the
demand
,
whether
this
distress
upon
the
Land
(
which
had
been
good
in
Law
if
there
had
not
been
a
special
limitation
of
demand
at
a
place
off
the
Land
)
be
a
good
demand
as
this
Case
is
,
was
the
point
.
Mallet
Serjeant
:
the
distress
is
a
demand
in
it self
,
and
there
needs
not
any
other
demand
,
although
the
rent
be
to
be
paid
off
the
Land
as
here
.
And
it
was
adjudged
in
this
Court
about
3
years
past
,
that
the
distress
was
a
sufficient
demand
:
but
I
confess
that
a
Writ
of
Error
is
brought
in
the
Kings
Bench
,
and
they
incline
there
to
reverse
it
,
and
there
is
no
difference
where
the
rent
is
payable
upon
the
Land
,
where
not
,
and
so
it
was
adjudged
,
Trin.
3
Car.
Rot.
1865
or
2865.
betwixt
Berriman
and
Bowden
in
this
Court
:
and
he
cited
also
Fox
and
Vaughans
Case
,
Pasch.
4
Car.
in
this
Court
,
and
Sir
Iohn
Lambes
case
,
Trin.
18
Car.
Rot.
333.
in
this
Court
,
both
adjudged
in
the
point
;
and
he
cited
many
other
Judgments
.
Iermyn
Serjeant
contrary
,
that
the
distress
is
no
sufficient
demand
as
this
Case
is
:
he
ought
to
demand
it
at
the
place
appointed
by
the
grant
,
for
it
is
part
of
the
grant
,
and
the
words
of
the
grant
ought
to
be
observed
,
28
H.
8.
Dyer
.
15.
and
in
the
Comment.
25.
a.
it
is
said
,
that
Modus
legem
dat
donationi
,
and
therefore
by
the
same
reason
that
the
grantor
may
appoint
the
time
and
place
of
payment
,
as
here
he
hath
done
;
by
the
same
reason
he
may
appoint
a
place
for
the
demand
▪
and
that
he
shall
make
that
demand
before
he
distrein
;
for
the
same
is
neither
repugnant
nor
impossible
,
nor
against
the
Law
,
and
therefore
good
,
and
by
consequence
ought
to
be
observed
:
and
then
he
answered
the
Cases
which
were
cited
to
be
adjudged
against
him
.
In
Symmons
▪
Case
in
the
Kings
Bench
there
it
was
resolved
that
a
distress
was
a
demand
in
Law
,
and
a
demand
in
Law
is
as
strong
as
a
demand
in
fact
,
as
it
was
said
by
Justice
Barckley
in
debate
of
that
Case
.
But
note
,
that
in
that
Case
there
was
no
time
in
certain
limited
:
and
further
,
in
that
Case
the
Rent
was
payable
upon
the
land
,
and
therefore
in
that
Case
I
agree
that
a
distress
will
be
a
good
demand
,
because
that
the
demand
is
to
be
made
upon
the
land
,
but
it
is
not
so
in
our
Case
.
In
Sands
and
Lees
case
,
Trin.
20
Iac.
in
this
Court
,
there
also
the
rent
was
payable
upon
the
land
.
Berriman
and
Bowdens
Case
,
Trin.
3
Car.
cited
before
,
I
agree
was
our
very
Case
in
point
,
but
there
Judgment
was
given
upon
Confession
,
and
therefore
doth
not
rule
our
Case
;
and
in
Sir
Iohn
Lambes
Case
there
was
no
Judgment
given
,
and
therefore
that
doth
not
rule
our
Case
;
but
Melsam
and
Darbies
case
M.
6
Car.
Rot.
389.
in
the
Kings
Bench
a
Case
in
the
point
,
where
Judgment
was
reversed
upon
a
Writ
of
Error
there
brought
for
want
of
demand
,
and
Selden
and
Sherleys
case
in
that
Court
,
a
Case
also
in
the
point
was
reversed
,
Mich.
16
Car.
in
the
Kings
Bench
upon
a
Writ
of
Error
brought
for
want
of
demand
:
wherefore
I
conclude
,
that
there
ought
to
have
been
an
actual
demand
at
the
house
according
to
the
grant
in
our
Case
,
and
therefore
the
Traverse
in
this
Case
taken
by
the
grantor
is
well
taken
.
Note
,
that
Justice
Crawley
said
,
that
Lambes
Case
was
adjudged
that
there
needed
no
demand
,
and
he
said
,
that
there
were
three
Judgments
accordingly
in
this
Court
:
but
Rolls
Serjeant
said
,
that
Darbies
Case
was
reversed
in
the
Kings
Bench
for
want
of
a
demand
.
But
note
,
that
Foster
and
Reeve
Justices
,
did
incline
that
there
should
be
a
demand
,
and
so
Bankes
Chief
Justice
,
for
he
said
,
that
it
is
part
of
the
contract
,
and
like
a
condition
precedent
;
for
as
in
a
condition
precedent
,
a
man
ought
to
perform
the
condition
before
he
can
take
any
thing
by
the
grant
,
so
in
this
Case
the
grantee
ought
to
make
a
demand
to
enable
him
to
distrein
,
for
before
the
demand
he
is
not
by
the
manner
of
the
grant
(
which
ought
to
be
observed
)
entitled
to
a
distress
:
wherefore
he
give
direction
to
the
Counsel
that
they
would
view
the
Records
,
and
shew
them
to
the
Court
;
and
further
he
said
to
them
,
that
where
it
appeareth
,
that
the
Rent
was
demandable
upon
the
land
,
that
those
cases
were
not
to
the
purpose
,
and
therefore
wished
that
they
would
not
trouble
the
Court
with
them
.
Levet
and
Sir
Simon
Fanshawes
Case
in
Common
Pleas
,
Trin.
17.
Car.
Regis
.
249.
LEvett
brought
debt
against
Sir
Simon
Fanshawe
and
his
Wife
as
Executrix
of
another
,
and
sued
them
to
the
Exigent
,
and
at
the
return
of
the
Exigent
,
the
Defendant
Sir
Simon
Fanshawe
came
in
voluntarily
in
Court
,
and
prayed
his
Priviledge
because
he
was
an
Officer
of
the
Exchequer
:
and
whether
he
should
have
his
priviledge
in
that
case
or
not
,
was
the
question
,
and
that
rests
upon
two
things
.
First
,
because
he
is
sued
,
as
this
case
is
,
meerly
for
conformity
and
necessity-sake
,
and
in
the
right
of
another
,
viz.
in
the
right
of
his
wife
as
Executrix
.
And
secondly
,
because
he
demands
his
priviledge
at
the
Exigent
.
Whitfield
Serjeant
,
that
he
ought
to
have
his
priviledge
,
and
he
cited
Presidents
as
he
said
in
the
point
,
as
Pasch.
44
Eliz.
in
the
Exchequer
,
Iames
Ashtons
case
s●rvant
to
the
Treasurer
,
and
Pasch.
23.
Iac.
Rot.
131.
Stantons
case
also
in
the
Exchequer
,
in
both
which
cases
he
said
husband
and
wife
were
sued
in
the
right
of
the
wife
,
and
the
husband
had
his
priviledge
.
But
he
cited
a
Case
which
was
nearer
our
Case
,
and
that
was
Hill
.
8.
Iac.
in
the
Exchequer
,
Wats
and
Glovers
case
,
where
husband
and
wife
were
sued
in
the
right
of
the
wife
as
Executrix
;
and
he
said
,
that
it
was
over-ruled
that
the
husband
should
have
his
priviledge
22
H.
6.
38.
and
27
H.
8.
20.
in
those
Cases
the
husband
and
wife
were
sued
in
the
right
of
the
wife
,
and
yet
the
husband
was
allowed
his
priviledge
:
But
see
Reader
34
H.
6.
29.
&
35
H.
6.
3.
against
it
:
And
note
,
that
many
of
these
cases
come
to
the
second
point
,
whether
he
may
demand
his
priviledge
at
the
Exigent
or
not
;
but
for
that
see
9
E.
4.
35.
Br.
Priviledge
22.
&
10
E.
4.
4.
Br.
Priviledge
40.
Rolls
Serjeant
contrary
,
that
the
Defendant
ought
not
to
have
his
Priviledge
;
and
he
said
,
that
use
,
practise
,
and
reason
is
against
it
;
and
he
took
these
differences
.
First
,
where
the
Defendants
are
coming
to
make
their
appearance
,
and
are
arrested
,
as
in
22.
H.
6.
20.
and
where
they
are
sued
in
one
Court
,
and
the
husband
demands
his
priviledge
,
because
he
is
an
Officer
in
another
Court
,
as
in
our
Case
.
Secondly
,
where
he
is
Defendant
,
and
where
he
is
Plaintiff
.
And
lastly
,
where
he
is
sued
in
his
own
right
,
and
where
in
the
right
of
another
,
as
in
our
Case
.
For
in
the
first
of
these
differences
he
shall
have
his
priviledge
,
in
the
latter
not
;
and
it
is
to
ouste
this
Court
of
Jurisdiction
,
and
therefore
shall
be
taken
strictly
.
Besides
,
if
in
this
Case
the
Defendant
should
have
his
priviledge
,
we
should
be
without
remedy
;
for
we
cannot
have
a
Bill
against
the
wife
,
and
we
have
no
remedy
to
make
the
wife
to
appear
;
and
therefore
it
should
be
a
great
prejudice
to
us
,
if
he
should
have
his
priviledge
.
Wherefore
he
prayed
that
the
Defendant
might
not
have
his
priviledge
.
Note
,
that
Bankes
Chief
Justice
seemed
to
agree
the
differences
put
by
Rolls
,
and
also
he
conceived
that
point
considerable
,
whether
the
Defendant
had
not
surceased
his
time
in
this
Case
,
because
he
demands
his
priviledge
at
the
Exigent
,
and
not
before
.
And
note
,
the
whole
Court
,
viz.
Foller
,
Reeve
,
Crawley
and
Bankes
Chief
Justice
seemed
to
incline
,
that
the
Defendant
should
not
have
his
priviledge
,
because
that
the
Action
was
brought
against
him
and
his
wife
,
in
auter
droit
,
viz.
in
the
right
of
the
wife
as
Executrix
:
but
no
Judgment
was
then
given
.
Hill
.
17ᵒ
Car.
in
the
Common
Pleas.
221.
DVdley
who
was
a
Parson
did
libel
in
the
Arches
against
Crompton
for
scandalous
and
defamatory
words
,
which
words
were
these
:
Thou
,
(
meaning
the
Plaintiff
)
lyest
,
th●u
art
a
fool
,
and
(
putting
his
hand
behind
him
)
bid
him
kiss
there
:
and
further
said
to
him
,
Thou
hast
spent
(
so
much
a
year
)
in
drunkenness
:
and
Sentence
was
given
for
the
Plaintiff
,
and
now
four
years
after
Sentence
the
Defendant
prayed
a
Prohibition
,
and
the
Court
,
viz.
Foster
,
Reeve
,
Crawley
Justices
,
and
Bankes
Chief
Justice
,
were
against
the
Prohibition
because
the
Defendant
came
too
late
;
but
if
he
had
come
in
due
time
,
the
three
Justices
did
incline
that
a
Prohibition
would
have
lien
,
because
that
the
words
are
words
only
of
passion
and
anger
,
and
God
forbid
that
all
words
spoken
only
in
wrangling
and
anger
should
bear
Action
:
But
the
Chief
Justice
inclined
that
the
Defendant
was
punishable
in
the
Ecclesiastical
Court
for
those
words
;
for
he
said
,
that
the
suit
there
is
pro
salute
animae
&
reformatione
morum
,
and
it
was
fit
that
his
manners
should
be
reformed
,
who
spake
such
words
of
a
man
in
Orders
and
a
reverend
Minister
.
And
he
said
,
that
although
that
he
held
not
that
where
there
is
no
remedy
at
Law
,
that
there
they
might
sue
in
the
Ecclesiastical
Court
;
yet
he
said
,
that
in
many
cases
,
where
there
is
no
remedy
at
Law
,
yet
there
is
remedy
in
the
Ecclesiastical
Court
,
and
so
he
conceived
in
this
Case
.
But
that
which
made
Justice
Reeve
to
doubt
whether
a
Prohibition
should
issue
as
this
Case
was
,
or
not
,
was
for
the
incertainty
of
their
Sentence
,
which
was
for
speaking
of
these
words
contained
in
the
Articles
,
aut
eorum
aliqua
,
which
he
said
is
therefore
not
good
,
for
he
said
,
that
Judgments
or
Sentences
ought
to
have
these
two
things
,
Veri●y
and
Certainty
,
and
if
there
want
any
of
these
two
,
it
is
not
good
;
and
if
it
should
be
suffered
it
were
a
mischievous
case
,
for
by
this
●ick
they
might
hold
Plea
of
words
not
within
their
Jurisdiction
,
and
we
should
not
have
power
to
prevent
it
;
for
if
some
of
the
words
should
be
actionable
,
some
not
,
they
might
by
this
way
hold
Plea
as
well
of
words
which
were
not
actionable
or
punishable
by
them
as
of
those
which
were
.
To
which
Foster
agreed
;
but
Justice
Crawley
and
the
Chief
Justice
conceived
that
no
Prohibition
would
lie
notwithstanding
that
,
for
that
might
be
the
course
amongst
them
;
and
although
it
be
incertain
,
yet
it
may
be
allowed
by
them
for
Law
:
and
Reeve
was
of
opinion
,
that
a
man
might
be
indicted
at
the
Assises
before
the
Commissioners
of
Oyer
and
Terminer
for
speaking
of
such
defamatory
words
,
and
that
he
grounded
upon
the
Commission
of
Oyer
and
Terminer
,
which
giveth
them
power
to
hold
Plea
de
prolationibus
verborum
,
and
he
conceived
that
a
man
might
be
fined
for
them
.
But
the
Chief
Justice
contrary
,
for
the
Commission
giveth
them
power
to
hold
Plea
secundum
legem
&
consuetudinem
Angliae
:
Now
if
the
speaking
of
such
words
be
not
punishable
by
the
Law
and
Custome
of
England
,
then
we
cannot
hold
Plea
of
them
by
way
of
indictment
or
otherwise
at
the
Assises
for
them
.
222.
It
was
said
by
the
whole
Court
,
that
a
bare
Information
at
the
Bar
is
not
sufficient
to
cause
the
Court
to
examine
any
man
upon
Interrogatories
;
wherefore
they
ruled
,
that
the
party
should
make
an
Affidavit
.
223.
Judgment
was
given
against
the
principal
,
and
after
a
Scire
facias
was
brought
against
the
Bail
,
who
appeared
and
pleaded
Nul
tiel
Record
of
the
Judgment
given
against
the
principal
,
upon
which
day
was
given
to
bring
in
the
Record
in
Court
,
at
which
day
the
principal
tendred
his
body
in
discharge
of
the
Bail
,
and
now
it
was
prayed
by
Pheasant
Serjeant
,
that
it
might
be
admitted
;
but
Reeve
,
Foster
and
Bankes
Chief
Justice
inclined
against
it
:
True
it
is
,
that
the
condition
of
the
Bail
is
,
that
they
render
his
body
(
indefinitely
)
withoue
limiting
any
time
in
certain
when
they
shall
do
it
,
or
pay
the
condemnation
:
but
yet
they
conceived
,
that
if
they
appear
and
plead
such
a
dilatory
Plea
as
this
is
,
that
thereby
they
have
waived
the
benefit
of
bringing
in
his
body
:
and
Justice
Foster
said
,
that
the
same
being
general
and
uncertain
,
the
Law
ought
to
determine
a
time
certain
when
it
shall
be
done
,
for
otherwise
by
the
same
reason
that
they
may
do
it
now
,
they
may
do
it
twenty
years
after
,
which
should
be
inconvenient
and
against
the
meaning
of
the
condition
.
And
Reeve
said
,
that
if
this
trick
should
be
suffered
,
that
the
Bail
might
plead
such
a
dilatory
Plea
,
and
afterwards
bring
in
the
body
of
the
Principal
,
the
Plaintiff
should
lose
all
his
costs
of
suit
which
he
had
expended
in
the
suit
against
the
Bail
,
which
would
be
mischievous
.
But
Justice
Crawley
,
that
the
usage
hath
always
been
,
that
the
Bail
might
bring
in
the
body
of
the
Principal
at
any
time
before
judgment
given
against
them
upon
the
Scire
facias
,
and
there
are
many
presidents
in
this
Court
to
that
purpose
.
To
that
the
Court
seemed
to
agree
,
if
they
plead
not
such
a
dilatory
Plea
,
as
in
this
case
:
Therefore
the
Court
awarded
,
that
the
Pronotharies
should
consider
of
it
,
and
should
certifie
the
Court
what
the
use
hath
been
in
such
case
.
224.
Serjeant
Pheasant
came
to
the
Bar
,
and
said
to
the
Court
,
that
antiently
(
as
appeareth
by
our
old
Books
)
the
usage
was
,
that
the
Serjeants
in
any
difficult
point
of
pleading
,
did
demand
of
the
Court
their
advise
concerning
it
,
●nd
accordingly
were
used
to
be
directed
by
the
Court
;
wherefore
he
humbly
prayed
of
the
Court
to
be
resolved
of
this
doubt
.
A
man
was
imprisoned
for
not
submitting
to
Patentees
of
a
Monopoly
,
after
seven
or
eight
years
past
,
and
then
he
brought
an
Action
of
false
Imprisonment
,
and
that
is
grounded
upon
the
Statute
of
Monopolies
,
21
Iac.
c.
3.
whether
in
this
case
the
Defendant
might
plead
the
Statute
of
21
Iac.
c.
16.
of
Limitations
of
Actions
,
or
not
,
was
the
Question
.
But
the
whole
Court
was
against
him
,
that
they
cannot
be
Judges
and
Counsellors
,
and
that
they
ought
not
to
advise
any
man
,
for
by
that
means
they
should
prevent
their
Judgment
;
and
they
confessed
that
that
was
the
use
,
when
the
Serjeants
used
to
count
at
the
Bar
,
as
appeareth
in
our
Books
.
But
they
said
,
you
shall
never
find
the
same
to
be
used
since
they
counted
and
declared
before
they
came
to
the
Bar
,
and
these
Counts
and
Declarations
are
upon
Record
,
wherefore
the
Court
upon
these
considerations
would
not
advise
him
.
Dewel
and
Masons
Case
.
225.
THis
Case
of
Dewel
and
Mason
,
which
see
before
,
pl.
184.
came
now
again
in
debate
,
and
it
was
adjudged
by
the
whole
Court
,
viz.
Foster
,
Reeve
,
Crawley
Justices
,
and
Bankes
Chief
Justice
,
nullo
contradicente
,
that
the
Plaintiff
ought
to
have
Judgment
,
and
that
upon
these
differences
.
First
,
where
the
Defendant
is
to
do
a
single
Act
only
,
and
where
he
hath
election
of
two
things
to
do
.
Secondly
,
the
second
difference
stood
upon
this
,
that
no
notice
is
to
be
given
,
or
tender
made
of
a
thing
which
lieth
not
in
the
power
or
proper
conusance
of
the
Plaintiff
,
so
as
the
difference
stands
where
it
is
a
thing
which
lies
in
the
conusance
of
the
Plaintiff
,
and
where
not
:
and
therefore
where
the
award
was
that
the
Defendant
should
pay
to
the
Plaintiff
eight
pound
,
or
three
pound
and
costs
of
suit
,
as
should
appear
by
a
note
under
the
Attorneys
hand
of
the
Plaintiff
,
it
was
resolved
in
that
Case
,
that
although
the
Attorney
be
in
some
respect
as
a
servant
to
his
Master
,
yet
to
this
purpose
he
is
a
meer
stranger
,
and
therefore
the
Plaintiff
was
not
bound
to
make
any
tender
of
that
note
,
but
the
Defendant
ought
to
have
gone
to
the
Plaintiffs
Attorney
,
and
required
a
note
of
him
of
the
costs
of
suit
,
so
as
he
might
have
made
his
Election
:
But
they
all
agreed
,
that
where
it
is
a
thing
which
lieth
in
the
knowledge
of
the
Plaintiff
,
that
there
he
ought
to
have
made
a
tender
,
or
given
notice
,
but
in
this
Case
it
lieth
not
in
the
knowledge
of
the
Plaintiff
,
and
he
cannot
compel
the
Attorney
to
make
it
,
wherefore
it
was
resolved
that
the
Plaintiff
should
have
Judgment
.
226.
A
man
libelled
for
Tithes
in
the
Ecclesiastical
Court
,
&
in
his
libel
he
set
forth
,
how
that
the
Tythes
were
set
forth
,
but
that
the
Defendant
did
stop
and
hinder
the
Plaintiff
to
carry
them
away
any
other
way
than
through
the
Defendants
Yard
,
and
when
he
was
carrying
them
that
way
,
the
Defendant
being
an
Officer
did
attach
them
for
an
Assessment
to
the
poor
,
and
did
convert
them
to
his
own
use
,
upon
which
a
Prohibition
was
prayed
,
because
that
the
Tythes
being
set
forth
an
Action
of
Trespass
lieth
at
the
Common
Law
:
but
Serjeant
Clarke
was
against
the
Prohibition
,
because
that
the
Libel
is
grounded
upon
the
Statute
of
2
E.
6.
cap.
13.
which
is
,
That
if
the
Parson
,
&c.
be
stopt
or
let
in
carrying
his
Tythes
,
that
the
party
so
stopping
or
letting
should
pay
the
double
value
,
to
be
recovered
before
the
Ecclesiastical
Judge
.
But
notwithstanding
that
,
it
was
resolved
that
a
Prohibition
should
issue
,
because
he
that
will
sue
upon
the
Statute
ought
to
mention
the
Statute
,
or
to
make
his
demand
secundum
formam
Statuti
.
But
here
the
Plaintiff
doth
not
sue
upon
the
Statute
,
for
he
doth
not
mention
it
nor
the
double
value
as
he
ought
;
for
they
all
agreed
,
that
he
ought
to
ground
his
Action
upon
the
express
clause
of
the
Statute
for
the
double
value
,
wherefore
a
Prohibition
was
granted
.
227.
It
was
resolved
upon
the
Certificate
of
the
Pronotharies
,
viz.
Gulson
,
Cory
,
and
Farmer
,
that
the
custom
of
the
Court
was
,
That
if
a
man
sueth
another
for
such
a
sum
,
or
thing
for
which
the
Plaintiff
ought
to
have
special
Bail
,
and
doth
not
declare
against
him
in
three
Terms
,
that
the
Defendant
being
brought
to
the
Bar
by
a
Habeas
Corpus
,
ought
to
be
discharged
upon
an
ordinary
appearance
,
and
that
they
said
is
the
course
and
practice
in
the
Kings
Bench
,
and
that
was
now
resolved
to
be
as
a
certain
Rule
from
thenceforth
in
this
Court
by
all
the
Judges
,
viz.
Foster
,
Reeve
,
Crawley
,
and
Bankes
Chief
Justice
.
228.
It
was
said
by
Justice
Reeve
,
that
if
A.
being
seised
of
an
Advowson
,
grant
the
next
presentation
to
B.
and
B.
makes
a
Bond
to
A.
to
pay
him
twenty
pounds
when
the
Church
shall
fall
void
,
that
that
is
Simony
;
and
so
he
said
it
was
adjudged
in
this
Court
in
Pooles
Case
:
and
the
whole
Court
did
agree
that
it
was
Simony
;
for
otherwise
by
this
way
the
Statute
should
be
utterly
defeated
:
and
note
,
that
it
was
said
by
Serjeant
Rolls
at
the
Bar
,
That
it
had
been
often
●adjudged
,
that
the
Obligor
could
not
avoid
such
an
Obligaion
without
special
averment
.
Palme
against
Hudde
.
329.
PAlme
brought
a
Quare
impedit
against
Hudde
,
and
the
case
was
thus
:
It
was
debated
by
Serjeant
Godbold
,
the
Plaintiff
brought
a
Quare
impedit
against
the
Defendant
,
the
Defendant
shewed
how
the
King
was
intitled
by
reason
of
Simony
,
and
that
the
King
had
presented
the
Defendant
,
and
that
he
was
persona
impersonata
of
the
presentation
of
the
King
;
the
Plaintiff
denied
the
Simoniacal
contract
,
upon
which
they
were
at
issue
,
and
it
was
found
for
the
Defendant
,
so
as
that
Judgment
was
given
for
the
Defendant
.
And
the
same
Plaintiff
brought
this
second
Quare
impedit
against
the
same
.
Defendant
,
who
pleaded
all
the
matter
before
and
the
Judgment
,
but
did
not
say
that
he
was
now
persona
impersonata
,
but
that
he
was
tunc
persona
impersonata
,
and
that
was
said
by
the
Serjeant
to
be
naught
:
for
he
said
,
that
at
the
Common
Law
,
no
Parson
might
plead
to
the
Title
of
the
Parsonage
but
only
in
the
abatement
of
the
Wr●t
,
or
such
like
Pleas
:
s●e
Lib.
Entries
503
,
and
522.
and
8
Rep
Foxes
case
:
and
he
said
,
that
that
is
a
Plea
at
the
Common
Law
,
and
not
upon
the
Statut●
of
25
E.
3.
for
then
he
ought
to
have
pleaded
,
that
Est
persona
impersonata
,
and
not
that
fuit
,
and
that
to
enable
him
to
plead
to
the
Title
of
the
Patronage
,
according
,
to
the
Statute
,
for
he
who
will
plead
according
to
the
Statute
ought
to
pursue
it
,
or
otherwise
his
Plea
is
not
good
,
&
he
cannot
plead
to
the
Title
of
the
Patronage
without
shewing
that
he
is
persona
impersonata
:
the
Books
are
clear
7
Rep.
25
,
26.
15
H.
7.
6
,
and
7.
2
R.
2.
Incumbt
.
4.
4
H
8.
Dyer
1.
&
27.
And
to
say
,
that
tunc
fuit
persona
impersonata
,
is
but
an
argumentative
Plea
,
that
because
he
was
then
,
so
he
is
now
,
and
such
P●ea
is
not
good
,
for
it
ought
to
be
positive
and
not
by
way
of
argument
,
or
illation
.
Besides
,
it
may
be
that
he
was
persona
impersonata
,
tunc
,
and
not
tunc
,
for
he
might
resigne
or
be
deprived
after
,
or
the
like
,
and
therefore
it
is
a
Non
sequitur
that
he
was
persona
impersonata
then
,
and
therefore
now
,
and
it
shall
be
intended
rather
that
he
is
not
persona
impersonata
nunc
,
for
paroles
font
Plea
,
and
the
Plea
of
every
man
shall
be
taken
strong
against
himself
;
wherefore
he
concluded
that
the
Plea
was
not
good
.
Foster
agreed
that
the
Parson
cannot
plead
to
the
Title
of
the
Patronage
without
shewing
that
he
is
persona-impersonata
;
but
the
Question
here
is
,
as
he
conceived
,
Whether
the
Plaintiff
be
not
stopped
by
this
recovery
and
Judgment
yet
remaining
in
force
to
say
the
contrary
.
Bankes
Chief
Justice
:
It
is
true
,
that
generally
the
Parson
without
shewing
that
he
is
persona
impersonata
,
cannot
plead
to
the
Title
of
the
Patronage
.
But
whether
the
Defendant
cannot
plead
the
Record
and
Judgment
,
yet
in
force
against
the
Plaintiff
,
without
shewing
that
he
is
persona
impersonata
,
that
is
the
Question
here
.
Note
,
it
was
the
first
time
it
was
argued
.
Harwel
against
Burwel
in
a
Replevin
in
the
Kings
Bench.
230.
THe
Case
was
thus
:
A
man
acknowledged
a
Statute
to
the
Plaintiff
,
and
afterwards
granted
a
Rent-charge
to
the
Defendant
,
afterwards
the
Statute
is
extended
and
safied
and
then
the
grantee
of
the
Rent
distreins
.
And
whether
he
might
distrein
without
bringing
a
Scire
facias
,
was
the
Question
.
And
by
Serjeant
Rolls
,
he
cannot
distrein
without
a
Scire
facias
brought
▪
and
he
took
it
for
a
Rule
,
That
because
the
Conusee
came
in
by
matter
of
Record
,
he
ought
not
to
be
put
out
or
disturbed
without
matter
of
Record
,
for
if
that
should
be
suffered
,
it
would
be
a
great
discouragement
to
Debtees
to
take
this
manner
of
security
for
their
debts
:
and
the
Conusor
cannot
enter
without
bringing
a
Scire
facias
;
and
if
the
Conusor
himself
cannot
enter
,
it
is
a
good
argument
à
fortiori
that
the
grantee
of
a
rent
cannot
distrein
without
a
Scire
facias
;
and
that
the
conusor
himself
cannot
enter
without
bringing
a
Scire
facias
,
vid.
15
H.
7.
15.
4
Rep.
67.
Fullwoods
case
.
And
the
grantee
of
the
Rent
is
as
well
within
the
ground
and
rule
before
put
as
the
conusor
himself
,
and
therefore
he
compared
the
case
to
the
case
in
the
10
Rep.
92.
that
he
who
claims
under
another
ought
to
shew
the
original
conveyance
.
But
he
took
a
difference
where
the
party
comes
in
by
act
of
Law
,
and
where
by
the
act
of
the
party
;
he
who
comes
in
by
act
of
Law
,
shall
not
be
put
to
his
Scire
facias
,
for
so
he
should
be
without
remedy
,
and
if
that
should
be
permitted
,
it
should
a
be
subtile
way
for
the
conusor
to
avoid
the
possession
of
the
conusee
,
and
then
he
himself
to
take
benefit
of
it
,
and
that
should
be
a
fine
way
to
defeat
the
Statute
.
Besides
,
by
this
way
if
the
Statute
should
be
satisfied
by
casual
profit
,
or
if
the
time
should
be
expired
and
the
Statute
satisfied
by
effluxion
of
time
,
if
in
that
Case
the
grantee
should
be
permitted
to
distrein
the
beasts
of
the
conusee
for
a
great
Rent
,
perhaps
before
that
the
Conusee
by
possibility
might
remove
from
the
Land
,
it
would
be
a
great
disturbance
to
the
Conusee
.
Besides
,
if
a
stranger
enter
upon
the
conusee
,
the
conusee
upon
his
regress
may
hold
over
:
but
not
so
in
this
Case
,
where
the
grantee
of
the
Rent
distreins
,
and
that
should
be
also
a
great
prejudice
to
the
conusee
.
But
it
was
objected
that
the
grantee
of
the
rent
could
not
have
a
Scire
facias
,
and
therefore
if
he
might
not
distrain
,
he
should
be
without
remedy
;
To
which
he
answered
,
that
if
it
should
be
so
,
it
is
his
own
fault
,
for
he
might
have
provided
for
himself
by
way
of
covenant
.
But
he
conceived
that
he
might
have
a
Scire
facias
;
for
he
said
,
that
it
is
a
Judicial
Writ
issuing
out
of
the
Rolls
,
which
might
be
framed
and
made
according
to
the
case
of
any
man
:
and
it
is
not
enough
to
say
,
th●●
there
was
never
such
a
Writ
granted
in
the
like
case
,
but
he
ought
to
shew
where
it
was
ever
denied
:
besides
,
it
is
not
always
necessary
that
he
that
shall
have
this
Writ
should
be
party
to
privy
to
the
Record
,
as
app●areth
by
these
Books
,
46
Ass.
Scire
facias
134.
32
E.
3.
Scire
facias
101.
and
38
E.
3.
12.
Br.
Scire
facias
84.
Again
,
it
is
not
necessary
that
the
Scir●
facias
should
be
either
ad
computandum
,
or
ad
rehabendum
terram
,
as
it
was
objected
,
for
as
I
have
said
before
,
it
may
be
framed
according
to
the
case
of
any
man
,
and
vary
accordingly
:
wherefore
he
prayed
Judgment
for
the
Plaintiff
:
and
note
,
that
at
this
time
Justice
Heath
seemed
to
incline
for
the
Plaintiff
.
Thorne
against
Tyler
in
a
Replevin
.
231.
THe
Plaintiff
shewed
that
the
Defendant
took
certain
Beasts
of
the
Plaintiff
such
a
time
and
place
,
and
detained
them
against
gages
and
pledges
,
&c.
The
Defendant
as
Baily
of
the
Mannor
of
the
Lord
Barckley
made
conusance
of
the
taking
of
the
cattle
;
and
said
,
that
long
time
before
the
taking
of
them
,
the
Lord
Barckley
was
seised
in
see
of
a
Mannor
in
Gloucestershire
,
within
which
there
were
Copy-hold-Tenants
time
out
of
mind
,
demiseable
for
one
,
two
,
or
three
lives
:
that
there
was
a
custom
within
the
same
Mannor
,
that
if
any
copyhold-tenant
did
suffer
his
messuage
to
be
ruin'd
for
want
of
repairing
,
or
committed
waste
,
&
that
is
presented
by
the
homage
;
that
such
tenant
so
offending
should
be
amerced
,
and
that
the
Lord
had
used
time
out
of
mind
to
distrein
the
beasts
as
well
of
the
tenant
as
of
the
under-tenant
of
such
custom●ry
tenements
,
levant
and
couchant
upon
such
customary
tenements
for
such
amercement
,
and
further
said
,
that
one
Greening
was
tenant
for
life
of
a
customary
tenement
within
that
Mannor
,
and
made
a
Lease
unto
the
Plaintiff
for
one
year
,
and
that
15
Car.
the
homage
did
present
that
Greening
had
suffered
his
Barn
,
parcel
of
the
customary
Tenements
aforesaid
,
to
fall
for
want
of
repair
,
for
which
he
was
amerced
to
ten
shillings
;
and
that
in
Iuly
16
Car.
the
Defendant
as
Bayly
of
the
Lord
Barckley
did
distrein
the
Plaintiffs
cattle
,
being
under-tenant
for
the
said
amercement
upon
the
said
customary
tenement
,
and
so
he
made
conusance
and
justified
the
taking
of
the
beasts
as
Bayly
of
the
Lord
Barckley
:
The
Plaintiff
confessed
that
Greening
was
tenant
,
and
that
he
made
a
Lease
to
the
Plaintiff
for
a
year
;
and
further
he
confessed
the
want
of
repairing
and
presentment
,
and
the
amercement
upon
it
,
but
he
denied
that
there
is
any
such
custome
:
upon
which
they
were
at
issue
,
and
the
Jury
found
for
the
Defendant
that
there
was
such
a
custom
,
and
it
was
moved
in
arrest
of
Judgment
that
the
custom
was
not
good
,
because
it
was
unreasonable
;
for
here
the
Tenant
offended
,
and
the
under-tenant
is
punished
for
it
,
which
is
against
all
reason
that
one
should
offend
and
another
should
be
punished
for
it
.
Besides
,
the
under-tenant
here
is
a
stranger
,
and
the
custom
shall
never
extend
to
a
stranger
,
and
therefore
the
custom
to
punish
a
stranger
who
is
not
a
Tenant
of
the
Mannor
is
a
void
custom
.
Further
,
it
was
said
that
the
amercement
properly
falls
upon
the
person
,
and
therefore
being
personal
it
cannot
be
charged
upon
the
under-tenant
.
But
notwithstanding
all
these
Objections
,
it
was
resolved
by
all
the
Justices
upon
solemn
debate
,
that
the
custom
was
good
,
and
therefore
that
the
avowant
should
have
Judgment
.
Justice
Mallet
.
custom
si
aliqua
defalta
fuerit
in
reparatione
to
amerce
the
tenant
and
to
distrein
averia
sua
,
vel
averia
subtenentis
levant
and
coucbant
upon
the
customary
tenement
,
is
a
good
custom
.
I
agree
that
a
custom
cannot
extend
to
a
stranger
who
is
not
within
the
Mannor
,
and
therewith
agreeth
3
Eliz.
Dyer
194.
b.
pl.
57.
Davis
Rep.
33.
a.
&
21
H.
6.
and
many
other
Books
▪
but
the
matter
〈◊〉
is
,
whether
the
Plaintiff
be
a
stranger
or
not
,
and
I
conceive
that
he
is
no
stranger
but
a
good
customary
tenant
,
and
he
shall
have
any
benefit
or
priviledge
that
a
customary
tenant
shall
have
,
although
he
holdeth
but
for
one
year
,
and
by
the
same
reason
that
he
shall
enjoy
the
priviledge
of
a
customary
tenant
he
shall
undergo
the
charge
;
for
Qui
s●ntit
commoduin
sentire
debe●
&
●nus
;
and
by
the
general
custom
of
England
every
Copyholder
may
make
a
Lease
for
one
year
,
as
is
resolved
in
the
4
Rep.
26.
●
.
and
it
is
good
;
and
if
so
,
then
the
Plaintiff
here
cometh
in
by
custom
,
and
is
no
stranger
but
a
good
customary
tenant
,
and
therefore
the
custom
may
well
extend
to
him
:
as
there
is
Dominus
pro
tempore
,
so
there
is
tenens
pro
tempore
,
and
such
is
the
Plaintiff
here
:
and
he
held
,
that
the
wife
that
●ath
her
widows
estate
,
according
to
the
custom
of
the
Mannor
,
is
a
good
customary
tenant
.
A
woman
Copyholder
for
life
,
where
the
custom
is
that
the
husband
shall
be
tenant
by
the
curtesie
,
dieth
,
I
hold
the
husband
in
that
case
a
good
customary
tenant
.
In
Gloucester
where
this
Land
is
,
there
is
a
custom
that
Executors
shall
have
the
profits
for
a
year
,
and
I
conceive
them
good
customary
tenants
.
Besides
,
this
under-tenant
here
is
distrainable
by
the
Lord
for
the
rents
and
services
reserved
by
the
Lord
,
or
otherwise
by
this
way
he
might
defeat
the
Lord
of
his
services
.
The
custom
was
,
That
a
woman
should
have
her
widows
estate
;
the
Copy-tenant
made
a
Lease
for
one
year
and
died
,
and
adjudged
that
the
woman
should
have
her
widows
estate
as
excrescent
by
Title
Paramouns
,
the
estate
made
for
one
year
:
see
Hab.
Rep.
And
as
these
the
estate
of
the
wife
was
derivative
;
so
here
:
and
although
it
be
not
the
intire
Copyhold
estate
,
yet
it
is
part
of
it
,
and
a
continuation
of
it
,
and
is
liable
to
every
charge
of
the
Lord
,
6
Rep.
Swaines
case
;
wherefore
he
concluded
that
the
custom
is
good
,
and
that
the
avowant
ought
to
have
Judgment
.
Justice
Heath
:
the
custom
is
good
both
for
the
matter
and
form
of
it
▪
where
it
was
objected
,
that
for
a
personal
injury
done
by
one
,
the
cattle
of
another
cannot
be
dis●teined
,
I
agree
,
that
it
is
unjust
that
where
alius
peccat
alius
plectitur
;
but
our
case
differs
from
that
rule
,
for
this
was
by
custom
,
for
Transit
terra
cum
onere
,
he
who
shall
have
the
land
ought
to
undergo
the
charge
.
Besides
▪
wheresoever
a
custom
may
have
a
good
beginning
,
and
ex
certa
&
rationabili
causa
,
it
is
a
good
custom
,
Bracton
lib.
1.
cap.
3.
But
this
might
have
a
reasonable
ground
at
the
beginning
,
for
here
the
punishment
is
a
qualification
of
the
Law
:
for
where
by
the
Law
the
Copyhold-tenant
is
to
forfeit
his
copyhold-tenement
for
waste
,
either
voluntary
or
permissive
,
now
this
penalty
is
abridged
and
made
more
easie
,
and
therefore
is
very
reasonable
,
43
E.
3.
5.
&
44
E.
3.
13.
custom
,
that
if
a
tenant
be
indebted
to
the
Lord
,
that
he
may
distrein
his
other
tenants
for
it
,
is
not
good
;
but
if
it
were
for
Rent
,
it
should
be
good
,
because
,
it
may
be
,
the
tenants
at
the
first
granted
it
to
the
Lord
,
22
H.
6.
42.
12
H.
7.
15.
&
35
H.
6.
35.
custom
to
sell
a
distress
is
good
,
and
yet
it
cannot
be
done
but
by
Act
of
Parliament
.
And
where
it
was
objected
that
the
amercement
is
personal
,
and
therefore
cannot
extend
to
the
Plaintiff
;
to
that
he
answered
,
that
it
is
not
meerly
personal
,
but
by
custom
(
as
aforesaid
)
is
now
made
a
charge
upon
the
Land
,
and
therefore
not
meerly
personal
.
Besides
,
if
the
custom
in
this
case
had
been
,
that
the
Plaintiff
for
waste
should
forfeit
his
Copyhold-tenement
,
it
had
been
reasonable
à
fortiori
in
this
case
that
he
shall
be
only
amerced
:
wherefore
he
concluded
,
that
the
custom
is
good
,
and
therefore
that
the
avowant
should
have
judgment
.
Bramston
Chief
Justice
:
that
the
custom
is
good
,
and
that
he
conceived
to
be
clear
.
First
,
he
conceived
that
the
custom
is
reasonable
as
to
the
Copy-tenant
,
for
clearly
by
the
Common
Law
,
if
he
suffer
,
or
do
waste
,
he
shall
forfeit
his
Copyhold
,
and
therefore
this
custom
is
in
mitigation
of
the
penalty
;
and
therefore
is
reasonable
,
and
that
is
not
denied
;
but
the
only
doubt
here
is
,
whether
the
custom
to
distrein
the
under-tenant
for
an
amercement
layed
upon
the
tenant
be
a
good
custom
or
not
:
and
he
conceived
it
is
,
for
the
custom
which
gives
the
distress
knits
it
to
the
Land
,
and
therefore
not
meerly
personal
as
it
was
objected
.
And
if
the
custom
had
not
extended
to
the
under-tenant
,
he
might
have
distreined
him
,
for
otherwise
the
Lord
by
such
devise
as
there
is
,
viz.
by
the
making
of
a
Lease
for
one
year
by
the
Tenant
should
be
defeated
of
his
services
,
3
Eliz.
Dyer
199.
resolved
,
custom
to
seise
the
cattle
of
a
stranger
for
a
Heriot
is
not
good
,
because
that
thereby
the
property
is
altered
.
But
custom
that
he
may
distrein
the
cattle
of
a
stranger
for
a
Heriot
is
a
good
custom
,
because
the
distress
is
only
as
a
pledge
and
means
to
gain
the
Heriot
:
and
in
our
case
the
Land
is
charged
with
the
distress
,
and
therefore
the
cattle
of
any
one
which
come
under
the
charge
may
be
distreined
for
it
,
and
therefore
he
held
clearly
that
the
custom
was
good
,
and
that
the
avowant
should
have
Judgment
.
Justice
Barckley
at
this
time
was
impeached
by
the
Parliament
of
High
Treason
.
232.
A
man
was
indicted
for
murder
in
the
County
Palatine
of
Durham
,
and
now
brought
a
Certiorare
to
remove
the
Indictment
into
this
Court
;
and
it
was
argued
by
Keeling
at
the
Bar
,
that
Br'
Domini
Regis
de
Certiorare
non
currit
in
Com'
Palatinum
.
But
the
Justices
there
upon
the
Bench
,
viz.
Heath
and
Bramston
,
seemed
strongly
to
incline
,
that
it
might
go
to
the
County-Palatine
;
and
they
said
,
that
there
were
many
presidents
in
it
▪
and
Justice
Heath
said
,
that
although
the
King
grant
Iura
Regalia
,
yet
it
shall
not
exclude
the
King
himself
;
and
he
said
,
their
power
is
not
independent
,
but
is
corrigible
by
this
Court
,
if
they
proceed
erroneously
;
and
he
said
,
that
in
this
case
the
party
was
removed
by
Habeas
corpus
;
and
by
the
same
reason
that
a
Habeas
corpus
might
go
thither
,
a
Certiorare
might
:
for
which
cause
it
was
awarded
,
that
they
return
the
Writ
of
Certiorare
,
and
upon
the
return
they
would
debate
it
.
Hillary
17ᵒ
Car'
in
the
Common
Plea●
.
●ayton
against
Grange
in
a
second
deliverance
.
233.
JOhn
Layton
brought
a
second
deliverance
against
Anthony
Grange
,
and
declared
of
taking
of
certain
Cattle
in
a
place
called
Nuns-field
in
Swassam-Bulbeck
,
and
detainer
or
them
against
gages
and
pledges
,
&c.
The
defendant
made
conusance
as
Baylift
to
Thomas
Marsh
,
and
said
,
that
long
time
before
the
taking
alledged
,
one
Thomas
Marsh
the
father
of
the
Plaintiff
was
seised
of
the
Mannor
of
Michel-Hall
in
Swass●●-Bulbeck
aforesaid
▪
of
which
the
Land
in
which
time
〈◊〉
of
mind
,
&c.
was
parcel
,
and
that
one
Anthony
Cage
and
Dorothy
his
wife
,
and
Thomas
Grange
and
Thomasine
〈…〉
of
the
Land
in
which
,
&c
,
as
in
the
right
of
the
sai●
Dorothy
and
Thomasine
their
wives
in
de●esne
as
of
s●e
,
and
that
they
held
the
Land
in
which
,
&c.
as
of
his
Mannor
of
Michel-Hall
,
by
soccage
,
viz.
fealty
;
and
certain
Rent
payable
at
certain
days
,
and
that
the
said
Thomas
Marsh
was
s●i●ed
of
the
said
services
by
the
hands
of
the
said
Anthony
Cage
and
Dorothy
his
wife
,
Thomas
Grange
and
Thomasine
his
wife
,
as
by
the
hands
of
his
very
Tenants
and
he
derived
the
Tenancie
to
one
Sir
Anthony
Cage
,
and
the
Seigniory
to
Thomas
Marsh
the
son
,
by
the
death
of
the
said
Thomas
Marsh
the
Father
,
and
because
that
fealty
was
not
done
by
Sir
Anthony
Cage
,
he
as
Bayly
of
the
said
Thomas
Marsh
the
son
did
justifie
the
taking
of
the
said
cattle
ut
ins●a
feodu●●
&
dominium
sue
,
&c.
The
Plaintiff
by
Protestation
said
,
that
Non
〈◊〉
the
Lands
aforesaid
of
the
said
Thomas
Marsh
,
as
of
his
Mannor
of
Michel-Hall
in
Swassa●●-Bulbeck
aforesaid
by
soccage
,
viz.
fealty
and
rent
,
as
aforesaid
,
and
pro
placito
said
,
that
the
Defendant
took
the
cattle
as
aforesaid
and
detained
them
against
gages
and
pledges
,
and
then
traversed
,
Absque
hoc
,
that
the
said
Thomas
Marsh
the
Father
was
seised
of
the
said
services
by
the
hands
of
the
said
Anthony
Cage
and
Dorothy
his
wife
,
and
Thomas
Grange
and
Thomasine
his
wife
,
as
by
the
hands
of
his
very
Tenants
:
upon
which
the
defendant
did
demur
in
Law
,
and
shewed
for
cause
of
demurrer
,
that
the
Plaintiff
had
traversed
a
thing
not
traversable
;
and
if
it
were
traversable
,
that
it
wanted
form
,
and
this
Term
this
Case
was
debated
by
all
the
Judges
,
and
it
was
resolved
by
them
all
,
that
the
Traverse
as
it
is
taken
,
is
not
well
taken
.
Justice
Foster
,
that
the
Traverse
taken
by
the
Plaintiff
is
not
well
taken
at
the
Common
Law
,
the
Lord
was
bound
to
avow
upon
a
person
certain
;
but
now
by
the
Statute
of
21
H.
8.
cap.
19.
he
may
avow
upon
the
Land
,
and
this
avowry
clearly
is
an
avowry
upon
the
Statute
,
for
it
is
infra
feodum
&
dominium
sua
,
&c.
and
so
is
the
old
Entries
565.
then
the
Question
here
is
,
whether
the
Plaintiff
be
privy
or
a
stranger
;
●or
i●
he
he
a
stranger
,
then
clearly
at
the
Common
Law
he
may
plead
no
plea
,
but
out
of
his
Fee
,
or
a
Plea
which
doth
amount
to
so
much
as
appeareth
by
the
Books
,
2
H.
6.
1.
17
E.
3.
14
,
&
15.
34
E.
3.
Avowry
257.
and
many
other
Books
as
you
may
find
them
cited
in
the
9
Rep.
20.
in
the
case
of
Avowry
,
&
here
it
doth
not
appear
but
that
the
Plaintiff
is
a
stranger
,
and
therefore
whether
he
be
inabled
by
the
Statute
of
21
H.
8.
to
take
this
traverse
or
not
,
is
the
Question
:
and
I
conceive
that
he
is
:
true
it
is
,
as
it
was
objected
,
that
this
Statute
was
made
for
the
advantage
of
the
Lord
,
but
I
conceive
,
as
it
shall
enable
the
Lord
to
avow
upon
the
Land
,
so
it
shall
enable
the
Tenant
to
discharge
his
possession
,
as
if
the
avowry
were
upon
the
very
tenant
,
and
so
is
the
Institutes
268
b.
and
so
is
Brown
and
Goldsmiths
case
in
Hobarts
Rep.
129.
adjudged
in
the
point
,
and
the
Plaintiff
here
who
is
a
stranger
is
in
the
same
condition
,
as
a
stranger
was
at
the
Common
Law
,
where
the
Avowry
was
made
upon
the
Land
for
a
Rent-charge
,
in
such
case
he
might
have
pleaded
any
discharge
although
he
were
a
meer
stranger
,
and
had
nothing
in
the
Land
,
so
may
he
now
after
the
Stat.
of
21
H.
8.
Then
admitting
that
the
Plaintiff
might
take
this
Traverse
by
the
Statute
;
then
the
Question
is
whether
the
Plaintiff
hath
taken
a
sufficient
Traverse
by
the
Common
Law
or
not
:
for
the
Statute
saith
,
that
the
Plaintiff
in
the
Replevin
or
second
deliverance
shall
have
the
like
Pleas
as
at
Common
Law
,
and
I
conceive
that
this
plea
is
not
a
good
plea
at
the
Common
Law
.
And
now
I
will
consider
whether
if
the
Plaintiff
had
been
a
very
Tenant
,
he
might
have
pleaded
this
plea
or
not
;
and
I
conceive
that
if
this
traverse
had
been
taken
by
a
very
tenant
,
it
had
not
been
good
.
I
agree
the
9
Rep.
35
Bucknels
case
,
that
Ne
unque
seisie
of
the
services
generally
is
no
good
plea
,
but
Ne
unque
scisie
of
part
of
the
services
is
a
good
plea
;
and
so
is
16
E.
4.
12.
&
22
H.
63.
and
the
reason
that
the
first
Plea
is
not
good
,
is
because
that
thereby
no
remedy
is
left
to
the
Lord
,
neither
by
avowry
,
nor
by
writ
of
customs
and
services
.
And
therefore
the
plea
here
is
not
good
,
because
it
is
a
traverse
of
the
services
generally
.
Besides
,
here
the
traverse
is
not
good
,
because
that
the
Plaintiff
hath
traversed
the
seism
,
and
hath
not
admitted
the
tenure
:
and
it
is
a
rule
in
Law
,
that
no
man
may
traverse
the
seism
of
services
,
without
admitting
a
tenure
;
and
therewith
agreeth
7
E.
4.
28.
20
E.
4.
17.
&
9
Rep.
Bucknells
case
;
and
then
if
the
very
tenant
could
not
have
taken
this
traverse
,
much
less
a
stranger
here
.
Further
,
here
the
tenure
was
alledged
to
be
by
rent
and
fealty
,
and
the
avowry
was
for
the
fealty
,
and
the
Plaintiff
hath
traversed
the
seism
as
well
of
the
rent
which
is
not
in
demand
,
as
of
the
fealty
,
and
therefore
the
traverse
is
not
good
.
But
it
was
objected
,
that
seism
of
rent
is
seism
of
fealty
,
and
therefore
of
necessity
both
ought
to
be
traversed
.
I
agree
,
that
seism
of
rent
is
seism
of
fealty
,
but
it
is
no
actual
seism
of
the
fealty
in
point
of
payment
,
or
to
maintain
an
assise
for
it
,
as
is
44.
E.
3.
11.
&
45
E.
3.
23.
and
the
distress
here
is
for
actual
seism
of
fealty
.
Every
traverse
ought
to
be
adidem
,
as
26
H.
8.
1.
&
9
Rep.
35.
but
here
the
traverse
is
of
the
Rent
which
is
not
in
question
,
&
therefore
is
not
good
in
matter
of
form
.
Wherefore
he
gave
Judgment
for
the
avowant
.
Justice
Reeve
:
the
first
thing
here
co●siderable
is
,
whether
this
be
a
conusance
at
the
Common
Law
,
or
upon
the
Statute
;
and
I
hold
clearly
that
it
is
within
the
Statute
;
and
for
that
see
new
Entries
597
&
599
▪
&
27
H.
8.
20.
and
it
is
clear
that
the
Lord
hath
Election
either
to
avow
upon
the
Statute
,
or
at
the
Common
Law
;
and
that
is
warranted
by
Institutes
268.
and
312.
9
Rep.
23.
b.
36.
a.
&
136.
a.
and
then
admitting
,
that
it
be
an
avowry
upon
the
Statute
.
The
second
point
is
,
whether
the
Plaintiff
be
inabled
by
the
Statute
to
take
this
traverse
or
not
,
for
it
is
clear
,
that
at
the
Common
Law
the
Plaintiff
could
not
have
this
Plea
,
for
a
stranger
could
not
plead
any
thing
,
but
hors
d●●son
fee
,
or
a
plea
which
did
amount
to
as
much
.
I
agree
the
Books
of
Br.
Avowry
113.
&
61.
&
9
Rep.
36.
&
27
H.
8.
4.
&
●0
.
&
Br.
Avowry
107.
&
Instit.
268.
which
are
against
me
;
yet
I
conceive
und●r
favour
,
that
notwithstanding
any
thing
that
hath
been
said
,
that
the
Plaintiff
is
not
enabled
by
the
Statute
to
take
this
traverse
;
and
I
ground
my
Opinion
upon
the
Reason
at
Common
Law
,
as
also
upon
the
Stat●●e
;
the
first
reason
at
the
Common
Law
,
I
ground
upon
the
Rule
in
Law
,
res
inter
alios
act●
,
alteri
nocere
non
debet
,
it
is
not
reason
that
he
who
is
a
stranger
shall
take
upon
himself
to
plead
to
the
Title
of
the
Tenure
,
with
which
he
hath
nothing
to
do
in
prejudice
of
the
very
Tenant
,
and
this
reason
is
given
by
the
Books
of
22
H.
6
&
39
E.
3.
34.
My
second
reason
is
grounded
upon
the
maxime
in
Law
,
which
is
,
That
in
pleading
every
man
ought
to
plead
that
which
is
pertinent
for
him
and
his
Case
.
And
that
's
the
reason
that
the
Incumbent
at
the
Common
Law
cannot
plead
to
the
right
of
the
Patronage
wherein
he
hath
nothing
,
but
the
Patrou
shall
plead
it
,
as
appeareth
by
the
7
Rep.
26.
and
many
other
Books
there
cited
;
and
these
are
my
reasons
at
the
Common
Law
,
wherefore
the
Plaintiff
being
a
stranger
cannot
plead
this
Plea
.
Secondly
,
I
ground
my self
upon
the
purvieu
of
the
Statute
to
prove
that
the
Plaintiff
cannot
plead
this
plea
,
the
words
of
which
are
,
That
the
Plaintiffs
shall
have
such
Pleas
and
Aid-prayers
as
at
the
Common
Law
:
and
if
the
Plaintiff
could
have
pleaded
this
Plea
by
the
Statute
,
the
Statute
would
not
have
enacted
that
there
should
be
the
like
Aid-prayers
as
at
the
Common
Law
,
for
if
the
Plaintiff
might
plead
this
plea
,
then
there
need
not
any
Aid-prayer
;
and
as
at
the
Common
Law
no
Aid-prayer
was
grantable
of
a
stranger
to
the
avowry
,
so
neither
is
it
so
now
;
and
to
prove
that
he
cited
27
H.
8.
4.
19
Eliz.
New
Entries
598.
&
26
H.
8.
5.
against
the
Institutes
,
312.
a.
Besides
,
the
Statute
gives
the
like
pleas
as
at
the
Common
Law
,
and
therefore
no
new
pleas
,
and
that
caused
me
to
give
those
reasons
before
at
the
Common
Law
:
and
if
this
should
be
suffered
,
every
wrangler
by
putting
in
of
his
cattle
,
should
put
the
Lord
to
shew
his
title
,
which
would
be
a
great
prejudice
to
him
.
The
Statute
of
25
E.
3.
c.
7.
enables
the
possessor
to
plead
to
the
title
of
the
Patronage
,
and
that
it
is
not
till
induction
if
it
be
against
a
Common
person
,
which
he
ought
to
shew
,
otherwise
he
is
not
inabled
to
plead
to
the
title
,
as
it
is
in
the
7
Rep.
26.
a
&
Dyer
fol.
1.
b.
But
note
,
there
the
Statute
enables
him
to
plead
to
the
title
;
which
is
not
so
in
our
Case
,
the
general
words
of
the
Statute
of
West
.
2.
have
always
received
construction
at
the
Common
Law
,
as
appeareth
by
18
E.
3.
3.
10.
22
E.
3.
2.
&
9
Rep.
Bucknells
case
,
and
11
Rep.
62
,
63.
there
you
may
see
many
Cases
cited
which
have
the
like
words
of
reference
to
the
Common
Law
,
as
the
Statute
in
that
Case
,
and
there
always
they
have
received
construction
by
the
common
Law
:
the
Authorities
cited
before
against
me
,
are
not
against
me
,
for
they
say
that
the
Plaintiff
after
this
Statute
may
have
any
answer
which
is
sufficient
,
so
clearly
by
these
authorities
the
answer
ought
to
be
sufficient
,
and
that
is
the
question
in
our
Case
,
Whether
the
answer
be
sufficient
or
no
,
which
as
I
have
argued
,
it
is
not
;
because
the
Plaintiff
is
not
enabled
to
take
this
traverse
by
the
Common
Law
;
and
the
Statute
doth
not
give
any
other
Plea
than
at
the
Common
Law
.
26
H.
8.
6.
is
express
in
the
point
,
That
the
Plaintiff
being
a
stranger
,
is
not
enabled
by
this
Statute
to
meddle
with
the
tenure
;
wherefore
I
conceive
that
the
Plaintiff
is
not
a
person
sufficient
within
the
Statute
to
take
this
traverse
without
taking
some
estate
upon
him
,
as
in
see
for
life
or
years
,
&c.
But
for
the
latter
point
,
admitting
that
the
Plaintiff
were
enabled
by
the
Statute
to
take
this
traverse
;
yet
I
hold
clearly
,
that
as
this
case
is
,
he
hath
not
pursued
the
form
of
the
common
Law
in
the
taking
of
it
:
and
I
agree
the
rule
that
the
Plantiff
cannot
traverse
the
seism
without
admitting
of
a
tenure
,
and
therefore
the
traverse
here
is
not
good
,
because
he
takes
all
the
tenure
by
protestation
.
Besides
,
I
agree
that
traverse
of
seism
generally
is
not
good
,
9
Rep.
Bucknells
case
;
and
I
agree
that
traverse
of
seism
per
manus
is
not
good
without
confessing
the
tenure
for
part
:
and
here
he
takes
all
the
tenure
by
protestation
,
and
therefore
not
good
,
18
E.
2.
Fitz.
Avowry
217.
is
express
in
the
point
that
the
traverse
is
not
good
.
Wherefore
I
conclude
that
Judgment
ought
to
be
given
for
the
avowant
.
Justice
Crawley
,
that
Judgment
ought
to
be
given
for
the
avowant
;
he
held
clearly
that
the
avowry
is
within
the
Statute
,
and
that
being
within
the
Statute
the
Plaintiff
is
enabled
to
take
this
traverse
,
and
that
he
grounded
upon
the
Books
of
34.
H.
8.
Br.
Avowry
113.
24.
H.
4.
20.
9
Rep.
36.
and
Hobarts
Rep.
129.
Brown
and
Goldsmiths
Case
.
Then
he
being
inabled
by
this
Statute
to
take
this
plea
as
a
very
tenant
,
the
Question
is
,
Whether
the
Traverse
here
per
manus
be
good
or
not
,
and
he
held
not
;
but
he
ought
to
have
traversed
the
tenure
as
this
Case
is
:
that
the
traverse
of
the
seism
per
manus
generally
is
not
good
,
I
ground
me
upon
the
9
Rep.
Bucknells
Case
35.
a.
and
I
agree
the
third
rule
there
put
,
that
Ne
unque
seisie
per
manus
is
a
good
plea
,
but
that
must
be
intended
where
the
Plaintiff
confesseth
part
of
the
tenure
,
which
he
hath
not
done
in
this
Case
,
as
it
appeareth
by
the
fourth
rule
there
taken
,
which
is
an
exception
out
of
the
precedent
rule
,
upon
which
I
ground
my
opinion
,
and
therefore
the
traverse
here
is
not
good
.
Besides
,
Homage
and
Fealty
are
not
within
the
Statute
of
Limitations
,
and
therefore
not
traversable
:
and
if
it
should
be
permitted
,
the
rule
in
Bevills
Case
4.
Rep.
11
,
12.
and
Com.
93.
Woodlands
Case
,
which
resolve
that
they
are
not
traversable
,
should
be
by
this
means
quite
defeated
.
Further
,
in
this
Case
the
fealty
only
is
in
demand
,
and
the
Plaintiff
hath
traversed
the
seism
of
the
rent
as
well
as
of
the
fealty
,
which
is
not
good
.
I
agree
the
Book
in
the
9
Rep.
Bucknells
Case
fol.
35.
that
seism
is
not
traversable
but
only
for
that
for
which
the
avowry
is
made
,
if
not
that
seism
be
alledged
of
a
superior
service
(
for
which
the
avowry
is
not
)
which
by
the
Law
is
seism
of
the
Inferiour
service
,
with
which
agrees
26
H.
8.
1.
&
21
E.
4.
64.
But
in
our
Case
seism
is
not
alledged
of
a
superiour
service
,
for
which
the
avowry
is
not
made
but
of
an
inferiour
,
viz.
of
a
rent
which
is
inferiour
to
fealty
(
as
the
Books
are
of
21
E.
3.
52.
Avowry
115.
and
19
E.
4.
224.
)
and
which
of
right
ought
to
be
so
,
unless
a
man
esteem
and
value
his
money
above
his
conscience
;
and
therefore
the
traverse
of
the
rent
which
is
inferior
service
and
not
in
demand
,
is
not
good
.
Besides
,
you
cannot
traverse
the
seism
of
the
fealty
without
the
traverse
of
the
seism
of
the
rent
,
because
the
seism
of
rent
is
the
seism
of
fealty
,
and
the
rent
is
not
here
in
demand
,
and
therefore
not
traversable
,
and
therefore
you
ought
to
have
traversed
the
tenure
;
for
although
it
be
said
,
that
rent
which
is
annual
is
inferiour
to
all
other
services
,
4
Rep.
9.
a.
yet
it
is
resolved
that
the
seism
of
rent
is
seism
of
all
other
services
:
further
,
I
conceive
that
if
you
avow
for
one
thing
,
you
need
not
to
alledge
seism
of
other
services
.
24
E.
3.
17.
&
50.
seemeth
to
cross
the
other
authorities
before
cited
;
but
I
believe
the
latter
authorities
.
Wherefore
I
conclude
that
Judgment
ought
to
be
given
for
the
avowant
.
Bankes
Chief
Justice
:
I
conceive
that
it
is
a
plain
avowry
upon
the
Statute
,
and
therefore
I
need
not
to
argue
it
;
here
are
two
Questions
only
.
The
first
,
Whether
this
Plaintiff
,
who
is
a
stranger
,
be
enabled
by
the
Statute
of
21
H.
8.
to
plead
in
Bar
of
this
conusance
or
not
.
Secondly
,
admitting
that
he
be
inabled
by
the
Statute
to
plead
this
plea
,
whether
the
traverse
be
here
wel●
taken
or
not
.
To
the
first
,
I
hold
that
he
is
inabled
by
the
Statute
to
take
this
traverse
:
but
for
the
second
,
I
hold
clearly
,
that
the
traverse
is
not
well
taken
:
here
the
Plaintiff
and
Defendant
are
both
strangers
,
so
as
here
is
neither
the
very
Lord
nor
the
very
Tenant
.
And
now
I
will
consider
what
the
Common
Law
was
before
the
Statute
,
it
is
clear
that
by
the
Common
Law
a
stranger
might
plead
nothing
in
discharge
of
the
Tenancie
,
nor
could
plead
a
release
,
as
the
Books
are
34
E.
3.
Avowry
257.
and
38
E.
3.
Avowry
61.
he
could
not
plead
rien
arrere
,
or
levied
by
distress
,
he
could
plead
no
Plea
but
hors
de
son
fee
,
or
a
Plea
which
did
amount
to
so
much
.
I
confess
that
the
Book
of
5
E.
4.
2.
b.
is
that
the
Tenant
in
a
Replevin
could
not
plead
hors
de
son
fee
,
but
the
Book
of
28
H
6.
12.
is
against
it
.
True
it
is
,
that
in
some
special
Case
,
as
where
there
is
Covin
or
Collusion
in
the
avowant
,
there
the
Tenant
shall
set
forth
the
special
matter
,
as
it
is
in
9
Rep.
20.
b.
Now
there
are
two
Reasons
given
in
our
Books
;
wherefore
the
Plaintiff
in
a
Replevin
being
a
stranger
,
could
not
plead
in
Bar
of
the
Avowry
.
The
first
is
,
that
the
Seignory
being
in
question
,
it
is
matter
of
privity
betwixt
the
Lord
and
the
Tenant
.
The
second
,
that
the
Law
doth
allow
unto
every
man
his
proper
plea
,
which
is
proper
to
his
Case
,
and
that
he
ought
to
plead
and
no
other
,
as
appeareth
by
the
Books
,
12
Ass.
p.
2.
13
H.
8.
14.
2.
H.
7.
14.
13
H.
7.
18.
Lit.
116.
35
H.
6.
13.
&
45
E.
3.
24.
Now
seeing
that
the
Plaintiff
being
a
stranger
could
not
plead
this
Plea
at
the
Common
Law
,
the
Question
now
is
,
Whether
he
be
inabled
by
the
Statute
to
take
this
Plea
or
not
;
the
words
of
the
Statute
are
,
That
the
Plaintiff
and
Defendant
shall
have
the
like
Pleas
and
Aid-prayer
as
at
the
Common
Law
;
and
therefore
it
was
objected
that
it
doth
not
give
any
new
Plea
;
true
it
is
,
that
by
the
express
words
thereof
that
it
gives
not
any
new
Plea
,
but
yet
I
conceive
that
any
stranger
is
enabled
to
plead
any
plea
in
discharge
of
the
Conusance
by
the
equity
of
this
Statute
;
at
the
Common
Law
avowry
was
to
be
made
upon
the
person
,
and
therefore
there
was
no
reason
that
the
Plaintiff
being
a
stranger
should
plead
any
thing
in
Bar
of
the
Avowry
of
Conusance
,
but
now
the
Statute
enables
the
Lord
to
avow
upon
the
Land
,
not
naming
any
person
certain
,
it
is
but
justice
and
equity
that
the
Plaintiff
should
be
inabled
to
plead
any
thing
in
discharge
of
it
.
I
compare
this
Case
to
the
Case
in
the
3
Rep.
fol.
14.
Harberts
Case
,
where
it
is
resolved
that
s●ossce
of
a
Conusor
of
a
Statute
being
only
charged
,
may
draw
the
other
in
to
be
equally
charged
;
and
if
execution
be
sued
against
him
only
,
that
he
may
discharge
himself
by
Audita
querela
for
so
much
.
8
E.
4.
23.
a.
there
the
Defendant
avowed
for
a
rent-charge
,
the
Plaintiff
shewed
how
that
one
E.
leased
the
Land
to
him
and
prayed
in
aid
of
him
,
and
resolved
that
he
should
not
have
aid
because
the
avowry
is
for
Rent-charge
,
so
as
th●
Plaintiff
might
plead
any
plea
that
he
would
in
disch●●ge
of
the
land
;
now
by
the
same
reason
,
where
the
lands
of
the
Plaintiff
were
charged
with
a
rent-charge
,
he
might
at
the
common
Law
have
pleaded
any
thing
in
discharge
of
his
land
;
by
the
same
reason
where
there
is
an
avowry
upon
the
Land
according
to
the
Statute
,
the
land
being
charged
,
the
Plaintiff
may
plead
any
thing
in
discharge
thereof
;
and
this
is
my
first
reason
.
My
second
reason
is
,
that
this
Law
hath
been
construed
be
equity
,
for
the
benefit
of
the
Lord
,
and
therefore
it
shall
be
construed
by
equity
for
the
benefit
of
the
Tenant
also
,
Instit.
286.
b.
My
third
reason
is
,
Although
the
Plaintiff
be
a
stranger
and
claimeth
no
interest
in
the
Land
,
yet
for
the
saving
of
his
goods
he
may
justifie
this
plea
;
I
may
plead
an
assault
upon
another
who
endeavoreth
to
take
away
my
goods
,
and
I
may
justifie
maintenance
where
it
is
in
defence
of
my
interest
,
as
it
appeareth
in
15
H.
7.
2.
and
34
H.
6.
30.
Fourthly
and
lastly
,
upon
the
authorities
in
Law
after
the
making
of
this
Statute
,
I
conceive
that
the
Plaintiff
may
well
take
the
Plea
,
27
H.
8.
4.
The
plaintiff
prayed
in
aid
of
a
stranger
and
had
it
,
which
could
not
be
●t
the
Common
Law
,
as
appeareth
by
3
H.
54.
and
34
H.
6.
46.
and
many
other
Books
;
and
for
Books
in
the
point
,
34
H.
8.
Petty
Brooke
235.
Institutes
268.
9
Rep.
36.
&
Hobarts
rep.
150
,
151.
Brown
and
Goldsmiths
Case
:
wherefore
I
hold
that
the
Plaintiff
may
by
the
equity
of
the
Statute
plead
this
plea.
But
it
was
objected
by
my
brother
Reeve
,
that
by
the
Statute
of
25
E
3.
c.
7.
It
is
enacted
that
the
possessor
shall
plead
in
Bar
,
and
therefore
the
incumbent
before
induction
cannot
plead
in
Bar
,
as
it
is
resolved
in
4
H.
Dyer
8.
1.
and
31
E.
3.
Incumbt
.
6.
and
upon
the
same
reason
he
conceived
it
should
be
hard
in
our
Case
,
that
the
Plaintiff
who
is
but
a
stranger
,
not
taking
upon
him
any
estate
,
should
be
admitted
to
plead
this
plea
;
especially
the
Statute
in
this
Case
saying
,
that
the
Plaintiff
shall
have
the
like
pleas
as
at
the
Common
Law
:
To
that
I
answer
,
that
by
the
Statute
of
25
E.
3.
it
is
enacted
that
the
possessor
shall
plead
in
Bar
,
and
therefore
clearly
there
he
ought
to
shew
that
he
is
possessor
:
otherwise
he
cannot
plead
in
Bar
,
and
therefore
not
like
to
our
Case
:
and
the
Novel
Entries
598
,
599.
doth
not
make
against
it
,
for
there
it
was
not
upon
the
Statute
,
and
26
H.
8.
6.
is
express
that
the
Plaintiff
being
a
stranger
is
enabled
by
the
Statute
of
21
H.
8.
to
take
this
plea
:
Wherefore
I
conclude
this
point
,
that
the
Plaintiff
is
inabled
by
the
Statute
to
plead
any
thing
in
Bar
of
the
avowry
:
But
for
the
second
point
,
I
hold
clearly
that
the
traverse
as
it
is
here
taken
is
not
well
taken
,
it
is
only
an
equitable
construction
that
the
Plaintiff
shall
plead
this
plea
,
as
I
have
argued
before
,
and
therefore
he
ought
to
pursue
the
form
of
the
Common
Law
,
in
the
form
of
his
traverse
,
which
he
hath
not
here
done
,
and
therefore
the
traverse
is
not
good
,
and
where
the
seism
is
not
material
,
there
it
is
not
traversable
,
and
in
this
Case
the
seisim
of
the
fealty
is
not
material
,
for
it
is
out
of
the
Statute
of
Limitations
,
and
therefore
not
traversable
:
and
so
is
it
in
the
Case
of
a
gift
in
tail
,
and
grant
of
a
Rent-charge
,
it
is
not
traversable
,
because
that
the
seism
is
not
material
,
7
E.
4.
29.
Com.
94.
8.
Rep.
64.
Fosters
Case
.
Secondly
,
where
the
Seigniory
is
not
in
question
,
there
no
traverse
of
seism
,
so
it
is
in
Case
of
Writ
of
Escheat
,
Cessavit
Rescous
,
&c.
and
therewith
agree
the
Books
of
22
H.
6.
37.
37.
H.
6.
25.
&
4.
Rep.
11.
a.
Bevills
Case
.
Thirdly
,
where
the
Lord
and
Tenant
differ
in
the
services
,
there
no
traverse
of
the
seism
but
of
the
tenure
,
but
where
they
agree
in
the
services
,
there
the
seism
may
be
traversed
,
and
therewith
agree
the
Books
of
21
E.
4.
64.
&
84.
20
E.
4.
17.
22
Ass.
p.
68.
&
9
Rep.
33.
Bucknells
Case
;
and
therefore
the
traverse
here
is
not
good
.
First
,
because
it
is
a
general
traverse
of
the
seism
per
manus
,
the
tenure
not
being
admitted
as
it
ought
to
be
by
the
fourth
rule
in
Bucknells
Case
,
and
therewith
agreeth
23
H.
6.
Avowry
15.
Besides
,
it
is
a
Rule
in
Law
,
That
a
man
shall
never
traverse
the
seism
of
services
,
without
admitting
of
a
tenure
,
and
in
this
Case
he
took
the
tenure
by
protestation
,
and
therefore
the
traverse
here
is
not
good
,
and
therewith
agre●●
15
E.
2.
Avowry
214.
Further
,
the
traverse
here
is
not
good
,
because
he
hath
traversed
a
thing
not
in
demand
,
which
is
the
rent
,
for
he
ought
to
have
traversed
the
seism
of
the
fealty
only
for
which
the
distress
was
taken
,
and
not
the
rent
as
here
he
hath
done
,
and
therewith
agreeth
9
Rep.
35.
a.
and
26
H.
8.
1.
But
as
this
Case
is
,
he
could
not
traverse
the
feal●y
only
because
that
seism
of
rent
is
seism
of
fealty
,
and
therewith
agreeth
13
E.
3.
Avowry
103.
3
E.
2.
Avowry
188.
&
4
Rep.
8.
b.
Bevills
Case
,
and
therefore
he
ought
to
traverse
the
tenure
.
True
it
is
,
as
it
was
objected
by
my
Brother
Foster
,
that
seism
of
Rent
is
not
an
actual
seism
of
fealty
as
to
have
an
assise
,
but
is
a
sufficient
seism
as
to
avow
.
And
we
are
here
in
Case
of
an
avowry
,
and
therewith
agreeth
the
4
Rep.
9.
a.
Bevills
Case
:
wherefore
I
conclude
that
Judgment
ought
to
be
given
for
the
avowant
.
Here
note
,
that
it
was
resolved
by
all
the
Judges
of
the
Common
Pleas
,
that
a
traverse
of
seism
per
manus
generally
without
admitting
of
a
tenure
is
not
good
,
and
therefore
see
9
Rep.
34.
b.
&
35.
a.
which
seemeth
to
be
contrary
.
Hill
.
17ᵒ
Car
,
in
the
Kings
Bench.
Hayward
against
Duncombe
and
Foster
.
234.
THe
Case
was
thus
:
The
Plaintiff
here
being
seised
of
a
Mannor
with
an
advowson
appendant
,
granted
the
next
avoidance
to
I.
S.
and
afterwards
bargained
and
sold
the
Mannor
with
the
advowson
to
the
Defendants
D.
and
F.
and
a
third
person
,
and
covenanted
with
them
that
the
Land
is
free
from
all
incumbrances
.
Afterwards
the
third
person
released
to
the
Defendants
,
who
brought
a
writ
of
Covenant
in
the
Common
Pleas
,
and
there
Judgment
was
given
that
the
Action
would
lie
.
Whereupon
Hayward
brought
a
Writ
of
Error
in
this
Court
.
The
point
shortly
is
this
,
Whether
the
Writ
of
covenant
brought
by
the
Defendants
without
the
third
person
who
released
were
good
or
not
;
and
that
rests
only
upon
this
,
Whether
this
Action
of
covenant
to
which
they
were
all
intitled
before
the
release
,
might
be
transferred
to
the
other
Defendants
only
by
the
release
or
not
.
And
it
was
objected
,
that
it
could
not
,
because
it
is
a
thing
in
Action
,
and
a
thing
vested
which
cannot
be
transferred
over
to
the
other
two
only
by
the
release
;
but
that
all
ought
to
joyn
in
the
Action
of
covenant
notwithstanding
.
Rolls
contrary
,
because
that
after
this
release
it
is
now
all
one
as
if
the
bargain
and
sale
had
been
made
to
those
two
only
,
and
now
in
an
Action
brought
against
them
two
,
they
may
plead
a
seoffment
made
to
them
only
,
without
naming
of
the
third
who
released
,
and
so
it
is
resolved
in
33
H.
6.
4
,
&
5
,
&
6
Rep.
fol.
79.
a.
Besides
this
covenant
here
is
a
real
covenant
,
and
shall
go
to
assignees
,
as
it
is
resolved
in
5
Rep.
Spencers
Case
;
and
here
is
as
violent
relation
as
if
the
seoffment
had
been
made
to
them
two
only
.
It
was
objected
by
Justice
Heath
,
What
if
the
other
died
?
It
was
answered
,
perhaps
it
shall
there
survive
,
because
that
it
is
an
Act
in
Law
,
and
the
Law
may
transfer
that
which
the
Act
of
the
party
cannot
,
because
that
Fortior
est
dispositio
legis
quam
hominis
,
&c.
Booremans
Case
.
235.
BOoreman
was
a
Barrister
of
one
of
the
Temples
,
and
was
expelled
the
house
,
and
his
Chamber
seised
for
non-payment
of
his
Commons
,
whereupon
he
by
New
digate
prayed
his
writ
of
restitution
,
and
brought
the
writ
in
Court
ready
framed
;
which
was
directed
to
the
Benchers
of
the
said
Society
:
but
it
was
denied
by
the
Court
,
because
there
is
none
in
the
Inns
of
Court
to
whom
the
writ
can
be
directed
,
because
it
is
no
body
corporate
,
but
only
a
voluntary
Society
,
and
submission
to
Government
;
and
they
were
angry
with
him
for
it
,
that
he
had
waived
the
ancient
and
usual
way
of
redress
for
any
grievance
in
the
Inns
of
Court
,
which
was
by
appealing
to
the
Judges
,
and
would
have
him
do
so
now
.
Bambridge
against
Whitton
and
his
wife
.
236.
IN
an
Ej●ctione
firme
upon
Not
Guilty
pleaded
,
a
special
Verdict
was
●ound
,
&
the
case
upon
the
special
verdict
this
;
A
Copyhold
Tenant
in
fee
doth
surrender
into
the
hands
of
two
Tenants
,
unto
the
use
of
I.
W.
immediately
after
his
death
,
and
whether
it
be
a
good
surrender
or
no
,
was
the
question
.
Harris
:
that
the
surrender
is
void
.
Estates
of
Copyholds
ought
to
be
directed
by
the
rule
of
Law
,
as
is
said
in
4
Rep.
22.
b.
9
Rep.
79.
&
4
Rep.
30.
And
as
in
a
grant
,
a
grant
to
one
in
ventre
sa
mier
is
void
,
so
also
in
a
will
or
devise
,
and
as
it
is
resolved
in
Dyer
303.
p.
50.
so
it
hath
been
adjudged
that
the
surrender
to
the
use
of
an
Infant
in
ventre
sa
mier
is
void
:
and
as
at
Common
Law
a
Freehold
cannot
begin
in
futuro
,
so
neither
a
Copyhold
,
for
so
the
surrenderer
should
have
a
particular
estate
in
him
without
a
donor
or
lessor
,
which
by
the
rule
of
Law
cannot
be
:
and
he
took
a
difference
betwixt
a
D●vise
by
Will
,
&
a
Grant
executed
;
in
a
devise
it
may
be
good
,
but
not
in
a
grant
executed
:
and
here
he
took
a
difference
where
the
Grant
is
by
one
intire
clause
or
sentence
,
and
where
it
is
by
several
clauses
,
32
E.
1.
taile
21.
Dyer
272.
p.
30.
Com.
520.
b.
3
Rep.
10.
Dowties
Case
,
and
2
Rep.
Doddingtons
case
.
For
instance
,
I
will
put
only
the
Case
in
Dyer
and
the
Comment.
A
Termor
grants
his
Term
habendum
after
his
death
,
there
the
Habendum
only
is
void
,
and
the
grant
good
;
but
if
he
grant
his
Term
after
his
death
,
there
the
whole
grant
is
void
,
because
it
is
but
one
sentence
:
So
I
say
in
our
Case
,
because
it
is
but
one
clause
,
the
whole
grant
is
void
.
Another
difference
is
,
Where
the
distinct
clause
is
repugnant
and
where
not
;
where
it
is
repugnant
there
it
is
void
and
the
grant
good
,
quia
utile
per
inutile
non
vitiatur
:
But
in
our
Case
,
as
I
have
said
before
it
is
one
intire
sentence
,
M.
13.
or
23
Iac.
in
this
Court
,
Rot.
679.
Sympson
and
Southwells
Case
,
the
very
Case
with
our
Case
.
There
was
a
surrender
of
a
Copy
tenant
to
the
use
of
an
Infant
in
ventre
sa
mier
after
the
death
of
the
surrenderor
,
and
there
it
was
resolved
by
all
the
Judges
except
Dodderidge
that
the
surrender
was
void
,
First
,
because
it
was
to
the
use
of
an
Infant
in
ventre
sa
mier
,
and
Secondly
,
because
it
was
to
begin
in
futuro
,
which
is
contrary
to
the
rule
in
Law
;
and
Copy-tenants
as
it
was
there
said
,
ought
to
be
guided
by
the
rules
of
Law
:
but
Dodderidge
doubted
of
it
,
and
he
agreed
the
Case
at
Common
Law
,
that
a
freehold
could
not
commence
in
futuro
,
but
he
doubted
of
a
Copyhold
;
and
he
put
the
Case
of
surrender
to
the
use
of
a
Will
;
But
he
said
,
that
Judgment
was
afterwards
given
by
Coke
Chief
Justice
in
the
name
of
all
the
other
Judges
that
the
surrender
was
void
,
and
therefore
Quod
querens
nihil
capiat
per
billam
,
wherefore
he
concluded
that
the
surrender
was
void
,
and
prayed
the
Judgment
of
the
Court.
Langhams
Case
.
237.
LAngham
a
Citizen
and
Freeman
of
London
was
committed
to
Newgate
by
the
Court
of
Aldermen
,
upon
which
he
prayed
a
Habeas
corpus
,
which
was
granted
,
upon
which
return
was
mane
,
First
,
it
is
set
forth
by
the
return
,
that
London
is
an
ancient
City
and
Incorporate
by
the
name
of
Mayor
,
Comminalty
and
Citizens
,
and
that
every
Freeman
of
the
City
ought
to
be
sworn
,
and
that
a
Court
of
Record
had
been
held
time
out
of
mind
,
&c.
before
the
Mayor
and
Aldermen
.
And
that
there
is
a
custom
,
that
if
any
Freeman
be
elected
Alderman
;
that
he
ought
to
take
an
Oath
cujus
tenor
sequitur
in
haec
verba
,
viz.
You
shall
well
serve
the
King
in
such
a
Ward
in
the
Office
of
Alderman
of
which
you
are
elected
,
and
you
shall
well
intreat
:
the
people
to
keep
the
Peace
and
the
Laws
and
Priviledges
within
and
without
the
City
:
you
shall
well
observe
and
duly
you
shall
come
to
the
Court
of
Orphans
and
Hustings
if
you
be
not
hindred
by
Command
of
the
King
,
or
any
other
lawful
cause
:
you
shall
give
good
counsel
to
the
Mayor
:
you
shall
not
sell
Bread
,
Ale
,
Wine
,
or
Fish
by
retail
,
&c.
Then
is
set
forth
a
custome
,
that
if
any
person
be
chosen
Alderman
,
he
shall
be
called
to
the
Court
,
and
the
Oath
tendred
to
him
;
and
if
he
refuse
to
take
it
,
then
he
shall
be
committed
,
until
he
take
the
Oath
.
Then
is
set
forth
,
that
by
the
Statute
of
7
R.
2.
all
the
customs
of
the
City
of
London
are
confirmed
.
And
lastly
,
is
set
forth
that
the
11
of
Ian.
Langham
being
a
freeman
of
London
,
and
having
taken
the
Oath
of
a
freeman
was
debito
modo
electus
Alderman
of
Portsoken-ward
,
and
being
habilis
&
idoneus
was
called
the
first
of
February
to
the
Court
of
Aldermen
,
and
the
Oath
tendred
to
him
,
and
that
he
refused
to
be
sworn
in
contemptum
Curiae
,
&
contra
confuetudines
,
&c.
wherefore
according
to
the
custom
aforesaid
,
he
was
committed
by
the
Court
of
Aldermen
to
Newgate
,
until
he
should
take
the
Oath
,
&
haec
fuit
causa
&c.
To
this
retorn
many
exceptions
were
taken
.
Maynard
:
the
retorn
is
insufficient
for
matter
and
form
;
for
form
it
is
insufficient
,
for
the
debito
modo
electus
,
without
shewing
by
whom
and
how
,
is
too
general
:
then
it
is
insufficient
for
the
matter
,
for
he
is
imprisoned
generally
,
and
not
until
he
takes
the
Oath
,
which
utterly
takes
away
the
liberty
of
the
subject
,
for
by
this
means
he
may
be
imprisoned
for
ever
.
Besides
,
here
is
no
notice
given
to
him
that
he
was
chosen
Alderman
,
but
they
elect
him
,
and
then
tender
him
the
Oath
,
without
telling
him
that
he
was
chosen
Alderman
,
and
therefore
the
retorn
not
good
,
for
it
ought
to
be
certain
to
every
intent
.
Further
,
the
Oath
is
naught
and
unreasonable
,
for
he
ought
to
forswear
his
Trade
,
for
if
he
sell
Bread
,
Ale
,
Wine
,
or
Fish
before
,
now
he
must
swear
that
he
shall
never
sell
them
by
retail
after
,
which
is
hard
and
unreasonable
,
for
perhaps
he
may
be
impoverished
after
,
and
so
necessitated
to
use
his
Trade
,
or
otherwise
perish
;
wherefore
for
these
reasons
he
conceived
that
the
Retorn
was
insufficient
.
Glynn
upon
the
same
side
,
that
the
Retorn
is
insufficient
,
and
he
stood
upon
the
same
exceptions
before
,
and
he
conceived
,
that
notice
ought
to
be
given
to
him
that
he
was
chosen
Alderman
,
for
this
reason
,
because
of
the
penalty
which
he
incurs
,
which
is
imprisonment
;
and
he
compared
it
to
the
Cases
in
the
5
Rep.
113.
b.
&
8
Rep.
92.
That
the
feoff●e
of
Land
or
a
Bargain
of
a
reversion
by
Deed
indented
and
inrolled
shall
not
take
advantage
of
a
condition
for
not
payment
of
Rent
reserved
upon
a
lease
upon
a
demand
by
them
without
notice
given
to
the
lessee
for
the
penalty
which
insues
of
forfeiture
of
his
Term.
So
in
our
Case
,
he
shall
not
incur
the
penalty
of
imprisonment
for
refusing
to
be
sworn
,
without
notice
given
him
that
he
〈…〉
chosen
Alderman
.
He
took
another
exception
to
the
Oath
,
because
he
is
to
swear
,
that
he
shall
observe
all
Laws
and
Customs
of
the
said
City
generally
,
which
is
not
good
;
for
that
which
was
lawful
before
,
p●radventure
will
not
be
lawful
now
;
for
some
Customs
which
were
lawful
in
the
time
of
R.
2.
are
now
superstitious
,
and
therefore
are
not
to
be
kept
.
Further
,
it
is
to
keep
all
the
customs
within
and
without
the
City
,
which
is
impossible
to
do
.
Wherefore
for
these
reasons
he
conceived
the
Retorn
not
to
be
good
,
and
prayed
that
the
prisoner
might
be
discharged
.
Saint-Iohn
Sollicitor
of
the
same
side
.
The
custom
to
imprison
is
not
good
.
Besides
,
here
the
imprisonment
is
general
,
so
that
he
may
be
imprisoned
for
ever
,
which
is
not
good
;
and
the
Statute
confirms
no
customs
but
such
as
are
good
customs
:
I
agree
that
a
custom
for
a
Court
of
Record
to
fine
,
and
for
want
of
payment
to
imprison
may
be
good
,
because
the
custom
goes
only
to
fine
and
not
to
imprisonment
;
the
Case
of
1
H.
7.
6.
of
the
custom
of
London
for
a
Constable
to
enter
a
house
and
arrest
a
Priest
,
and
to
imprison
him
for
incontinencie
comes
not
to
our
Case
,
for
that
is
for
the
keeping
of
the
peace
,
which
concerns
the
Commonwealth
,
as
it
is
said
in
the
Book
,
and
therefore
may
be
good
:
but
it
is
not
so
in
our
Case
.
A
Corporation
makes
an
ordinance
,
and
injoyns
the
observance
of
it
under
pain
of
imprisonment
,
it
hath
been
adjudged
that
the
Ordinance
is
against
the
Statute
of
Magna
Charta
,
that
Nullus
liber
homo
imprisonetur
,
&c.
and
therefore
naught
:
and
that
is
the
5
Rep.
64
a.
Clarkes
Case
,
and
therewith
agrees
the
case
of
the
City
of
London
,
8
Rep.
127.
b.
Mich.
14
&
15
Eliz.
Marshalls
Case
in
Harpers
Reports
,
there
a
Habeas
corpus
was
directed
to
the
Mayor
of
Exeter
,
who
returned
a
custom
there
that
none
but
a
freeman
should
set
up
a
shop
there
,
and
if
any
other
did
,
that
he
should
be
imprisoned
,
and
it
was
adjudged
no
good
custom
,
Mich.
21
E.
1.
in
the
Common
Pleas
,
Rot.
318.
upon
a
Habeas
corpus
the
custom
of
Cambridge
was
retorned
,
which
was
that
the
Vice-chancellor
might
imprison
a
Scholar
taken
in
a
suspicious
place
,
I
conceive
the
same
no
good
custom
,
but
it
is
not
resolved
.
Besides
,
I
conceive
the
return
here
is
insufficient
,
because
that
no
notice
was
given
to
the
party
that
he
was
chosen
Alderman
,
which
I
conceive
ought
to
have
been
for
the
great
penalty
which
follows
,
wherefore
he
prayed
that
the
prisoner
might
be
discharged
.
White
of
the
same
side
;
the
retorn
is
not
good
for
want
of
notice
;
and
he
said
,
that
it
doth
not
appear
that
he
was
present
at
the
election
,
and
no
other
notice
appeareth
by
the
Retorn
;
and
he
said
,
that
the
tender
of
the
Oath
did
not
imply
notice
:
further
he
said
,
that
the
Oath
is
not
good
,
because
he
is
to
abjure
his
Trade
.
Besides
,
it
is
said
in
the
Retorn
that
the
custom
is
,
That
Si
aliquis
liber
homo
be
elected
Alderman
,
&c.
and
doth
not
say
habilis
&
idoneus
,
as
it
ought
to
be
,
and
therefore
no
good
.
True
it
is
,
that
it
is
averred
in
the
Retorn
that
he
was
habilis
&
idoneus
,
but
it
is
not
alledged
to
be
part
of
the
custom
,
and
therefore
that
doth
not
help
it
,
wherefore
he
prayed
that
the
prisoner
might
be
discharged
.
Gardiner
,
Recorder
for
the
City
,
that
the
Retorn
is
sufficient
;
and
first
for
the
debito
modo
electus
,
where
it
was
objected
that
the
same
was
too
general
;
to
that
he
answered
,
that
no
traverse
can
be
taken
upon
it
,
and
therefore
it
is
sufficient
,
for
there
is
not
such
certainty
required
in
a
Retorn
upon
a
Habeas
corpus
as
in
pleading
,
as
it
is
resolved
in
the
Case
of
the
City
of
London
,
8
Rep.
127.
b.
128.
a.
and
according
to
that
it
is
resolved
in
9
H.
6
44.
a.
where
it
is
said
,
that
if
the
cause
in
it self
be
sufficient
upon
the
Retorn
,
it
sufficeth
although
it
be
false
;
and
although
there
be
not
so
precise
certainty
in
it
,
and
there
it
is
resolved
that
the
party
cannot
take
issue
upon
the
Retorn
,
and
yet
there
is
no
prejudice
by
it
,
for
if
it
be
false
you
may
have
a
Writ
of
false
imprisonment
,
and
therewith
agrees
11
Rep.
99.
a.
h.
Iames
Baggs
Case
and
Anne
Bedingfields
Case
,
9
Rep.
19.
whereupon
a
Ne
unque
accouple
in
legal
Matrimony
pleaded
,
the
Bishop
certified
quod
infra
nominat'
E.
&
A.
legitimo
matrimonio
copulati
fuerunt
,
to
which
Certificate
(
saith
the
Book
)
being
brief
and
direct
in
the
point
;
no
exception
was
ever
taken
;
and
if
a
Retorn
upon
a
Haleas
corpus
should
have
all
circumstances
,
it
would
be
so
long
and
perplexing
,
that
there
would
be
no
end
of
it
:
and
he
conceived
the
retorn
sufficient
notwithstanding
that
Objection
.
Now
for
the
exception
that
the
Plaintiff
had
not
notice
of
his
election
to
be
Alderman
;
to
that
he
answered
,
that
it
appeareth
clearly
that
he
had
notice
,
for
it
app●a●reth
that
the
same
day
that
he
was
elected
,
he
was
called
to
take
the
Oath
,
and
that
was
tendred
to
him
,
and
he
refused
to
be
sworn
,
which
certainly
implies
,
that
he
had
notice
.
For
the
exception
that
the
Oath
is
unreasonable
,
because
he
was
to
abjure
his
Trade
,
which
is
in
prejudice
of
the
Common-wealth
,
from
the
using
of
which
no
man
can
bind
himself
,
much
less
abjure
against
it
:
To
that
he
answered
,
that
notwithstanding
that
the
Oath
is
lawful
,
and
you
forswear
no
more
than
the
Law
doth
prohibit
you
,
for
it
doth
not
extend
to
all
Trades
,
but
only
to
such
as
sell
Bread
,
Ale
,
Wine
and
Fish
;
and
it
is
against
Law
and
Reason
,
that
he
who
hath
the
Jurisdiction
of
Bread
,
Ale
,
&c.
and
may
punish
the
misusage
of
it
,
that
he
should
exercise
the
same
Trade
himself
;
wherefore
he
conceived
that
notwithstanding
that
exception
the
Retorn
is
sufficient
▪
For
the
objection
to
the
Oath
that
he
ought
to
swear
that
,
he
will
keep
all
the
priviledges
of
the
City
,
whereas
in
truth
there
are
many
Priviledges
,
which
are
now
unlawful
,
although
that
before
they
were
lawful
,
and
therefore
,
the
same
ought
not
to
be
kept
;
to
that
he
answered
,
that
the
Oath
is
good
notwithstanding
that
Objection
,
for
i●
ought
to
be
intended
that
he
shall
keep
all
priviledges
and
customs
reasonable
which
agree
with
the
times
in
which
we
live
,
and
not
such
as
are
superstitious
and
unreasonable
.
For
the
Objection
,
that
the
custom
is
unreasonable
,
because
it
trencheth
much
upon
the
liberty
of
the
Subject
,
and
against
the
Statute
of
Magna
Charta
that
the
body
of
a
Freeman
should
be
imprisoned
,
and
the
rather
because
here
the
imprisonment
is
general
,
and
he
may
be
imprisoned
for
ever
:
to
that
it
was
answered
,
that
the
City
hath
customs
as
unreasonable
as
in
this
Case
,
as
the
custom
in
L.
5
E.
4.
30.
11
H.
6.
3.
&
2
H.
4.
12.
That
the
Creditor
may
arrest
the
Debtor
before
the
day
of
payment
to
give
better
security
,
and
that
is
altogether
against
the
Rule
of
Law
.
Besides
they
have
a
custom
which
you
shall
find
in
1
H.
7.
6.
and
2
H●●
4.
12.
That
a
Constable
upon
suspition
of
incontinencie
may
enter
the
house
of
a
stranger
and
arrest
the
body
of
the
offender
and
commit
him
to
prison
,
and
that
is
a
good
custom
,
and
yet
it
is
against
the
Law
,
&
trencheth
also
upon
the
liberty
of
the
Subject
.
Besides
,
they
have
a
custom
,
that
no
person
being
not
free
of
the
City
shall
keep
shop
there
,
and
that
is
adjudged
a
good
custom
,
although
it
be
to
restrain
trading
,
which
is
against
the
rule
of
the
Law
also
,
8
Rep.
125.
The
Case
of
the
City
of
London
.
And
for
the
objection
that
it
is
unreasonable
,
because
that
the
imprisonment
is
general
:
to
that
he
said
,
it
was
a
good
objection
if
it
were
true
,
but
that
is
mistaken
;
for
the
retorn
is
expresly
that
he
shall
be
imprisoned
until
he
hath
taken
the
Oath
,
which
is
not
general
,
for
if
he
take
the
Oath
he
shall
be
discharged
;
and
here
he
said
that
this
Government
by
Aldermen
in
this
City
is
one
of
the
most
ancient
Governments
in
the
Kingdom
,
beyond
time
of
memory
,
and
is
a
Government
which
of
necessity
ought
to
he
supported
,
or
otherwise
the
City
would
immediately
be
brought
to
ruine
,
for
we
cannot
hold
a
Court
without
thirteen
Aldermen
,
which
ought
to
have
care
of
the
Orphans
,
and
make
Laws
for
the
well
government
of
the
City
,
and
that
is
of
great
consequence
to
all
the
Kingdom
,
and
concerns
the
Government
of
it
;
and
if
this
City
be
well
governed
,
the
whole
Kingdom
will
fare
the
better
,
and
at
this
time
we
want
many
Aldermen
,
and
if
these
shall
escape
,
by
the
same
reason
others
will
do
so
,
and
so
the
Government
utterly
should
fail
.
And
where
it
was
objected
that
it
is
usual
to
make
them
to
take
the
Oath
,
and
accept
a
fine
of
them
after
:
To
that
he
said
,
that
they
would
not
do
so
now
in
this
Case
;
for
he
said
,
that
the
party
chosen
is
an
able
man
,
and
a
man
whom
they
respect
,
and
not
his
money
:
And
therefore
he
said
that
the
custom
to
imprison
him
for
refusing
is
more
reasonable
than
if
the
custom
were
to
fine
him
;
for
he
said
,
that
that
Custom
is
the
most
reasonable
custom
,
which
is
most
fit
for
the
attaining
of
its
end
;
and
he
said
,
that
imprisonment
is
most
apt
for
the
obtaining
the
end
:
for
when
we
accept
a
fine
,
there
is
no
end
of
it
,
for
he
may
be
chosen
after
;
and
how
can
the
Government
be
supported
which
is
the
end
of
the
election
if
all
should
be
fined
,
wherefore
the
custom
to
imprison
is
more
reasonable
,
than
if
the
custom
had
been
to
fine
;
because
it
is
more
apt
to
attain
the
end
;
which
is
to
maintain
the
Government
:
it
is
said
in
38
Ass.
p.
22
Br.
Imprisonment
100.
That
it
was
resolved
2
Ma.
in
Parliament
,
that
imprisonment
almost
in
all
Cases
is
but
to
detain
him
untill
he
makes
a
fine
,
and
if
he
tender
that
to
be
discharged
.
To
that
he
said
,
that
the
same
ought
to
be
understood
,
where
a
fine
is
imposed
,
but
we
do
not
intend
to
accept
of
a
fine
.
Further
he
said
,
that
there
is
a
Judgment
in
the
point
,
and
that
is
the
Statute
of
3
Iac.
cap.
4.
which
injoyns
an
Oath
for
Recusants
to
take
,
and
for
refusal
that
they
shall
be
committed
until
,
&c.
here
he
said
that
an
Act
of
Parliament
hath
done
it
in
the
like
Case
,
and
therefore
he
conceived
the
custom
reasonable
:
and
then
he
cited
many
presidents
of
commitment
in
this
very
Case
.
2
H.
5.
Iohn
Gidney
was
dealt
with
in
the
same
manner
,
8
E.
4.
Charles
Faman
was
imprisoned
,
36
H.
8.
Thomas
White
,
1
Iac.
Sir
Thomas
Middleton
,
all
which
were
imprisoned
for
refusing
to
take
the
Oath
.
And
lastly
,
he
cited
one
3
Iac.
and
that
was
Sir
William
Bonds
Case
,
who
was
imprisoned
by
the
Court
of
Aldermen
for
the
same
cause
,
and
it
came
judicially
in
question
;
and
he
said
,
that
upon
solemn
debate
it
was
resolved
,
that
he
should
be
remanded
;
wherefore
he
concluded
that
the
commitment
being
by
a
Court
of
Record
,
and
that
for
a
contempt
against
the
Court
,
and
that
for
not
observing
of
the
customs
of
the
City
which
is
against
the
Oath
of
a
freeman
,
and
which
are
confirmed
by
Act
of
Parliament
,
that
the
commitment
is
good
and
lawful
,
and
therefore
prayed
that
the
prisoner
might
be
remanded
.
And
now
this
Term
it
was
resolved
by
the
Judges
upon
solemn
debate
,
that
the
retorn
notwithstanding
any
of
the
said
exceptions
was
sufficient
.
Justice
Mallet
:
the
Retorn
is
sufficient
in
matter
and
form
,
but
for
the
matter
of
it
,
I
shall
not
ground
my self
upon
the
custom
,
but
upon
part
of
the
record
,
which
is
upon
the
contempt
,
for
although
I
agree
that
Consuetudo
loci
is
of
great
regard
,
yet
I
conceive
it
is
not
strong
enough
to
take
away
the
liberty
of
a
freeman
by
imprisonment
.
Power
to
imprison
the
body
of
a
freeman
cannot
be
gained
by
prescription
or
grant
;
and
a
grant
is
the
ground
of
a
prescription
,
and
therefore
if
it
be
not
good
in
a
grant
,
not
in
a
prescription
:
and
I
conceive
that
it
is
the
Common
Law
only
,
or
consent
to
an
Act
of
Parliament
,
that
shall
subject
the
body
of
a
freeman
to
imprisonment
;
and
it
is
resolved
in
the
5
Rep.
64.
acc
.
in
Clarkes
Case
,
and
agreed
in
8
Rep.
127.
That
a
constitution
cannot
be
made
by
a
Corporation
,
who
have
power
to
make
by-Laws
upon
pain
of
imprisonment
;
because
it
is
against
the
Statute
of
Magna
Charta
;
wherefore
I
conceive
the
power
to
imprison
the
body
of
a
freeman
cannot
be
gained
by
custom
:
but
although
it
cannot
be
gained
by
custom
,
yet
Qui
non
transeunt
per
se
,
transeunt
per
aliud
,
it
will
pass
as
a
thing
incident
to
a
Court
of
Record
;
and
therefore
although
I
hold
that
the
custom
to
imprison
is
not
good
,
yet
I
hold
that
the
imprisonment
here
by
a
Court
of
Record
for
a
contempt
made
unto
it
,
as
appeareth
by
the
Retorn
here
it
was
,
is
good
;
for
in
the
conclusion
of
the
Retorn
it
saith
,
that
he
refused
in
contemptum
Curiae
,
&c.
And
that
it
is
incident
to
a
Court
of
Record
to
imprison
,
8
Rep.
38.
b.
it
is
there
resolved
,
that
for
any
contempt
done
to
a
Court
of
Record
the
Judges
may
impose
a
fine
;
and
8
Rep.
59.
b.
It
was
resolved
,
that
to
every
fine
,
imprisonment
is
incident
.
Further
,
I
conceive
,
that
by
the
same
reason
that
a
Court
of
Record
may
imprison
for
a
fine
,
they
may
imprison
for
a
contempt
,
and
in
8
Rep.
60.
it
is
said
,
that
to
imprison
doth
belong
only
to
Courts
of
Record
:
but
which
is
in
the
point
,
it
is
resolved
,
119.
b.
in
Doctor
Bonhams
Case
,
that
it
is
incident
to
every
Court
of
Record
,
to
imprison
for
a
contempt
done
to
the
Court
:
and
he
said
,
that
if
a
Court
of
Record
should
not
have
such
a
coercive
power
,
they
should
be
in
effect
no
Court.
Wherefore
he
conceived
that
the
refusing
to
take
the
Oath
being
a
contempt
,
and
that
to
a
Court
of
Record
,
as
it
appeareth
by
the
Retorn
,
that
they
may
lawfully
commit
him
for
this
contempt
.
For
the
objection
that
the
debito
modo
electus
,
without
shewing
how
,
is
too
general
:
To
that
he
answered
,
that
it
is
only
matter
of
inducement
,
and
there
is
no
necessity
to
shew
all
matter
of
inducement
.
For
the
objection
that
he
had
not
notice
of
the
election
:
To
that
he
answered
,
that
here
is
good
notice
,
for
by
the
Retorn
it
appeareth
,
that
according
to
the
custom
after
he
was
elected
,
he
was
called
to
the
Court
,
and
the
Oath
tendred
to
him
,
and
he
refused
,
which
without
doubt
implies
notice
,
&
quod
constat
clare
non
debet
verificare
;
&
as
after
appearance
,
all
exceptions
to
process
are
taken
away
,
as
the
Books
of
9
E.
4.
18.
&
12
H.
4.
17
,
&
18.
and
many
other
Books
are
,
so
I
say
in
this
Case
,
after
appearance
,
you
shall
never
say
that
you
had
not
notice
,
for
by
your
appearance
you
admit
it
and
the
process
good
.
For
the
Objection
to
the
Oath
,
that
it
is
not
good
,
because
it
makes
a
man
abjure
his
Trade
,
which
is
against
Law
and
Reason
:
To
that
I
answer
,
that
the
Aldermen
are
intrusted
with
the
assize
of
Bread
and
Ale
,
and
so
with
Wine
and
Fish
,
and
therefore
as
it
is
unreasonable
,
so
it
is
against
the
Law
,
that
during
his
Office
he
should
use
the
Trade
of
which
he
hath
Jurisdiction
and
power
to
regulate
,
and
to
punish
the
misdemeanors
of
it
;
and
therefore
it
is
enacted
by
the
Statute
of
12
E.
2.
cap.
6.
That
no
Officer
of
a
City
or
Borough
shall
sell
Wine
or
Victuals
during
his
Office
.
It
is
true
,
that
this
Statute
is
repealed
by
the
Statute
of
3
H.
8.
cap.
8.
but
there
is
a
Proviso
in
the
Statute
that
it
extend
not
to
London
,
so
as
the
Statute
of
12
E.
2.
is
in
force
still
as
unto
London
.
Then
the
Oath
makes
him
to
abjure
no
more
than
the
Law
forbids
him
to
do
,
and
which
to
do
by
him
were
unlawful
,
wherefore
that
exception
is
not
good
.
For
the
exception
that
the
imprisonment
is
general
;
to
that
I
answer
,
that
it
is
mistaken
,
for
it
is
only
until
he
take
the
Oath
,
and
therefore
the
retorn
is
good
notwithstanding
that
exception
also
:
Now
the
end
of
imprisonment
being
obedience
,
and
the
party
here
not
obeying
but
refusing
to
take
the
Oath
,
for
which
he
is
committed
;
for
my
part
,
I
conclude
that
he
be
remanded
to
prison
.
Justice
Heath
:
that
the
Retorn
is
good
in
matter
and
form
;
and
I
ground
my self
upon
the
custom
,
for
I
conceive
that
it
is
a
good
custom
,
because
that
the
ground
of
it
is
good
and
reasonable
,
which
is
the
Government
of
the
City
,
for
that
totally
depends
upon
the
custom
;
and
I
hold
that
the
refusing
to
take
the
Oath
only
is
no
sufficient
cause
of
imprisonment
;
but
as
it
is
an
introduction
to
the
support
of
Government
,
by
keeping
of
the
customs
and
priviledges
of
the
City
,
which
every
one
by
the
Oath
of
a
freeman
is
bound
to
keep
;
and
this
custom
is
not
against
the
Statute
of
Magna
Charta
,
9
H.
3.
cap.
29.
For
that
saith
that
no
freeman
shall
be
taken
and
imprisoned
,
&c.
but
per
legem
terrae
:
Now
Consuetudo
loci
est
lex
terrae
,
for
in
the
Statute
of
52
H.
3.
cap.
3.
There
the
Law
and
custom
of
the
Realm
are
joyned
together
as
Synonyma
,
words
of
the
same
intent
.
For
the
Objection
,
That
the
custom
is
not
that
they
who
shall
be
chosen
Aldermen
,
should
be
idonei
&
habiles
,
but
it
is
only
averred
in
the
Retorn
,
that
Langham
here
chosen
to
be
Alderman
is
idoneus
&
habilis
:
to
that
I
say
,
that
we
are
to
judge
upon
the
Retorn
as
it
is
before
us
,
and
if
upon
the
whole
matter
there
appeareth
sufficient
matter
for
us
to
adjudge
the
commitment
lawful
,
be
it
true
or
false
we
ought
to
judge
according
to
it
;
and
if
the
Retorn
be
false
,
you
have
your
remedy
by
way
of
Action
upon
the
Case
;
and
in
this
Case
it
is
expresly
averred
that
the
party
chosen
is
idoneus
&
habilis
,
and
it
lies
not
in
your
power
or
in
ours
to
gain
say
it
,
wherefore
I
conceive
that
exception
worth
nothing
.
I
agree
that
the
Statute
doth
not
confirm
ill
and
unreasonable
customs
,
but
here
I
say
(
as
before
)
that
this
custom
hath
a
good
and
lawful
foundation
,
and
therefore
it
may
be
well
confirmed
;
and
the
Oath
although
it
be
in
general
Terms
,
yet
it
ought
to
be
taken
,
that
he
do
keep
and
observe
such
reasonable
and
lawful
Priviledges
and
no
other
.
For
the
notice
,
I
say
,
that
it
is
manifest
,
that
he
had
notice
;
which
he
conceived
would
be
good
evidence
to
a
Jury
,
and
that
upon
such
evidence
they
would
find
for
the
Plaintiff
;
and
for
the
debito
modo
electus
,
he
conceived
it
is
good
enough
,
because
that
in
the
Retorn
upon
a
Habeas
corpús
such
precise
certainty
is
not
required
as
in
pleading
:
and
for
the
imprisonment
it
is
not
in
general
,
and
so
may
happen
to
be
perpetual
,
as
was
objected
;
but
it
is
until
he
take
the
Oath
,
wherefore
upon
the
whole
matter
I
conceive
the
retorn
is
sufficient
,
and
that
the
prisoner
ought
to
be
remanded
.
Bramston
Chief
Justice
:
the
custom
is
good
,
and
none
of
the
exceptions
to
the
Retorn
good
,
and
therefore
the
prisoner
ought
to
be
remanded
.
The
Question
upon
the
custom
is
only
whether
this
custom
,
as
it
is
here
set
forth
by
the
retorn
,
to
imprison
the
body
of
a
freeman
be
good
or
not
;
and
as
I
have
said
before
,
I
hold
it
to
be
a
good
custom
,
and
that
upon
this
difference
,
that
a
custom
generally
to
imprison
the
body
of
a
freeman
is
not
a
good
custom
.
But
a
custom
(
as
it
is
here
)
for
a
Court
of
Record
to
imprison
the
body
of
a
man
who
is
chosen
a
great
Officer
for
refusing
to
take
the
office
upon
him
without
which
the
Government
cannot
subsist
,
is
a
good
custom
:
Besides
,
here
being
a
contempt
refusing
to
take
the
Oath
,
the
Court
may
imprison
the
body
for
it
,
without
any
custom
to
help
it
,
for
it
is
incident
to
a
Court
of
Record
to
imprison
.
I
agree
the
Case
which
was
objected
by
Master
Sollicitor
of
21
E.
1.
where
the
custom
of
Cambridge
is
,
that
the
Vice-chancellor
may
imprison
a
Scholar
taken
in
a
suspitious
place
,
that
is
no
good
custom
,
for
it
no
way
concerns
the
supportation
of
Government
or
the
Commonwealth
,
and
they
may
punish
him
another
way
,
which
may
be
good
and
as
effectual
as
imprisonment
:
but
not
so
in
our
Case
,
for
if
in
this
time
in
which
there
are
many
Aldermen
wanting
,
all
should
be
fined
,
what
will
become
of
the
Government
?
Further
,
I
agree
that
the
custom
to
imprison
for
forein
buying
and
selling
is
no
good
custom
;
upon
the
difference
before
taken
:
all
great
Officers
have
a
proper
Oath
belonging
to
them
,
which
is
very
needful
for
the
greater
ingagement
of
men
in
the
due
execution
of
their
Offices
,
which
so
much
concerns
the
Publike
;
and
if
they
refuse
to
take
it
,
they
are
punishable
for
it
;
and
this
place
in
which
Master
Langham
is
chosen
Alderman
is
the
most
great
place
of
Government
in
the
Realm
,
and
of
greatest
consequence
to
the
whole
Kingdom
,
and
therefore
if
it
should
not
be
supplied
with
Aldermen
,
who
is
it
who
doth
not
see
the
great
inconvenience
which
would
follow
?
and
therefore
I
hold
that
the
custom
to
imprison
until
he
take
the
Oath
,
and
so
by
consequence
the
Office
upon
him
(
for
refusing
of
the
Oath
is
refusing
of
the
Office
)
is
a
good
custom
;
now
for
the
Oath
,
it
is
the
usual
Oath
which
hath
been
taken
time
out
of
mind
,
&c.
And
it
is
reasonable
and
well
penned
.
For
the
Objection
that
it
is
unreasonable
,
because
it
makes
a
man
to
abjure
his
Trade
:
To
that
I
answer
,
that
it
is
reasonable
,
and
makes
him
abjure
no
more
than
the
Law
forbids
him
to
do
,
for
it
is
not
reasonable
that
he
who
hath
the
Jurisdiction
of
assise
of
Bread
and
Ale
,
Wine
and
Fish
,
that
he
during
his
Office
should
sell
those
things
by
retail
.
Now
that
the
Mayor
and
Aldermen
of
London
have
this
Jurisdiction
,
see
the
Statute
of
31
E.
cap.
3.
10.
for
Fish
;
the
Statute
of
23
H.
8.
cap.
4.
for
Ale
and
Beer
;
and
28
H.
8.
cap.
14.
for
Wine
,
where
in
these
Cases
power
is
given
to
all
Head-Officers
of
Cities
,
Burroughs
and
Towns-corporate
to
punish
the
Offenders
against
the
rates
and
Assises
of
the
things
aforesaid
:
and
by
the
Statute
of
12
E.
2.
cap.
6.
it
is
expresly
ordained
,
that
no
Officer
of
a
City
or
Burrough
should
sell
Wine
or
Victuals
during
his
Office
.
I
confess
this
Statute
is
repealed
by
the
Statute
of
3
H.
8.
but
yet
there
is
a
Provision
in
that
Statute
that
it
extend
not
to
London
:
then
the
Law
being
that
none
of
those
things
shall
be
sold
by
any
Officer
by
retail
during
his
Office
;
the
Oath
which
makes
a
man
to
abjure
that
which
the
Law
forbids
,
of
necessity
ought
to
be
taken
as
lawful
:
besides
,
there
is
a
Writ
grounded
upon
the
Statute
of
12
E.
2.
which
you
shall
find
in
the
Register
184.
a.
&
Fitz.
N.
B.
173.
b.
that
the
party
grieved
might
have
directed
to
the
Justices
of
assises
,
commanding
them
to
send
for
the
parties
,
and
to
do
right
,
&c.
Wherefore
I
hold
the
Oath
good
and
lawful
notwithstanding
this
Objection
.
For
the
point
of
notice
,
I
conceive
it
is
not
needful
,
and
if
it
be
,
I
ask
who
it
is
ought
to
give
notice
in
this
Case
,
and
I
say
that
no
person
is
tied
to
do
it
,
wherefore
he
ought
to
take
notice
of
it
at
his
peril
.
For
the
debito
modo
electus
,
I
say
that
it
is
good
,
being
in
a
Retorn
upon
a
Habeas
corpus
,
&
it
is
said
,
that
it
was
secundum
consuetudinem
,
which
includes
all
things
needful
for
the
objection
.
That
it
is
averred
in
the
retorn
that
he
was
idoneus
&
habilis
,
but
that
it
is
no
part
of
the
custom
that
it
should
be
so
,
for
it
is
only
in
general
,
Si
aliquis
liber
homo
,
and
doth
not
say
habilis
&
idoneus
,
and
therefore
the
custom
should
not
be
good
:
I
answer
,
that
it
is
averred
in
the
Retorn
,
that
it
is
so
,
that
he
is
elected
,
and
that
is
sufficient
for
us
to
ground
our
Judgment
:
but
further
,
I
conceive
that
the
debito
modo
helps
it
,
wherefore
upon
the
whole
matter
I
conclude
that
the
custom
is
good
,
and
the
Retorn
sufficient
,
and
therefore
that
the
prisoner
be
remanded
.
Pasch.
18ᵒ
Car'
in
the
Common
Pleas.
Barrow
against
Wood
in
Debt
.
238.
IN
Debt
upon
an
Obligation
brought
by
Barrow
against
Wood
,
the
Defendant
,
demanded
Oyer
of
the
condition
,
&
ei
legitur
,
&c.
and
the
effect
of
it
was
this
,
That
the
Defendant
should
not
keep
a
Mercers-shop
in
the
Town
of
Tewkesbury
;
and
if
he
did
,
that
then
within
three
moneths
he
should
pay
forty
pound
to
the
Plaintiff
:
upon
which
the
Defendant
did
demur
in
Law
,
and
the
point
is
only
whether
the
condition
be
good
or
not
.
Serjeant
Evers
:
the
condition
is
good
,
because
it
is
no
total
restraint
,
for
it
is
a
restraint
here
only
to
Tewkesbury
,
and
not
to
any
other
place
,
wherefore
I
conceive
the
condition
good
.
I
agree
the
Case
in
11
Rep.
53.
b.
where
a
man
binds
himself
not
to
use
his
Trade
for
two
years
,
or
if
a
husbandman
be
bound
he
shall
not
plough
his
Land
,
these
are
conditions
against
Law
,
because
where
the
restraint
is
total
,
although
it
be
temporal
,
there
the
condition
is
not
good
;
but
the
condition
is
not
totally
restrictive
in
our
Case
:
and
he
compared
this
Case
to
the
Case
in
7
H.
6.
43.
feoffee
with
warranty
;
Proviso
,
that
the
feoffee
shall
not
vouch
it
is
a
good
condition
,
because
not
totally
restrictive
;
for
although
that
the
feoffee
cannot
vouch
,
yet
he
may
rebut
:
so
in
this
Case
,
although
the
Obligor
cannot
use
his
Trade
in
Tewkesbury
,
yet
he
may
use
it
in
any
other
place
.
And
the
Condition
is
not
against
Law
;
for
if
it
were
such
a
condition
,
then
I
agree
it
would
be
naught
;
but
yet
the
Bond
would
stand
good
,
for
this
is
not
a
condition
to
do
an
act
which
is
Malum
in
se
,
for
there
the
condition
is
naught
&
the
Bond
also
,
as
2
E.
4.
2.
b.
by
Cooke
&
Instit.
206.
b.
But
although
a
man
cannot
make
a
feoffm●●t
upon
condition
that
the
feoffee
shall
not
alien
,
yet
the
feoffee
may
bind
himself
that
he
will
not
alien
,
and
the
Bond
is
good
;
and
so
I
say
in
our
Case
,
and
if
the
condition
in
this
Case
should
not
be
good
,
it
would
be
very
inconvenient
;
for
it
is
a
usual
thing
in
a
Town
in
the
Country
,
for
a
man
to
buy
the
shop
of
another
man
&
all
his
Wares
in
it
,
and
if
(
the
same
being
a
small
town
,
where
one
of
that
profession
would
serve
for
the
whole
Town
)
he
who
bought
the
shop
and
wares
should
not
have
the
power
to
restrain
him
(
the
same
being
the
ground
&
reason
of
the
contract
)
from
using
of
that
trade
in
that
pla●e
,
it
would
be
very
inconvenient
,
wherefore
he
conceived
that
the
condition
was
good
,
and
prayed
Judgment
for
the
Plaintiff
.
Serjeant
Clarke
for
the
Defendant
,
that
the
condition
is
not
good
,
for
it
is
against
the
Law
,
and
void
,
because
it
takes
away
the
livelihood
of
a
man
,
&
that
is
one
of
the
reasons
against
Monopolies
,
11
Rep.
86
,
&
87.
And
that
I
conceive
is
grounded
upon
the
Law
of
God
,
for
in
Deut.
chap.
24.
ver
.
6.
it
is
said
,
that
you
shall
not
take
in
pledge
the
nether
and
upper
milstone
,
for
that
is
his
life
.
So
that
by
the
Law
of
God
the
restraining
of
any
man
from
his
Trade
which
is
his
livelihood
is
not
lawful
.
And
surely
,
our
Law
ought
not
to
be
against
the
Law
of
God
;
and
that
is
the
reason
,
as
I
conceive
,
wherefore
by
our
Law
the
Utensils
of
a
mans
Profession
cannot
be
distreined
,
because
by
that
means
the
means
of
his
livelihood
should
be
taken
away
.
And
2
H.
5.
fol.
5.
b.
by
Hull
,
the
condition
is
against
Law
,
and
yet
the
case
there
is
the
very
Case
with
our
case
,
for
there
a
man
was
bound
,
that
he
should
not
use
his
Art
in
D.
for
two
years
;
whereupon
Hull
swore
by
God
,
that
if
the
Obligee
were
present
he
should
go
to
prison
till
he
had
paid
a
fine
to
the
King
,
because
the
Bond
is
against
Law
,
and
therewith
agrees
the
11
Rep.
53.
b.
&
7
E.
3.
65.
A
Farmer
covenants
not
to
sow
his
land
;
the
covenant
is
void
:
so
as
I
conceive
that
although
the
condition
be
restrictive
only
to
one
place
,
or
for
a
time
,
yet
because
it
takes
away
the
livelihood
of
a
man
for
the
time
,
the
condition
is
against
Law
,
and
void
;
and
he
cited
a
Case
in
the
point
against
Clegat
and
Batcheller
,
Mich.
44
Eliz.
in
this
Court
,
Rot.
3715.
where
the
condition
of
a
Bond
was
,
That
he
should
not
use
his
Trade
in
such
a
place
;
and
it
was
adjudged
that
the
condition
was
against
Law
,
and
therefore
the
Bond
void
;
and
for
these
reasons
he
prayed
that
Judgment
might
be
entred
,
that
the
Plaintiff
nihil
capiat
per
billam
.
Justice
Reeve
did
produce
some
Presidents
in
the
point
;
and
he
said
that
the
Law
as
it
had
been
adjudged
,
stood
upon
this
difference
betwixt
a
contract
,
or
Assumpfit
,
and
an
Obligation
:
A
man
may
contract
or
promise
that
he
will
not
use
his
Trade
,
but
he
cannot
bind
himself
in
a
Bond
not
to
do
it
;
for
if
he
do
so
it
is
void
.
And
for
that
he
cited
Clegat
and
Batchellers
Case
before
,
that
the
obligation
in
such
Case
is
void
;
and
he
said
,
that
the
reason
which
was
given
by
one
,
why
the
Bond
should
be
void
,
was
grounded
upon
the
Statute
of
Magna
Charta
,
cap.
29.
which
wills
,
That
no
freeman
should
be
ousted
of
his
Liberties
but
per
legem
terrae
;
and
he
said
,
that
the
word
Liberties
did
extend
to
Trades
;
and
Reeve
said
,
that
by
the
same
reason
you
may
restrain
a
man
from
using
his
Trade
for
a
time
,
you
may
restrain
him
for
ever
.
And
he
said
,
that
he
was
confident
that
you
shall
never
find
one
Report
against
the
Opinion
of
Hull
,
2
H.
5.
For
the
other
part
of
the
difference
,
he
cited
Hill
.
17
Iac.
in
this
Court
,
Rot.
1265.
and
19
Iac.
in
the
Kings
Bench
Braggs
case
;
in
which
Cases
he
said
,
it
was
adjudged
against
the
Action
upon
a
Bond
,
but
with
the
Action
of
the
Case
upon
a
promise
that
it
would
lie
.
But
note
,
that
all
the
Judges
,
viz.
Foster
,
Reeve
and
Crawley
(
Bankes
being
absent
)
held
clearly
,
that
if
the
condition
be
against
the
Law
,
that
all
is
void
,
and
not
the
condition
only
as
was
objected
by
Evers
,
and
it
was
adjorned
.
Apsly
against
Boys
in
the
Common
Pleas
in
a
Scire
facias
,
to
execute
a
Fine
upon
a
Grant
and
Render
,
Intrat
Trin.
16
Car.
Rot.
112.
239.
THe
Case
upon
the
Pleading
was
this
:
A
fine
upon
a
Grant
and
Render
was
levied
in
the
time
of
E.
4.
upon
which
afterwards
a
Scire
facias
was
brought
,
and
Judgment
given
,
and
a
Writ
of
seisin
awarded
but
not
executed
.
Afterwards
a
fine
Sur
co●usans
de
droit
come
ceo
,
&c.
with
Proclamations
was
levied
,
and
five
years
passed
,
and
now
another
Scire
facias
is
brought
to
execute
the
first
fine
,
to
which
the
fine
Sur
conusance
de
droit
come
ceo
is
pleaded
;
so
as
the
only
Question
is
,
Whether
the
fine
with
Proclamations
shall
bar
the
Scire
facias
or
not
.
Serjeant
Gotbold
for
the
Plaintiff
,
it
shall
not
bar
;
and
his
first
reason
was
,
because
not
executed
,
1
Rep.
96
,
97.
and
8
Rep.
100.
If
a
disseisor
at
the
Common
Law
before
the
Statute
of
Non-claim
,
had
levied
a
fine
,
or
suffered
Judgment
in
a
Writ
of
Right
until
Execution
sued
,
they
were
no
bars
,
and
a
fine
at
Common
Law
was
of
the
same
force
as
it
is
now
,
and
if
in
those
Cases
no
bar
at
Common
Law
until
Execution
,
that
proves
that
this
interest
by
the
fine
upon
grant
and
render
is
not
such
an
interest
as
can
bar
another
fine
,
before
execution
.
Besides
,
this
Judgment
by
the
Scire
facias
is
a
Judgment
by
Statute
,
and
Judgment
cannot
be
voided
but
by
error
or
attaint
.
Further
,
a
Scire
facias
is
not
an
Action
within
the
Statute
of
4
H.
7.
and
therefore
cannot
be
a
bar
,
41
E.
3.
13.
&
43
E.
3.
13.
Execution
upon
Scire
feci
retorned
without
another
plea
;
and
it
is
not
like
to
a
Judgment
;
for
there
the
party
may
enter
,
but
not
here
.
Besides
,
it
shall
be
no
bar
,
because
it
is
executory
only
,
and
in
custodia
legis
,
and
that
which
is
committed
to
the
custody
of
the
Law
,
the
Law
doth
preserve
it
,
as
it
is
said
in
the
1
Rep.
134.
b.
and
he
compared
it
to
the
Cases
there
put
,
and
a
fine
cannot
fix
upon
a
thing
executory
,
and
the
estate
ought
to
be
turned
to
a
right
to
be
bound
by
a
fine
,
as
it
is
resolved
in
the
10
Rep.
96.
a.
&
9
Rep.
106.
a.
Com.
373.
And
the
estate
of
him
by
the
first
fine
upon
grant
and
render
is
not
turned
to
a
right
by
the
second
fine
.
Lastly
,
the
Statute
of
4
H.
7.
is
a
general
Law
,
and
in
the
affirmative
,
and
therefore
shall
not
take
away
the
Statute
of
West
.
2.
which
gives
the
Scire
facias
,
and
in
proof
of
that
he
cited
39
H.
6.
3.
11
Rep.
63.
&
68.
and
33
H.
8.
Dyer
15.
I
agree
the
Case
which
hath
been
adjudged
,
that
a
fine
will
bar
a
Writ
of
Error
,
but
that
is
to
reverse
a
Judgment
which
is
executed
,
but
here
the
Judgment
is
not
executed
,
and
therefore
cannot
be
barred
by
the
fine
:
wherefore
he
prayed
Judgment
for
the
Plaintiff
.
Note
,
that
it
was
said
by
the
Judges
,
that
here
is
no
avoiding
of
the
fin●
,
but
it
shall
stand
in
force
,
but
yet
notwithstanding
it
may
be
barred
;
and
they
all
said
,
that
he
who
hath
Judgment
upon
the
Scire
facias
upon
the
first
fine
might
have
entred
;
and
they
strongly
inclined
,
that
the
Scire
facias
is
barred
by
the
fine
,
and
doth
not
differ
from
the
Case
of
a
Writ
of
Error
;
but
they
delivered
no
opinion
.
Taylers
Case
.
240.
THe
Case
was
thus
▪
The
Issue
in
Tail
brought
a
Formedon
in
Descend
.
and
the
Defendant
pleaded
in
Bar
,
and
confessed
the
Estate
Tail
;
but
said
,
that
before
the
death
of
the
Tenant
in
Tail
I.
S.
was
seised
in
fee
of
the
lands
in
question
,
and
levied
a
fine
to
him
,
and
five
years
passed
,
and
then
Tenant
in
Tail
died
;
&
whether
this
plea
be
a
bar
to
the
Plaintiff
or
not
was
the
Question
;
and
it
rested
upon
this
,
Whether
I.
S.
upon
this
general
Plea
shall
be
intended
to
be
in
by
disseisin
or
by
feoffment
;
for
if
in
by
disseisin
,
then
he
is
barred
,
if
by
feoffment
,
not
:
and
the
opinion
of
the
whole
Court
was
clear
without
any
debate
,
that
he
shall
be
intended
in
by
disseisin
,
and
so
the
Plaintiff
is
Bar
,
as
the
Books
are
,
3
Rep.
87.
a.
Plow
.
Com.
Stowels
Case
,
and
Bankes
Chief
Justice
said
,
that
it
shall
not
be
intended
that
Tenant
in
Tail
had
made
a
feoffment
to
bar
his
issues
unless
it
be
shewed
,
and
it
lies
on
the
other
part
to
shew
it
;
and
a
feoffment
is
as
well
an
unlawful
Act
as
a
diss●isin
,
for
it
is
a
discontinuance
.
Commins
against
Massam
in
a
Certiorare
to
remove
the
proceedings
of
the
Commissioners
of
Sewers
.
241.
THe
Case
upon
the
proceedings
was
thus
:
Lessee
for
years
of
Lands
within
a
level
,
subject
to
be
drowned
by
the
Sea
,
covenanted
to
pay
all
assessments
,
charges
and
taxes
,
towards
or
concerning
the
reparation
of
the
premisses
:
A
wall
which
was
in
defence
of
this
level
and
built
straight
,
by
a
sudden
and
inevitable
Tempest
was
thrown
down
;
one
within
the
level
subject
to
be
drowned
,
did
disburse
all
the
mony
for
the
building
of
a
new
wall
;
and
by
the
order
of
the
Commissioners
a
new
wall
was
built
in
the
form
of
a
Horshooe
;
afterwards
the
Commissioners
taxed
every
man
within
the
level
towards
the
repaying
of
the
sum
disbursed
,
one
of
which
was
the
lessee
for
years
,
whom
they
also
trusted
for
the
collecting
of
all
the
mony
;
and
charge
him
totally
for
his
land
,
not
levying
any
thing
upon
him
in
the
reversion
,
and
also
with
all
the
damages
,
viz.
use
for
the
mony
.
Less●e
for
years
died
,
the
lease
being
within
a
short
time
of
expiration
,
his
executor
enters
,
and
they
charge
him
with
the
whole
;
and
immediately
after
the
years
expired
,
&
the
executors
brought
this
Certior
are
,
upon
which
there
was
many
questions
.
Justice
Mallet
:
I
conceive
that
the
proceedings
of
the
Commissioners
are
not
lawfully
removed
into
this
Court
,
because
as
I
conceive
no
Certiorare
lies
to
remove
their
proceedings
at
this
day
,
because
that
their
proceedings
are
in
English
upon
which
I
cannot
judge
,
for
all
our
proceedings
ought
to
be
in
Latine
.
Besides
,
I
cannot
judge
upon
any
Case
if
it
be
not
before
us
by
special
verdict
,
demurrer
,
or
writ
of
Error
,
and
it
is
not
here
in
this
Case
by
any
of
those
ways
;
and
if
it
be
here
by
Certiorare
,
yet
we
are
not
enabled
to
judge
as
this
Case
is
;
for
the
conclusion
of
the
writ
is
,
Quod
faciamus
quod
de
jure
&
secundum
legem
,
&c.
fucrit
faciend.
And
as
I
have
said
before
,
we
cannot
judge
upon
English
proceedings
,
and
they
have
power
to
proceed
in
English
by
the
Statute
of
23
H.
8.
cap.
5.
by
which
Statute
they
have
a
kind
of
Legislative
power
given
,
for
it
doth
not
reserve
any
power
to
us
,
to
redress
their
proceedings
;
and
as
I
conceive
no
writ
of
error
lieth
at
this
day
to
correct
their
proceedings
,
because
that
they
are
in
English
;
and
if
they
have
Jurisdiction
and
proceed
according
to
it
,
we
have
no
power
to
correct
them
;
because
that
the
Statute
leaves
them
at
large
to
proceed
according
to
their
discretions
.
But
where
they
have
no
Jurisdictio●
,
there
we
may
correct
them
.
True
it
is
,
that
before
the
Statute
of
23
H.
8.
there
are
many
Presidents
of
Certioraries
to
remove
the
proceedings
of
the
Commissioners
of
Sewers
into
this
Court
,
for
then
their
proceedings
were
in
Latin
,
but
I
do
not
find
any
since
the
Statute
:
wherefore
I
conclude
that
no
Certiorare
will
lie
in
this
Case
,
and
then
the
proceedings
not
being
lawfully
removed
I
cannot
judge
upon
them
,
wherefore
I
speak
nothing
to
the
matter
in
Law
contained
in
the
proceedings
of
the
Commissioners
.
Heath
:
I
conceive
notwithstanding
any
thing
alledged
by
my
brother
Mallet
that
this
Court
is
well
possessed
of
the
Cause
,
and
may
well
determine
it
:
the
Question
here
was
no●
,
whether
the
Cause
be
well
removed
,
but
whether
the
Commissioners
have
well
proceeded
as
this
Case
is
,
or
not
;
I
hold
that
the
cause
is
well
removed
by
the
Certiorare
;
there
is
no
Court
whatsoever
but
is
to
be
corrected
by
this
Court
:
I
agree
that
after
the
Statute
no
Writ
of
Error
lieth
upon
their
proceedings
,
but
that
proves
not
that
a
Certiorare
lies
not
,
they
are
enabled
by
the
Statute
to
proceed
according
to
their
discretions
,
&
therefore
if
they
proceed
secundum
aequu●
&
bonum
,
we
cannot
correct
them
;
but
if
they
proceed
〈◊〉
they
have
no
Jurisdiction
,
or
without
Commission
,
or
contrary
to
their
Commission
,
or
not
by
Jury
,
then
they
are
to
be
corrected
here
:
if
a
Court
of
Equity
proceed
where
they
ought
not
,
we
grant
a
Prohibition
.
Without
question
in
trespass
or
Replevin
their
proceedings
are
examinable
here
;
and
I
see
no
reason
but
upon
the
same
ground
in
a
Certiorare
they
cannot
make
a
decree
of
things
meerly
collateral
,
or
concerning
other
persons
;
here
they
have
certified
their
Commission
,
and
that
the
assessment
was
by
a
Jury
of
twelve
men
,
but
if
they
had
certified
that
it
was
per
sacrament
.
Iuratorum
generally
without
saying
twelve
men
,
it
had
not
been
good
,
as
it
was
by
us
lately
adjudged
,
because
that
for
any
thing
appears
to
the
contrary
it
might
be
by
two
or
three
only
,
where
it
ought
to
be
by
twelve
;
and
I
conceived
they
have
well
done
here
in
laying
all
upon
the
lessee
for
years
:
by
the
Law
of
Sewers
,
all
which
may
be
endamaged
;
or
have
benefit
,
are
chargeable
,
and
it
is
in
their
discretion
so
to
do
.
But
in
this
case
they
may
charge
the
lessee
or
lessor
(
if
not
for
the
special
covenant
of
the
lessee
)
at
their
discretions
,
for
the
Statute
saith
owners
or
occupiers
;
&
I
conceive
that
the
covenant
here
doth
bind
the
lessee
,
for
it
is
presumed
that
he
hath
considerable
benefit
for
it
,
and
the
Commissioners
may
take
notice
of
it
.
But
if
the
covenant
doth
not
bind
the
lessee
,
yet
I
for
my
part
will
not
reverse
their
decree
for
that
,
because
that
where
they
have
Jurisdiction
they
may
proceed
according
to
their
discretions
,
and
he
covenanted
to
pay
all
taxes
concerning
the
premisses
,
and
here
it
concerns
the
premisses
although
the
wall
be
in
a
new
form
:
and
it
was
objected
,
that
it
is
now
fallen
upon
an
executor
,
which
is
hard
;
which
is
not
so
because
the
testator
was
chargeable
,
and
here
the
executor
occupies
although
it
be
but
for
a
short
time
,
and
he
was
an
occupier
at
the
time
of
the
decree
,
and
therefore
it
is
reason
that
he
should
be
charged
.
But
it
was
further
objected
that
he
hath
not
assets
;
I
answer
,
that
was
not
alledged
before
the
Commissioners
;
and
if
an
Action
be
brought
against
executors
at
the
Common
Law
,
and
they
plead
,
and
take
not
advantage
of
not
having
assets
,
it
is
their
own
fault
,
and
therefore
shall
be
charged
:
so
here
.
But
it
was
further
objected
,
that
the
Commissioners
have
not
Jurisdiction
of
damages
,
viz.
with
the
interest
of
the
mony
.
But
I
hold
clearly
otherwise
,
that
they
having
Jurisdiction
of
the
principal
,
shall
have
Jurisdiction
of
the
damages
;
wherefore
I
conclude
that
the
Commissioners
have
well
done
,
and
that
their
decree
is
good
.
Bramston
Chief
Justice
:
in
this
Case
there
are
five
points
.
First
,
whether
the
covenant
shall
extend
to
this
new
wall
or
not
.
Secondly
,
whether
this
collateral
covenant
be
within
their
Jurisdiction
or
not
.
Thirdly
,
whether
their
power
do
extend
to
an
executor
or
not
.
Fourthly
,
whether
they
have
Jurisdiction
of
damages
or
not
.
And
lastly
,
whether
their
proceedings
be
lawfully
removed
by
this
Certiorare
or
not
:
for
the
latter
I
hold
that
their
proceedings
are
lawfully
removed
,
and
that
the
Certiorare
lieth
at
this
day
to
remove
their
proceedings
;
but
I
confess
,
if
I
had
thought
of
it
,
I
would
not
have
granted
it
so
easily
,
but
it
was
not
made
any
scruple
at
the
Bar
,
nor
any
thing
said
to
it
,
and
hereafter
I
shall
be
very
tender
in
granting
of
them
.
True
it
is
,
before
the
Statute
of
23
H.
8.
they
were
common
,
but
there
are
few
to
be
found
after
the
Statute
,
and
we
ought
to
judge
here
as
they
ought
to
judge
there
,
and
we
cannot
determine
any
thing
upon
English
proceedings
,
and
at
first
I
put
that
doubt
to
the
Clerks
of
the
Court
,
Whether
if
we
confirm
their
decree
,
we
ought
to
remand
it
,
or
whether
we
ought
to
execute
it
by
Estreat
into
the
Exchequer
or
not
,
and
they
could
not
resolve
me
,
wherefore
I
much
doubted
whether
we
might
proceed
to
question
their
decree
upon
this
Certiorare
or
not
.
But
because
I
was
informed
that
the
parties
by
agreement
have
made
this
case
as
it
is
here
before
us
upon
the
Certiorare
and
have
bound
themselves
voluntarily
in
a
recognisance
to
stand
to
the
Judgment
of
the
Court
upon
the
proceedings
as
they
were
removed
upon
the
Certiorare
by
the
agreement
of
the
parties
,
therefore
I
did
not
stick
upon
the
,
Certiorare
,
because
what
was
done
was
by
consent
,
&
consensus
tollit
errorem
,
if
any
be
.
Now
for
the
points
as
they
arise
upon
the
proceedings
of
the
Commissioners
▪
and
for
the
first
,
I
hold
that
the
covenant
doth
well
extend
to
this
new
wall
;
and
the
making
of
it
in
the
form
of
a
horshooe
is
not
material
,
so
as
it
be
adjoyning
to
the
land
as
it
here
was
,
for
that
may
be
ordered
according
to
their
discretions
:
it
is
a
rule
in
Law
,
that
the
covenant
of
every
man
ought
to
be
construed
very
strong
against
himself
;
and
although
that
in
this
Case
the
new
wall
be
not
parcel
of
the
premisses
,
as
it
was
at
the
time
of
the
covenant
;
because
that
the
wall
then
in
esse
and
to
which
the
covenant
did
extend
was
a
straight
wall
,
yet
according
to
the
words
of
the
covenant
,
this
tax
is
towards
the
reparation
of
the
premisses
,
and
if
it
should
not
extend
to
this
new
wall
,
the
covenant
should
be
idle
and
vain
;
and
clearly
,
the
meaning
of
the
parties
was
,
that
it
should
extend
to
all
new
walls
.
For
the
second
point
,
I
hold
the
covenant
,
although
it
be
a
collateral
thing
,
within
their
Jurisdiction
:
true
it
is
,
as
it
is
said
in
28
H.
8.
that
contracts
are
as
private
Laws
betwixt
party
and
party
:
but
you
ought
to
know
that
their
Commission
gives
them
power
to
charge
every
man
according
to
his
tenure
,
portion
,
and
profit
;
and
he
who
is
bound
by
custom
or
prescription
to
repair
such
walls
is
not
within
the
words
of
their
Commission
;
yet
it
is
resolved
in
the
10
Rep.
139
,
140.
in
Kighleys
case
that
the
Commissioners
may
take
notice
of
it
,
and
charge
him
only
for
the
reparations
,
where
there
is
default
in
him
and
the
danger
not
inevitable
;
and
by
the
same
reason
you
may
exclude
this
covenant
to
be
out
of
their
Jurisdiction
,
you
may
exclude
prescription
also
.
I
agree
that
where
the
covenant
is
meerly
collateral
,
as
if
a
man
who
is
a
stranger
covenants
to
pay
charges
for
repairing
of
such
a
wall
,
that
that
is
not
within
their
Jurisdiction
,
because
he
is
a
meer
stranger
,
and
cannot
be
within
their
Commission
;
but
in
our
Case
it
is
otherwise
,
for
the
covenantor
is
occupier
of
the
land
,
and
it
hath
been
adjudged
,
that
if
lands
or
chattels
are
given
for
the
reparation
of
a
Sea-wall
,
that
it
is
within
their
Jurisdiction
,
and
they
may
meddle
with
it
,
&
that
is
as
collateral
as
the
covenant
in
question
,
wherefore
I
hold
that
the
covenant
is
within
their
Jurisdiction
.
For
the
third
point
,
I
hold
that
they
may
well
charge
the
executor
,
for
the
executor
here
hath
the
lease
as
executor
:
but
it
was
objected
,
That
the
term
is
now
determined
,
and
peradventure
the
executor
hath
not
assets
;
To
that
I
answer
,
that
it
is
admitted
that
he
hath
assets
,
for
the
Commissioners
cannot
know
whether
he
hath
assets
or
not
,
and
therefore
he
ought
to
have
alledged
the
same
before
the
Commissioners
,
and
because
he
hath
not
done
it
he
hath
lost
that
advantage
,
and
it
shall
be
intended
that
he
hath
assets
by
not
gain-saying
of
it
.
Fourthly
,
for
the
damages
,
I
first
chiefly
doubted
of
that
,
but
now
I
hold
that
it
is
within
their
Jurisdiction
:
Put
case
that
one
in
extreme
necessity
,
as
in
this
Case
,
disburse
all
the
money
for
the
reparations
or
the
wall
,
or
Sea-bank
,
if
the
Case
had
gone
no
further
clearly
,
he
shall
be
repaid
by
the
tax
and
levy
after
;
and
I
conceive
by
the
same
reason
they
have
power
to
allow
him
damages
and
use
for
his
mony
;
for
if
it
should
not
be
so
,
it
would
be
very
inconvenient
,
for
who
would
after
disburse
all
the
money
to
help
that
imminent
danger
and
necessity
if
he
should
not
be
allowed
use
for
his
money
?
and
the
Lessee
here
is
only
charged
with
the
damages
for
the
money
collected
which
he
had
in
his
hands
,
and
converted
to
his
own
use
,
and
therefore
it
is
reasonable
that
he
should
be
charged
with
all
the
damages
.
Besides
,
they
having
conusans
of
the
principal
,
have
conusans
of
the
accessory
as
in
this
Case
of
the
damages
,
and
he
urged
Fitz.
113.
a.
to
prove
that
before
the
Statute
of
23
H.
8.
they
had
a
Court
,
and
were
called
Justices
:
but
he
held
as
it
was
agreed
before
,
That
no
Writ
of
Error
lieth
after
this
Statute
,
but
yet
he
said
that
the
party
grieved
should
be
at
no
loss
thereby
;
for
he
said
,
that
where
the
party
cannot
have
a
Writ
of
Error
,
nor
Audita
querela
,
there
he
shall
be
admitted
to
plead
,
as
in
11
H.
7.
10.
a.
Where
a
Recognisance
of
debt
passed
for
the
King
upon
issue
tried
,
and
afterwards
the
King
pardons
it
,
the
party
after
Judgment
may
plead
it
,
because
Audita
querela
doth
not
lie
against
the
King
,
and
where
a
man
is
not
party
to
a
Judgment
,
there
he
cannot
have
a
Writ
of
Error
,
but
there
he
may
falsifie
,
so
I
conceive
that
he
may
in
this
Case
,
because
he
cannot
have
a
Writ
of
Error
;
and
I
conceive
as
it
hath
been
said
before
,
that
after
the
Statute
of
23
H.
8.
the
Commissioners
of
Sewers
have
a
mixt
Jurisdiction
of
Law
and
equity
.
For
the
Certiorare
I
will
advise
hereafter
how
I
grant
it
,
although
I
conceive
(
as
I
have
said
before
)
that
a
Certiorare
lies
after
the
Statute
,
and
is
not
taken
away
by
the
Statute
,
and
I
conceive
in
some
clearness
that
it
may
be
granted
where
any
fine
is
imposed
upon
any
man
by
Commissioner
,
which
they
have
authority
to
do
by
their
Commission
;
as
appeareth
by
the
Statute
to
moderate
it
in
Case
that
it
be
excessive
.
But
as
I
have
said
before
,
because
that
the
parties
by
agreement
voluntarily
bound
themselves
by
Recognisance
to
stand
to
the
judgment
of
this
Court
upon
the
proceedings
as
they
are
certified
,
that
made
me
at
this
time
not
to
stand
upon
the
Certiorare
,
wherefore
I
do
confirm
the
decree
.
242.
Rolls
moved
this
Case
:
A.
did
suffer
B.
to
leave
a
trunk
in
his
house
,
Whether
B.
might
take
it
away
without
the
special
leave
of
A.
was
the
Question
.
Justice
Mallet
,
leave
is
intended
;
but
Rolls
conceived
that
he
could
not
take
it
without
leave
.
Hammon
against
Roll
,
Pasch.
18.
Car.
in
the
Common
Pleas.
243.
IN
an
Action
upon
the
Case
upon
Assumpsit
,
the
Case
upon
special
verdict
was
this
:
A.
and
B.
were
bound
joyntly
and
severally
in
a
Bond
to
C.
who
released
to
A.
afterwards
there
being
a
communication
betwixt
B.
and
C.
concerning
the
said
debt
,
B.
in
consideration
that
C.
would
forbear
him
the
payment
of
the
said
mony
due
and
payable
upon
the
said
Bond
till
such
a
day
promised
to
pay
it
,
&c.
C.
for
default
of
payment
at
the
said
day
,
brought
this
Action
upon
the
Case
.
B.
pleaded
the
general
issue
,
and
thereupon
the
whole
matter
before
was
found
by
the
Jury
.
Serjeant
Clarke
:
here
is
not
any
good
consideration
whereupon
to
ground
an
Assumpsit
,
because
by
the
release
to
one
obligor
the
other
is
discharged
;
and
then
there
being
no
debt
,
there
can
be
no
consideration
,
and
therefore
the
promise
void
,
because
it
is
but
nudum
pactum
.
Rolls
contrary
,
that
there
is
a
good
consideration
;
because
that
although
by
the
release
to
one
obligor
,
the
debt
of
the
other
be
discharged
sub
modo
,
viz.
if
the
other
can
get
it
in
his
power
to
plead
,
yet
it
is
no
absolute
discharge
;
for
if
he
cannot
get
it
into
his
hand
to
plead
it
,
he
shall
never
take
advantage
of
it
,
and
then
if
it
be
no
absolute
discharge
,
but
only
sub
modo
,
viz.
if
he
can
procure
it
into
his
hand
to
plead
,
then
the
consideration
is
good
,
for
perhaps
he
shall
never
get
it
.
Justice
Foster
asked
him
if
by
this
release
the
debt
be
not
intirely
discharged
:
to
which
he
answered
,
No
,
as
to
B.
only
,
but
sub
modo
as
I
have
said
before
;
but
he
said
,
and
with
him
agreed
the
whole
Court
,
that
the
Law
is
clearly
otherwise
that
the
debt
is
intirely
gone
and
discharged
;
and
then
clearly
there
can
be
no
consideration
in
this
Case
.
Justice
Reeve
:
every
promise
ought
to
have
a
consideration
,
and
that
ought
to
be
either
benefit
to
him
that
makes
it
,
or
disadvantage
to
him
to
whom
it
is
made
,
and
in
this
Case
the
consideration
which
is
the
ground
of
the
Assumpsit
is
neither
benefit
to
him
that
made
it
,
nor
disadvantage
to
hi●
to
whom
it
was
made
,
because
there
was
no
debt
;
for
it
was
totally
discharged
by
the
release
made
to
A.
Crawley
agreed
to
it
;
Bankes
Chief
Justice
was
absent
.
But
because
the
obligation
was
laid
to
be
made
in
London
;
and
no
Ward
or
Parish
certain
put
from
whence
the
Visne
should
come
,
they
conceived
clearly
that
it
was
not
good
.